Gilliam v. Schoen

• Decision Date: 17 April 1945
• Citation: 176 Or. 356,157 P.2d 682
• Parties: GILLIAM ET AL. <I>v.</I> SCHOEN ET UX.
• Court: Oregon Supreme Court

176 Or. 356

157 P.2d 682

GILLIAM ET AL.v.

SCHOEN ET UX.

Supreme Court of Oregon.

Argued March 6, 1945.

Affirmed April 17, 1945.

Gifts

1. The burden of proving undue influence regarding a gift ordinarily rests upon party alleging it, except that, where it is established that a fiduciary relationship existed between donor and donee, a presumption of undue influence arises, gift is prima facie void, and donee is required to produce evidence sufficient to establish that gift was the voluntary act of donor and that transaction was fair and equitable.

Deeds

2. Deed from mother to son supported by no adequate consideration was in effect a gift.

Deeds

3. Where fiduciary relationship existed between aged mother, who was showing signs of senility, and son, a clergyman, mother's deed to son individually, rather than as trustee for church, conveying as a gift substantially whole of mother's property to exclusion of other children, who were equally the natural objects of mother's bounty, executed without independent advice from motives of religious fervor, pride in son, and confidence in his integrity with intent that son's church benefit from deed, the existence of which deed was deliberately kept secret and in the procurement of which son took an active part, was set aside.

Deeds

4. The policy of the law requires close scrutiny of conveyances made by aged parents in favor of their children and requires the setting aside of such conveyances if not reasonable or not entered into in good faith.

Gifts

5. Donee who actively participates in procurement of gift from donor with respect to whom donee is in a fiduciary relationship has duty to see to it that donor, before carrying his presumably benevolent intention into effect, receives independent advice and failure to do so will vitiate the transaction.

Deeds

6. Son's failure to safeguard interests of his aged mother, who was showing signs of senility and with respect to whom son occupied a fiduciary relationship, by insisting upon mother receiving independent advice before executing deed in favor of son as a gift, was in itself sufficient to vitiate deed.

Deeds

7. A higher degree of mental capacity on part of a grantor is required to sustain validity of deed, than is required of a testator to uphold a will.

Deeds

8. The reading of deed, by scrivener, in English, to aged grantor who had so slight a knowledge of English that she had difficulty in following even an ordinary conversation in English and who habitually spoke German, was a meaningless procedure with regard to determination of whether deed reflected grantor's true intent or whether it was obtained by undue influence.

Deeds

9. In determining, upon charge of undue influence, validity of deed by aged mother to son, a clergyman, as a gift to exclusion of other children, where evidence did not indicate that mother had more than a common school education, court was authorized to discredit letter in handwriting of mother addressed to other children entreating them "not to sin against your brother Fred because of the fact that I commissioned him to carry out my will", the phraseology of which appeared to be that of a person of some educational attainments.

Deeds

10. Slight evidence of mental incapacity of grantor of deed conveying substantially all of her property to one child to exclusion of other children is sufficient to warrant a court in setting transaction aside.

Appeal and error

11. Supreme Court on review of a decree setting aside deed would accord great weight to conclusion of trial judge who saw and heard the witnesses.

                  See 16 Am. Jur. 661
                  38 C.J.S., Gifts, § 65
                

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Suit by Ella Gilliam and others against Fred T. Schoen and wife to cancel a deed executed by Elvira Schoen, now deceased, in favor of named defendant. Decree for plaintiffs and defendants appeal.

AFFIRMED.

W.J. Cooper, of Gresham (Cooper & McAllister, of Gresham, on the brief), for appellants.

P.A. Schwabe, of Portland (Hass & Schwabe, of Portland, on the brief), for respondents.

HAY, J.

This is a suit to cancel a deed of conveyance of real property by Elvira Schoen, a widow, (now deceased), in favor of Fred T. Schoen. The plaintiffs are three daughters and a grandson of the grantor. The defendants are the grantee, Fred T. Schoen, and his wife.

