Jordan v. Ga. Cousins

• Decision Date: 19 March 1946
• Docket Number: (No. 9729)
• Citation: 128 W.Va. 648
• Parties: Lydia Jordan, etc. v. Georgia Cousins
• Court: West Virginia Supreme Court

128 W.Va. 648

Lydia Jordan, etc.

v.Georgia Cousins

(No. 9729)

Supreme Court of Appeals of West Virginia.

Submitted January 12, 1946.

Decided March 19, 1946.

1. Acknowledgment

The testimony of a notary public may be taken to impeach his certificate of acknowledgment concerning the mental capacity of the grantor as against the sole grantee in a deed under attack who was present at its signing and acknowledgment, when the testimony of the notary is to the effect that the certificate was procured by fraud, duress, or imposition.

2. Deeds

When a deed is attacked because of the alleged mental incapacity of the grantor, the time of the deed's signing, acknowledgment, and delivery is the time at which the question of capacity is to be determined. Evidence that relates to the question of capacity at other times is circumstanial.

Appeal from Circuit Court of Greenbrier County.

Proceeding by Lydia Jordan, executrix, etc., against Georgia Cousins to set aside a deed conveying a house and lot to defendant. From a decree of dismissal, plaintiff appeals.

Reversed and remanded. John A. Lile, for appellant. Nickell Kramer, for appellee.

Kenna, President:

This proceeding was brought in the Circuit Court of Greenbrier County by Lydia Seams Jordan against Georgia Cousins for the purpose of setting aside a deed executed by Alex Crawford, a colored man about eighty years old, dated the 1st day of June, 1943, and conveying to Georgia Cousins a house and lot in the town of White Sulphur Springs, the bill of complaint alleging that on the date the deed was signed by Crawford and the date borne by the certificate of acknowledgment, June 4, 1943, the grantor was mentally incompetent and subject to the undue influence of the grantee, Georgia Cousins. Upon final hearing the bill of complaint was dismissed and this appeal was later granted upon the application of the complainant below.

Lydia Jordan is the stepdaughter of Alex Crawford and sole beneficiary of a will executed by him in 1939. Georgia Cousins received practically all of Crawford's property by virtue of the deed under attack, the effect of which, if valid, is to practically nullify the effect of the Crawford will. Hence this controversy.

There is no controversy concerning the factual background. Crawford married plaintiff's mother in 1904, when plaintiff was about twelve years old. Several years later the plaintiff married and for a time she and her husband lived in the Crawford home. In 1917 plaintiff's husband built on a lot adjoining the Crawford propperty, where plaintiff apparently still lives. The mother of plaintiff died in 1938 and in 1939 Crawford suffered a heart attack, following which he executed a will naming the plaintiff as sole beneficiary, the will describing the testator's condition as being then almost helpless, although there is testimony that he continued to report for work at the Greenbrier Hotel where he was employed. Between the execution of the will and 1941 Crawford suffered two strokes of apoplexy and was operated upon for a navel rupture. In the fall of 1941 Dr. W. E. Myles, of White Sulphur Springs, treated Crawford over a period of approximately ninety days for diabetes, which affected his mental condition but which was improving at the end of the treatment. On June 1, 1943, Crawford went to Lewisburg in the automobile of Georgia Cousins accompanied by her and her sister, and consulted Mr. C. N. McWhorter, an attorney at law, Georgia Cousins going to Mr. McWhorter's office while Crawford and her sister sat in the automobile in the street below. Georgia Cousins told Mr. McWhorter that she understood that possibly Crawford had disposed of his real estate but that if not he wished to convey it to her. Mr. McWhorter and she went to the County Clerk's office where he, having first ascertained by an examination of the record that Crawford had not disposed of his real property, procured a description of the property that he thought Crawford wished to convey. They then returned to the automobile where Crawford told the attorney that he wanted to make a deed to Georgia Cousins because she was taking care of him. Mr. McWhorter testified that Crawford at that time was quite old and feeble and that therefore he questioned him rather closely in order to be certain, if possible, of his capacity and that having concluded that Crawford was capable he drafted the deed basing the consideration upon support, maintenance and burial expenses. After the deed was prepared Mr. McWhorter mailed it, not to Crawford but to Georgia Cousins, and three days later, or on June 4, Crawford again went to Lewisburg in the car of Georgia Cousins to see Carl Burr, notary public, in whose presence the deed was signed and who signed the certificate of acknowledgment after asking Crawford if he knew what he was signing and receiving Georgia Cousins' assurance that he did. On June 24 pursuant to the execution of a lunacy warrant procured by Lydia Jordan the Mental Hygiene Commission of Greenbrier County found Crawford a mental defective, the order providing that he could be cared for at his home. On July 12 Crawford died. Dr. Lawless, who attended him at the time of his death, left Greenbrier County and was not available for the purpose of testifying in this case.

The question at issue of course is Crawford's mental capacity at the time he executed the instrument under attack. Delaplain, et al. v. Grubb, et al., 44 W. Va. 612, 30 S. E. 201; Farnsworth v. Noff singer, 46 W. Va. 410, 33 S. E. 246; Woodville v. Woodville, 63 W. Va. 286, 60 S. E. 140; Martin v. Moore, 92 W. Va. 671, 115 S. E. 833; J. S. Doak, Admr. of Charles Doak v. Victoria E. Smith, 93 W. Va. 133, 116 S. E. 691; Wade v. Sayre, 96 W. Va. 364, 123 S. E. 59. His capacity at that time is rebuttably presumed. Delaplain, et al. v. Grubb, et al., 44 W. Va. 612, 30 S. E. 201; Farnsworth v. Noffsinger, 46 W. Va. 410, 33 S. E. 246; Martin v. Moore, 92 W. Va. 671, 115 S. E. 833; Black v. Post, 67 W. Va. 253, 67 S. E. 1072; White v. Mooney, 73 W. Va. 304, 80 S. E. 844; Carrigan, Committee v. Davis, 84 W. Va. 473, 100 S. E. 91. Speaking strictly, if delivery is looked upon as an element of execution, there is no testimony that definitely fixes the time of execution, because none of the witnesses who were present when the paper and certificate of acknowledgment were signed, states that it was then delivered to Cousins. Crawford paid the recording fee. The recording receipt was not produced although Cousins says she sent it to the County Clerk's Office.

As far as lay testimony on the question of capacity is concerned the weight is about balanced, both the complainant and the defendant testfying and using five or six neighbors and acquaintances of Crawford whose views conflict on practically all material questions, some saying that they knew from his statements to them that he wished to leave his property to Lydia Jordan arid others that he wished Georgia Cousins to have it.

There was no objection to the testimony of Lydia Jordan concerning the mental capacity of Crawford, Jordan being interested in the outcome of this suit affecting the estate of the deceased, concerning whose capacity her opinion is based upon personal communication and therefore her testimony is inadmissible. Freeman v. Freeman, 71 W. Va. 303, 308, 76 S. E. 657. However, Georgia Cousins testified along the same line, thereby waiving the possible objection to testimony of the plaintiff. Curtis v. Curtis, 85 W. Va. 37, 40, 100 S. E. 856.

Mr. C....