Humphrey v. Harris

• Decision Date: 11 October 1911
• Docket Number: No. 7,471.,7,471.
• Citation: 96 N.E. 38,48 Ind.App. 469
• Parties: HUMPHREY et al. v. HARRIS.
• Court: Indiana Appellate Court

48 Ind.App. 469

96 N.E. 38

HUMPHREY et al.

v.HARRIS.

No. 7,471.

Appellate Court of Indiana, Division No. 2.

Oct. 11, 1911.

Appeal from Circuit Court, Switzerland County; H. Francisco, Judge.

Action by Hosier J. Harris, as guardian, etc., against Lillie Humphrey and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Wm. T. Friedley, Geo. B. Hall, and Clove, Dickerson & Clayton, for appellants. Leonard E. Smith and F. M. Griffith, for appellee.

LAIRY, C. J.

John D. Mottier on the 31st day of July, 1907, executed a deed by which he conveyed certain real estate to his daughter, Lillie Humphrey. He was afterwards adjudged to be a person of unsound mind, and his guardian, Hosier J. Harris, brought suit against Lillie Humphrey and her husband, James Humphrey, to set aside the deed to said real estate, and also to recover certain personal property alleged to have been transferred to appellants by appellee's ward before he was adjudged to be of unsound mind. The complaint was in three paragraphs. The first paragraph, after making the necessary averments to authorize a suit by the guardian in his representative capacity, alleges that at the time of the execution of the deed and for some time prior thereto John D. Mottier was a person of unsound mind; that appellants knew his condition of mind, and procured from him the execution of the deed in question. It is further averred that the guardian disaffirmed the acts of said Mottier in the conveyance of said real estate, and demanded a reconveyance. The prayer of this paragraph is that the deed be set aside, and the title quieted in said Mottier. The second paragraph proceeds upon the theory that said John D. Mottier was old and feeble in body and mind, and was susceptible to influence, and that appellants exercised an undue and improper influence over him, and procured the conveyance of said real estate by such improper influence. As the finding and judgment of the court below was expressly based upon the first and third paragraphs of complaint, no error can be predicated on the second, and it will not be necessary to further refer to it. The appellants filed a demurrer to each separate paragraph of complaint upon the ground that neither of said paragraphs stated facts sufficient to constitute a cause of action. The action of the trial court in overruling this demurrer is one of the grounds assigned for a reversal.

[1] Appellants take the position that the averment contained in the first paragraph of complaint, “that said Mottier was for a long time prior to said proceedings of unsound mind, has so remained ever since, and is now of unsound mind,” is a conclusion and is not a sufficient averment, that his mental unsoundness was of such a character as to render him incapable of understanding the character of the transaction in which he was engaged at the time he made the contract in question. It is contended that such a degree of mental unsoundness as rendered him incapable of transacting the ordinary affairs of life with discretion should have been shown by proper averments in the complaint, and that for the want of such averments the complaint is insufficient. Section 3112, Burns' Ann. Stat. 1908, provides as follows: “All persons except infants and persons of unsound mind, may devise, by last will and testament, any interest descendable to their heirs, which they may have in any lands, tenements and hereditaments, or in any personal property, to any person or corporation capable of holding the same.” The Supreme Court of this state has frequently held that the phrase of “unsound mind,” as used in the above statute, means a person of such a degree of unsoundness of mind as incapacitates him from making a will when measured according to the standard fixed by the adjudicated cases. Blough v. Parry, 144 Ind. 463, 40 N. E. 70, 43 N. E. 560;Runkle v. Gates, 11 Ind. 95;Rush v. Megee, 36 Ind. 69;Turner v. Cook, 36 Ind. 129;Herbert v. Berrier, 81 Ind. 1;Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118;Bower v. Bower, 142 Ind. 194, 41 N. E. 523;Wallis v. Luhring, 134 Ind. 447, 34 N. E. 231. In the case first cited the court says: “The meaning thus assigned to the phrase ‘of unsound mind’ by this court in construing the statute of wills was fully justified and founded in good reason, because, according to Winslow, the phrase ‘of unsound mind’ was first used by Lord Eldon to designate a state of mind not exactly idiotic, and not lunatic with delusions, but a condition of intellect between the two extremes, and unfitting the person for the government of himself and affairs. Taylor, Med. Jur. by Clark Bell, 678. To the same effect is Den v. Johnson, 5 N. J. Law, 455, 8 Am. Dec. 610. Thus we find that the phrase ‘of unsound mind’ had attained an appropriate and technical meaning in the law, conveying the meaning of testamentary capacity according to the legal standards for such capacity. Another statute in force at the time prescribing the rule for construing statutes provides that ‘words and phrases shall be taken in their plain, ordinary and usual sense. But technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import. R. S. 1894, § 240 (R. S. 1881, § 240).”’

The statute which specifies what persons may make conveyances is somewhat similar to the statute on the subject of wills, and is as follows: “Persons of unsound mind and infants may not alien land nor any interest therein.” Burns' Ann. Stat. 1908, § 3938. The courts having held that the phrase “of unsound mind” as used in the statute of wills, herein before quoted, is to be given a technical meaning, indicating a person who lacks testamentary capacity as defined by law, we can think of no reason why the same words used in section 3938, previously quoted, should not be given a similar technical meaning, and held to indicate a person who lacks mental capacity to make conveyances of real estate...