The complaint alleged that the grantor, at the time of signing the deed, was eighty-eight years old, and, by reason of her advanced age and of grievous illness with which she had been afflicted for some years, was weak, ailing and unsound of mind and body, and mentally incapable of transacting business or understanding her affairs. It alleged further that she was caused to sign the deed by undue influence exercised over her by the defendants. The answer was a general denial. The trial court decreed cancellation of the instrument, and defendants appealed.

Elvira Schoen and her husband Adolph emigrated from Germany to America in the year 1880, and, after some years in the middle west, came to Oregon in 1908. They had six children, four of whom were born in Germany and two in the United States. One child died in Germany; the others, except Fred, came to Oregon with their parents. Fred remained in the middle west, where he attended a theological seminary. In due time, he was ordained a minister of the gospel, and for a number of years pursued his calling in Oklahoma and in Wisconsin. In 1928, upon the urgent insistence of his parents, and at their expense, he came to Oregon, where he received a call to a church at Sandy. He served that church for seven years, during which time he organized and conducted a mission at Gresham. Thereafter, he removed from Sandy to Gresham, and became pastor of the mission there. Under his leadership, the mission became organized as a permanent congregation, and a church building was erected for its use.

During the lifetime of her husband, Mrs. Schoen had become the owner of two lots of land in the city of Portland, upon which dwelling houses had been built. The family resided in one of these houses. Adolph Schoen died in 1931. By that time, all of the children had married, and, for about four years after her husband's death, the widow continued to occupy the family residence. She seems to have been on cordial terms with all of her children, and the record indicates that all of them took a kindly and considerate interest in her welfare. In 1935, having suffered a fall and severely sprained her ankle, she was removed to the home of her daughter Ella Gilliam, who cared for her until she recovered. She then went to Salem, where she resided for some months with her daughter Johanna Miller. Afterwards she went to the home of her daughter Clara Van Horn, who lived with her husband on a farm near Albany, where she stayed for several months. From thence she went to Portland, to the home of her son Ernest and his wife, where she stayed for about seven years. During this period, in 1937, Ernest died, and Elvira remained with his widow, Martha, for about five years thereafter, although from time to time she paid short visits to all of her other children. In August, 1942, Martha was obliged to go to Salem to help her sister-in-law Johanna, in caring for the latter's sick husband, and thereupon Elvira removed to Fred's home in Gresham, where she remained until her death. She died April 27, 1943, at the great age of ninety-two years.

Elvira Schoen appears from the evidence to have been an excellent type of German hausfrau, industrious, capable, a good mother, and a deeply religious woman. She never became proficient in English, but conversed habitually in German. Her reading was confined to her German Bible, and to newspapers and magazines printed in German.

Prior to the death of Adolph Schoen, he and Elvira executed deeds conveying to all of their children the two Portland lots which Elvira owned. Whether or not these deeds were delivered, or were intended to operate as testamentary devises, the evidence does not disclose. Elvira gave them to Fred at one time, but he testified that he returned them to her some years later, and does not know what became of them.

On two occasions, Elvira made gifts of money to Fred for the Gresham church, one of $600 and the other of $250. Her daughters expressed their disapproval of those gifts, and evidenced suspicion that the money had been appropriated by Fred to his own use, although such suspicion has no foundation in the evidence.

In December, 1938, while Elvira was still residing in the home of Martha Schoen, she executed the deed which is the subject of this suit. The testimony of Fred Schoen is the only evidence before us respecting this transaction. He testified that his mother told him that she desired to have all of her property go to the church after her death, and asked him to find out about making a will. He consulted a Portland lawyer of his acquaintance, who suggested that, under the circumstances, an outright conveyance would be more desirable than a will. After reporting this to his mother, he had two deeds prepared by a real estate broker, in Gresham, with whom he was acquainted, each deed covering one of the lots. (Only one of the deeds is involved in this suit.) The instruments were warranty deeds, in favor of Fred T. Schoen individually, and not as trustee. After they had been prepared, Fred took his mother, in his own car, from Martha's home in Portland to the real estate broker's office in Gresham. The broker read both deeds over to Elvira, in English, word for word, and showed her where to sign. She signed the deeds, and the broker gave them to Fred. Fred then took Elvira back to Martha's house, where he gave the deeds to her and she immediately gave them back to him. Each deed recites a consideration of $10, and Fred testified...