Foster v. Foster
| Decision Date | 04 May 1937 |
| Docket Number | 43738. |
| Citation | 273 N.W. 165,223 Iowa 455 |
| Parties | FOSTER et al. v. FOSTER et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Russell Jordan, Judge.
Action in equity to set aside deed on ground of incompetency of grantor and exercise of undue influence by grantees. From a decree in favor of the defendants, the plaintiffs appeal.
Affirmed.
Cunningham & Scott and Louis Shneider, all of Des Moines, for appellants.
Addison M. Parker and Harold H. Newcomb, both of Des Moines for appellees Clyde and Clara Foster.
This is an action to set aside a deed executed by Albert W. Foster to Clyde W. Foster and Clara Foster, his wife, on the ground that the grantor was in such physical and mental condition that he was incapable of knowing what he was doing, and that the execution of said deed was procured by undue influence and fraud. The plaintiffs are three sons and a daughter of said Albert W. Foster who, with Clyde W. Foster, the defendant, constitute all the children of said Albert W Foster, deceased. The facts are that the defendant Clyde W. Foster was the youngest son of said Albert W. Foster. After the older brothers and sister had left home, Clyde remained with his parents and continued to live with them for 3 years after his marriage, which occurred about 1908. About 1911 he and his wife rented another farm and lived by themselves for 3 years. They again began living with Clyde's father and mother in 1914, apparently because of the poor condition of his mother's health. The mother died in 1915 and, following her death, the father, Albert W. Foster, continued to live with Clyde and his wife until his death on October 16, 1934, at the age of 85 years.
The evidence indicates that Albert W. Foster was in good health during all the years up until about November, 1931, when he suffered a mild attack of apoplexy and had some heart trouble. He recovered very rapidly from this attack and appeared to be in normal health for a man of his age until about August 23, 1934, when the doctor who was called upon to attend him found that " he had a heart condition that was causing shortening of breath, some swelling of the ankles, and some pain about his heart." The doctor saw him on the following day, when he appeared to be a little weaker, and again saw him on the succeeding day, when he was in the same condition but weaker and more depressed. The doctor next saw him on August 31st, when his condition was similar except that his limbs were swollen more and the heart action bad. On the occasion of his first visit, the doctor ordered Mr. Foster to remain in bed, but his orders were not complied with. The next time the doctor saw him was on September 28th, at which time he was sicker than he had been in August, and he was then persuaded to go to bed. Following this visit the doctor again saw him on October 5th, 6th, and 10th, and his death occurred on October 16th.
On the 26th day of September, prior to his death, Albert W. Foster executed a warranty deed covering his 40-acre homestead to Clyde W. Foster and Clara Foster, and, on the same date, and as part of the same transaction, he entered into a contract with Clyde W. Foster and Clara Foster, his wife, in which they agreed to care for and support him during the balance of his life. In addition to the deed and contract he also executed a will, which contained practically the same provisions as to the disposition of his property as were contained in the deed and contract.
Following the death of Albert W. Foster, the plaintiffs, who are the three brothers and sister of Clyde W. Foster, instituted this action in equity to set aside said deed. On the trial of the case below the court entered a decree dismissing the plaintiffs' petition at their costs and adjudging the defendants Clyde W. Foster and Clara Foster to be the owners of the 40 acres described in the deed. From this decree the plaintiffs appeal.
Three propositions are presented and argued as grounds for reversal of the decree entered by the trial court: 1. That, at the time of the execution of the deed in question, Albert W. Foster did not have the mental capacity necessary to execute a valid deed. 2. That the execution of the deed was procured by the undue influence of the defendants. 3. That the deed is invalid, because it is not supported by a sufficient consideration.
This is an equity action and is triable de novo in this court. As said in Kramer v. Leinbaugh, 219 Iowa, 604, loc. cit. 606, 259 N.W. 20, 21:
In the cited case there was some dispute as to the burden of proof, because there was a claim that a confidential relation existed between the grantor and the grantees which, if true, would place the burden of proof upon the grantees. There is no such claim in the instant case, so that the burden is on the plaintiffs. It is likewise well-established law that, in order to sustain this burden, the mental incapacity of the grantor or of undue influence or fraud, which resulted in the execution of the deed, must be established by clear, satisfactory, and convincing evidence. Bardsley v. Spencer, 215 Iowa, 616, 244 N.W. 275, and cases therein cited.
Turning to the evidence, we think the plaintiffs have failed to establish any such lack of mental capacity on the part of Albert W. Foster as would make him incompetent to execute the deed in question. No attempt is here made to establish a mental condition that would amount to what is commonly known as unsoundness of mind. The most that is claimed is that, because of his age and the ravages of the disease from which he was suffering, he was in such a weakened condition, both physically and mentally, at the time that the deed was executed, that he was incapable of understanding the nature and effect of the act that he was doing. Aside from the evidence of the plaintiffs themselves, their spouses, and some of their children, the evidence offered, to show the lack of mental capacity in Albert W. Foster to execute the deed, consisted in the testimony given by some of his neighbors and acquaintances. None of the witnesses for the plaintiffs claimed to have seen Albert W. Foster on the day that the deed was executed. Several of those who testified that, in their opinion, he was incapable of understanding the nature and effect of the deed executed by him, based their opinion upon his condition at times following the date of the execution of the deed, while others based their opinion on his condition as observed by them during a period varying from a week to several weeks before the date of the execution of the deed. Allowing the testimony of these witnesses the greatest force to which it would be entitled, we do not think this evidence would go further than to establish that, at the times the witnesses saw Albert W. Foster, he was a very sick and a very weak man, who appeared to be unable to recognize the...
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