Hale v. Cole

• Citation: 8 S.E. 516,31 W.Va. 576
• Court: Supreme Court of West Virginia
• Decision Date: 24 November 1888
• Parties: Hale v. Cole et al.

8 S.E. 516

(31 W.Va. 576)

Hale

v.Cole et al.

Supreme Court of Appeals of West Virginia

November 24, 1888

1. Equity—Rescission of Deed—Disinheriting Only Child.

Where the legal capacity of a grantor to make a deed is shown, and there is no fraud or undue influence established, he has the legal right to make an unjust, unnatural, or unreasonable conveyance of his property. A conveyance which wholly disinherits his only child, made upon a meritorious consideration alone, will not for that cause, of itself, be held invalid.

2. Same—Fraud—Undue Influence.

Confidence in a grantee, and influence acquired by him over a grantor, by reason of acts of kindness and attention, do not in law constitute fraud or undue influence; and the fact that the grantee possessed such confidence and influence will not, of itself, vitiate a conveyance made by the grantor to such grantee.

3. Same—Evidence.

A case in which a bill filed by a son to set aside conveyances, embracing all the real estate of his mother, to two of her nephews, made shortly before her death, upon the grounds that the mother was mentally incompetent to make the conveyances, and they were induced by the fraud and undue influence of the grantees, is held not to be sustained by the evidence in the cause.

(Syllabus by the Court.)

Appeal from circuit court, Monongalia county.

Suit by A. C. Hale against L. C. and J. B. Cole, to set aside conveyances. Judgment for plaintiff, and defendants appeal.

P. H. Keck and J. Marshall Hagans, for appellants. Berkshire, Sturgiss & Baker and John Brannon, for appellee.

Snydek, J. Joseph Cole died testate early in the year 1850, in Monongalia county, leaving a widow, two sons, William and Coverdale, and two daughters, Elizabeth and Mary. He was the owner of a considerable estate in said county, among which were the farm on which he resided, known as the "Home Place, " and a tract of 190 acres of land five miles therefrom. By his will he gave all his real and personal estate to his widow for life, the remainder in the home place he devised to his son Coverdale, and the remainder in the 190 acres to his daughters, Elizabeth and Mary, jointly, in fee; also the right to live in the house with their mother on the home place. The daughter Mary never married, but she had one child, Lewis C. Cole, who was born in 1847. Elizabeth, about the year 1836, married one Albert Hale, who, after living with her eight or nine months, deserted her, and went to the state of Indiana, and never lived with or did anything to maintain her thereafter. Shortly after her husband left her she had a child, whom she named Francis Marion. When this child was six months old his father came to the house of said Joseph Cole, where it was then with its mother, and clandestinely took it away from its mother to the state of Indiana, where he kept it until 1856, when, under the name of Abraham C. Hale, the name given him by his father, he visited his mother, in Monongalia county, where he remained several weeks, and then went to Weston, Lewis county, in this state, where he has resided ever since. The widow of Joseph Cole, deceased, died in January, 1871. The two daughters, Elizabeth and Mary, continued to live with their mother in the home place to the time of her death, and they afterwards lived there until their deaths, with the exception of about two years, 1878 and 1879, when they lived with Lewis C. Cole on the 190-acre tract of land. Albert Hale obtained a divorce from his wife, Elizabeth, in August, 1839, in the state of Indiana, and afterwards married another woman in that state, where he continued to reside until December, 1884, when he came to Weston, in this state. Lewis C., the son of Mary Cole, was raised in the family of his grandmother, and lived on the home place with her, his aunt Elizabeth, and mother until he was married, a short time before the death of his grandmother, when he moved upon the 190-acre tract, and has resided there ever since. James B. Cole, a son of Coverdale Cole, when he was about six years of age, was taken into the family of his grandmother and aunts, and continued to live there until the death of his grandmother, and for some time thereafter. By a written agreement dated December 19, 1874, executed by Elizabeth and Mary Cole, it was agreed that after the death of either of them the said 190 acres of land should be equally divided, and that Lewis C., the son of Mary, should have that on the south side of the road, and he was not to be charged with his improvements in an equal division of the land. This agreement was duly acknowledged by the said Elizabeth and Mary, and on April 3, 1875, admitted to record in Monongalia county. In 1879 the said Elizabeth and Mary caused the said 190 acres to be surveyed, and on March 8, 1879, they excuted and acknowledged a deed by which, "in consideration of one dollar and of natural love and affection, and also past care and kindness bestowed upon them by the grantee, " they conveyed, by metes and bounds, to said Lewis C. Cole, the son of the said Mary, 150 acres of said 190 acres, including therein all theland on the south side of the public road, and all on the north side, except about 40 acres, subject to the following reservation: "The said parties of the first part hereby reserve the right to occupy and control during their natural lives, or the natural life of either of them, so much of said land hereby conveyed as they may elect to occupy and control, and to rent out the same, and receive the rent for same, as they may elect, during the same time. " This deed was duly recorded, March 15, 1879, in said county. Subsequently, by deed dated September 10, 1879, the said Elizabeth and Mary, "in consideration of one dollar and good will for the grantee, and in the further consideration of the grantee agreeing to furnish the grantors one-half part of their necessary and comfortable support (jointly) with L. C. Cole, who is held for the residue thereof, during the period of their natural lives, or the life of the surviving one of them, also the payment of the sum of five dollars to A. C. Hale within sixty days after the decease of the said Elizabeth, " conveyed to their nephew, James B. Cole, the residue of the said 190 acres, being about 40 acres on the north side of the road, subject to the following reservations: "The said parties of the first part retain a life-time right therein to secure the aforesaid support, which is hereby held and expressly reserved against said land for the faithful rendering or furnishing thereof; and, if said one-half of their support during life as aforesaid is duly and properly furnished by said grantee, then he shall remain in undisturbed possession thereof. " This deed was duly acknowledged and admitted to record, September 13, 1879, in said county. Elizabeth died in June, 1880, at the age of about 66, and Mary in September, 1880, at the age of about 60 years.

In January, 1885, the said Abraham C. Hale brought two separate suits in the circuit court of Monongalia county, —the one against Lewis C. Cole, and the other against James B. Cole, —to set aside and annul the aforesaid deeds of March 8, 1879, and September 10, 1879, to the said defendants, respectively. The averments of the two bills are substantially the same, mutatis mutandis, and seek to invalidate and set aside said deeds upon two alleged grounds: First, because "the said grantors, and especially the said Elizabeth, were, on account of their frailty and imbecility of body and mind, wholly incapable of understanding or transacting business, and incompetent to make said deeds or dispose of their property; " and, second, "that said deeds were procured by reason of such want of capacity, and the undue influence exercised over them, and gross fraud of the defendants, and especially was this so as to the said Elizabeth. " These bills were promptly answered by the respective defendants, each of them positively denying the said charges of imbecility or want of capacity of the grantors to make said deeds, or any fraud or undue influence in their procurement; and averring that each of said grantors, and especially the said Elizabeth, were fully competent, mentally and otherwise, to make said deeds, or any other contracts, in respect to their property, real or personal. A large volume of depositions was taken and filed by the respective parties; and on June 17, 1887, the two causes were by consent heard together, and the court deciding that the said Elizabeth and Mary, by their aforesaid agreement, dated December 19, 1874, having made partition of the said 190 acres of land, whereby the said Mary, and after her death the said Lewis C. Cole, should hold in severalty the portion on the south side of the county road, and...