Evans v. Shand
| Decision Date | 15 August 1929 |
| Docket Number | 4802 |
| Citation | 74 Utah 451,280 P. 239 |
| Court | Utah Supreme Court |
| Parties | EVANS v. SHAND |
Appeal from District Court, Third District, Salt Lake County; W. S Marks, Judge.
Action by A. J. Evans, executor, against Louise Shand. Judgment for plaintiff, and defendant appeals.
REVERSED AND REMANDED.
Fisher Harris, of Salt Lake City, for appellant.
Evans & Sullivan, of Salt Lake City, for respondent.
In the complaint it, in substance, is alleged that the plaintiff's testatrix, at the time of the alleged transaction, was "mentally incompetent and incapacitated to attend to any of her ordinary business affairs or to handle or dispose of her property," and that the defendant, Louise Shand, "by the use of improper means and undue persuasion, and by reason of mental incompetency of said deceased, induced the said deceased to transfer her bank account in Walker Brothers Bankers' bank to the said defendant in conjunction with the said deceased and in such a manner as to enable the said defendant by her sole check to draw upon the funds" so deposited in the bank amounting to $ 1,700; that the defendant shortly after the death of the deceased wrongfully withdrew such moneys from the bank and withheld them from the plaintiff, the executor of the estate of the deceased. The prayer is that the defendant account to and pay over such moneys to the executor. The answer in effect is a general denial.
The case was tried to the court. Findings were made in favor of the plaintiff that the deceased, from July, 1926, until her death in March, 1927, "was mentally incompetent to transact business and by reason of such mental incompetency" was unable to safeguard her property; that before and prior to July, 1926, the defendant, a granddaughter of the deceased, "sought by improper means and undue influence to wrongfully persuade and induce her grandmother" to transfer her bank account in her individual name to the joint name of the deceased and of the defendant, "so that said defendant could after the death of her grandmother draw any moneys remaining in said bank, and by improper and wrongful means and by undue influence," in September, 1926, induced the deceased to transfer her individual savings account, and thereafter, in December, 1926, her checking account in the bank both amounting to $ 1,700, the sole property of the deceased, "to the said joint account" of the deceased and of the defendant; and that after the death of the deceased the defendant, "in furtherance of her fraudulent and unlawful scheme to obtain the funds of her said grandmother and thereby defeat and defraud" the heirs of the deceased and the legatees of her will, withdrew the funds and wrongfully withheld them from the executor. As conclusions of law the court stated that the plaintiff was entitled to judgment requiring the defendant to account and pay over to the executor the sum of $ 1,700. Judgment was entered accordingly.
The defendant appeals. By her assignments her chief contention is that the findings that the deceased was mentally incompetent, or that the defendant by any persuasion or influence, or by any means, induced, persuaded, or caused the deceased to transfer her individual bank accounts to the joint account of both the deceased and of the defendant, are unsupported by the evidence. She, by her abstract and brief points to all of the evidence which, as she claims, has any bearing on the questions. No part of the evidence so pointed out or referred to is disputed by the respondent. The evidence as so pointed out is insufficient to support the findings. The respondent does not point out or refer to any evidence to support the principal or main finding of undue influence. Nor does the record support such a finding. Some evidence is pointed to by the respondent which he claims supports the finding that the deceased was mentally incompetent to transact business. But it is not alleged, nor is it found, that the transfers were void or were not the acts of the deceased, except as induced...
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Geis v. Continental Oil Co.
...time on appeal see Hamilton v. Salt Lake County Sew. Imp. Dist., 15 Utah 2d 216, 390 P.2d 235, and cases therein cited; also Evans v. Shand, 74 Utah 451, 280 P. 239; Thompson v. Ford Motor Co., 14 Utah 2d 334, 384 P.2d 109; Simpson v. Gen'l Motors, 24 Utah 2d 301, 470 P.2d 399.2 See Walters......
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...15 Utah 2d 72, 387 P.2d 246; Whetton v. Turner, 28 Utah 2d 47, 497 P.2d 856.5 Brittain v. Gorman, 42 Utah 586, 133 P. 370; Evans v. Shand, 74 Utah 451, 280 P. 239; Clements v. Clements, 91 Idaho 732, 430 P.2d 98.6 See Lone Star Uranium and Drilling Co. v. Davis, 9 Utah 2d 175, 341 P.2d 201,......
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...in the lower court, cannot be permitted to change his theory on appeal, must be regarded as settled in this jurisdiction. Evans v. Shand, 74 Utah 451, 280 P. 239. What was there said need not be here Finding no error in the record, the judgment is affirmed. Respondent to recover costs. CHER......
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