Hamilton v. Fay

• Decision Date: 13 April 1925
• Docket Number: 37
• Citation: 283 Pa. 175,128 A. 837
• Parties: Hamilton et al. v. Fay, Appellant
• Court: Pennsylvania Supreme Court

128 A. 837

283 Pa. 175

Hamilton et al. v. Fay, Appellant

No. 37

Supreme Court of Pennsylvania

April 13, 1925

Argued March 18, 1925

Appeal, No. 37, March T., 1925, by defendant, from decree of C.P. Allegheny Co., July T., 1923, No. 2736, on bill in equity, in case of Loretta Fay Hamilton and Mary McTighe v Margaret K. Fay. Reversed.

Bill for cancellation of deeds. Before CARPENTER, J.

The opinion of the Supreme Court states the facts.

Decree for plaintiffs. Defendant appealed.

Error assigned was, inter alia, decree, quoting record.

The decree is reversed and plaintiffs' bill is dismissed at their costs.

G Malcolm McDonald, with him Paul G. McClelland, for appellant. -- A very high degree of proof is required to cancel a deed for any cause whatsoever: Pusic v. Salak, 261 Pa. 512; Sulkin v. Gilbert, 218 Pa. 255; Wolfe v. Arrott, 109 Pa. 473; Citizens Sav. & Loan Assn. v. Heiser, 150 Pa. 514; Phillips v. Meily, 106 Pa. 536; Hultz v. Ackley, 63 Pa. 142.

Thomas M. Marshall, with him Thomas M. Marshall, Jr., for appellee.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

John R. Fay, of Pittsburgh, died intestate on August 17, 1921, leaving a widow and several adult children. He was twice married and all but one of his children were by the first wife. He owned two pieces of real estate which, six days prior to his death, he conveyed to a third party, who immediately reconveyed the same back to Fay and his wife, so as to create an estate by entireties. In June, 1923, plaintiffs, being children by the first wife, brought this bill in equity against the widow to set aside the deeds above mentioned, averring undue influence and also lack of capacity on part of Fay, to which a responsive answer was filed, and thereto a replication. Proofs were submitted to the chancellor, who found, inter alia, that the mental condition of Fay on August 11, 1921 (the date of the deeds), was such as to render him incapable of exercising judgment or comprehending the legal effect of the deeds executed by him. The findings being approved by the court in banc, a final decree was entered in due course granting plaintiffs the relief sought and defendant has appealed.

The decree cannot be sustained. Fay was seventy years of age and the cause of his death was cancer of the stomach, with which he had been afflicted for some months, but not confined to his home or bed until the day the deeds were executed. On that morning (August 11, 1921) he arose, dressed, shaved and went down to breakfast; then sent his granddaughter for a notary to whom he handed the title deeds explaining that he desired to have the title so changed as to create an estate by entireties in himself and wife, then returned to his bed. Later the same morning the notary came with the deeds which Fay signed and acknowledged while sitting on the edge of the bed. The testimony of the notary, corroborated by certain members of the family, is that Fay was then in a normal mental condition; this finds some support in other lay as well as expert evidence.

Plaintiffs' chief witness was Dr. McFarland, who attended Fay the last six days of his life, beginning on the afternoon of August 11th. The doctor expressed the opinion that Fay was not on that day competent to execute a deed or transact other business. The doctor's opinion is weakened by his testimony that Fay's mind was clear for a few minutes and that he recognized the doctor and explained his symptoms, and by the further fact that the doctor did not see the patient until some six hours after the deeds were executed. While the doctor was uncertain as to the hour of his first visit, other evidence on both sides showed it was in the afternoon. There is no evidence that cancer of the stomach would normally incapacitate the brain six days before death. Dr. Jahn, who had treated Fay earlier in the summer for nervousness and insomnia, expressed the opinion that he could not transact any very serious business, largely because of physical disability. Dr. Jahn ceased treating Fay in July and, so far as appears, the latter had no physician from that time until August 11th. Neither of the two doctors stated any fact which supported his opinion. In addition, plaintiffs called a few lay witnesses, mostly interested parties, who testified to Fay's physical weakness, drowsiness, inability to talk connectedly, etc., during his last days; but developed no facts indicating a lack of sufficient mentality to execute a deed at the time in question. The drowsiness naturally resulted from morphine, which Dr. McFarland prescribed to deaden the pain. Dr. Jahn had also prescribed veronal earlier in the summer to induce sleep, but there was no evidence that Fay was under the influence of any drug when he executed the deeds.

Sanity and mental capacity are presumed and the burden is on him who alleges the contrary. "Testamentary capacity is the normal condition of one of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative he must establish, not in a doubtful, but in a positive manner [although not necessarily by positive evidence]": Grubbs v. McDonald, 91 Pa. 236; Palmer's Est., 219 Pa. 303, 310; see also Stevenson's Executor v. Stevenson et al., 33 Pa. 469, 471, 473.

True the chancellor's findings of facts, approved by the court in banc, are entitled to the same weight as the verdict of a jury; but here the evidence was wholly insufficient to support a verdict setting aside the deeds in question. When challenged on appeal, such findings must be supported by sufficient evidence (Worral's App., 110 Pa. 349; Bergner v. Bergner, 219 Pa. 113, 116); such is our language in many cases (see New York & Pa. Co. v. N.Y. Central R.R. Co., 280 Pa. 297; Gassner v. Gassner, 280 Pa. 313; Keally's Est., 275 Pa. 455; Colwer v. Meyer, 272 Pa. 323; Friedline v. Hoffman, 271 Pa. 530, 535; Dickey v. Norris, 216 Pa. 184; Schmeck v. Muhlenberg Twp. S. Dist., 60 Pa.Super. 183), and where we have said such findings will not be...