In re Haas' Will
| Decision Date | 14 April 1944 |
| Docket Number | 17219. |
| Citation | 54 N.E.2d 119,115 Ind.App. 1 |
| Parties | In re HAAS' WILL. HAAS v. KOPPIUS et al. |
| Court | Indiana Appellate Court |
Ramsey & Grayson, of Vincennes, for appellant.
Arthur L. Hart and Norman F. Arterburn, both of Vincennes, for appellees.
This appeal arises out of litigation involving the interest of Weaver Haas in a trust fund created by the will of Amos Z Haas who died July 2, 1913, leaving the sum of $25,000 in trust for the benefit of his widow during her lifetime with remainder in equal shares at her death to his two sons Ethan and Weaver. Decedent's widow died January 3, 1941. Prior to her death the following events took place:
In March 1921, Weaver Haas and his wife, Mary Haas, were divorced and thereafter, on March 23, 1922, as an alimony settlement, the husband sold and assigned in writing, for a stated consideration, all of his right, title and interest in and to said trust fund to his divorced wife, the said Mary Haas.
In 1923, Weaver Haas was adjudged a bankrupt and on July 17 1925, the bankrupt's assets, including his interest in the trust fund aforesaid, were offered for sale by the trustee in bankruptcy and were purchased by one Joseph Townsend. The appellees herein Koppius and Townsend asserted their claim to said trust fund in the court below by reason of descent from the said Joseph Townsend, who died prior to the bringing of this action.
On February 28, 1927, the said Mary Haas, by an instrument in writing, and for a stated sum of $10 and other consideration unstated, purported to re-assign to Weaver Haas the interest in said trust fund previously assigned to her by him in the writing dated March 23, 1922.
On October 27, 1936, Weaver Haas died testate leaving as his sole beneficiary and legatee his second wife, the appellant herein, Anna R. Haas, whose claim to said trust fund is based upon the re-assignment thereof to decedent by his divorced first wife and its subsequent descent to appellant.
All of these events, as previously stated, occurred prior to the death of the widow of Amos Z. Haas.
The probate court of Benton County, Arkansas, on October 8, 1942 adjudged the aforesaid Mary Haas to be a person of unsound mind and letters of guardianship were issued to the appellee herein Mary O'Kelly. The claim of O'Kelly to said trust fund in the court below was as such guardian and was asserted upon pleadings alleging (1) that the ward, at the time of the purported re-assignment of said trust fund to Weaver Haas, was of unsound mind (2) lack of consideration for said re-assignment (3) undue influence, persuasion and threats in the procurement thereof and (4) non est factum.
Appellees, Koppius and Townsend, raised certain issues by their pleadings with respect to the validity and effectiveness of the assignment by Weaver to Mary Haas. These appellees make no assignments and present no briefs. We take it, therefore, that they have waived their right to question the finding and judgment of the trial court, which was against them on these issues; so for the purpose of this review we must take for granted that the assignment from Weaver to Mary Haas was valid and effective to and did convey to her the interest of Weaver Haas in the trust fund.
The appellant makes but one assignment, i.e., error in the overruling of the motion for new trial which challenges the sufficiency of the evidence and the legality of the decision.
Thus we have before us for consideration only matters bearing upon the purported re-assignment of said trust fund by Mary Haas to Weaver Haas on February 28, 1927.
The original writing was not produced at the trial below but was evidenced by a recordation thereof in the recorder's office of Knox County, Indiana, bearing date December 18, 1935, nearly nine years after the date of execution and delivery of the original instrument. The supporting evidence consisted of the testimony of one witness, an attorney, who testified that the instrument was drawn in his office at the request of Mary Haas who signed same in his presence and immediately thereafter left the office with the writing in her possession; that sometime in September, 1935, he received the instrument by mail from Weaver Haas with a request for recordation thereof which was accomplished; that thereafter it was lost and efforts to discover it were unavailing. The witness so testifying appeared below and appears here as attorney for the appellant, Anna R. Haas. Appellee O'Kelly objected to the admission of this testimony but raises no question here by assignment of cross errors.
Appellant first contends that the contract of a weak-minded person is valid in the absence of a showing that such contract is tainted by fraud; and that fraud was not and cannot be an issue in the instant case since it is not alleged in the pleadings filed by appellee O'Kelly. From the briefs it appears that no motions or demurrers were addressed to O'Kelly's answer or to her cross complaint. These pleadings contain averments (1) unsoundness of mind of Mary Haas at the time of the alleged reassignment (2) undue influence, persuasion, threats in procuring the alleged re-assignment coupled with weakness of mind of Mary Haas.
It has been held that the term 'fraud' need not be used in the pleadings if facts are averred which show fraud. Budd v. Board of Co. Com'rs of St. Joseph County, 1939, 216 Ind. 35, 22 N.E.2d 973; Holliday v. Perry, 1906, 38 Ind.App. 588, 78 N.E. 877.
'Undue influence' is recognized by the weight of authority as a species of fraud. Borchert v. Borchert, 1907, 132 Wis. 593, 113 N.W. 35; In re Chinsky's Will, 1934, 150 Misc. 274, 268 N.Y.S. 719; Eldridge v. May, 1930, 129 Me. 112, 150 A. 378; McDonald v. MacNeil, 1938, 300 Mass. 350, 15 N.E.2d 460; Gallagher v. Neilon, Tex.Civ.App. 1909, 121 S.W. 564; Heath v. Capital Savings, etc., Co., 1906, 79 Vt. 301, 64 A. 1127; Price's Ex'r v. Barham, 1937, 147 Va. 478, 137 S.E. 511; Roche v. Roche, 1919, 286 Ill. 336, 121 N.E. 621; Kendall v. Watts, 1929, 135 Okl. 66, 273 P. 991.
Under the circumstances of the instant case we are of the opinion that the allegation of undue inflience exercised upon a person non compos mentis sufficiently charges a constructive fraud. Ashmead et al. v. Reynolds et al., 1893, 134 Ind. 139, 142, 144, 33 N.E. 763, 39 Am.St.Rep. 238.
There is ample evidence in the record to support a finding that Mary Haas was, on February 28, 1927, a person of unsound mind. No less than eight witnesses concur in that opinion which is based, first, upon the insanity of her mother with whom she lived while in Vincennes and who, when it rained was accustomed to shelter herself with an umbrella while sprinking the flowers with a sprinkling can and who sat upon her porch cursing the children as they passed by on their way to and from school; the testimony of appellant's own medical expert who testified that heredity is an important cause of insanity; and upon observation of the actions and habits of Mary Haas herself who walked about the streets of Vincennes mumbling to herself, flinging her arms and hands violently from side to side, or twisting and untwisting her handkerchief, while she staggered in a peculiar manner. Her facial muscles twitched and occasionally she broke out in laughter for no apparent reason. Her manner of walking was otherwise peculiar in that she walked intermittently slowly and very rapidly, stopping at frequent intervals to peer suspiciously behind her as if someone were...
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