Kelly v. Perrault

• Decision Date: 06 March 1897
• Citation: 48 P. 45,5 Idaho 221
• Parties: KELLY v. PERRAULT
• Court: Idaho Supreme Court

48 P. 45

5 Idaho 221

KELLY v. PERRAULT

Supreme Court of Idaho

March 6, 1897

PLEADING UNDUE INFLUENCE.-The facts constituting undue influence, like those constituting fraud, must be pleaded; it not being sufficient to aver undue influence, which is a legal conclusion.

MENTAL CAPACITY-WHEN COMPETENT TO TRANSACT BUSINESS.-A grantor who has mental capacity sufficient to understand ordinary business transactions at the time of the factum, and understands the motive and effect of the deed which he makes knows what property he is conveying and to whom it is being conveyed, is competent to make such deed.

FRAUD-UNDUE INFLUENCE.-The act of inducing one who has not sufficient mind to know what he is doing to sign a deed, while an actual fraud, does not constitute undue influence.

SAME-HOW PROVEN.-Undue influence is proven by showing that a person who has mental capacity to understand, and does understand what he is doing, is impelled by artifice, force or fear to do, what he does not want to do, and what he would not otherwise do but for such influence.

IMPEACHING DEED.-Declarations of a grantor made long prior to his deed and inconsistent therewith, are not admissible for the purpose of impeaching such deed.

WEIGHT OF EVIDENCE.-The evidence of subscribing witnesses to a deed and of persons who are familiar with the grantor and the transaction involved, are entitled to great weight, while the opinion of an expert witness is entitled to but little weight as against such evidence.

HYPOTHETICAL QUESTIONS TO WITNESS.-A hypothetical question propounded to an expert witness should be predicated upon facts proven as facts which the evidence in the particular case tends to establish, and not upon conjecture.

INSTRUCTIONS.-Alleged errors of a trial court in an equity case, in giving or refusing to give instructions to a jury called to assist the court, are immaterial and will not be reviewed on appeal. The propriety of giving instructions in such case is doubtful.

EQUITY PRACTICE.-Issues of fact in an equity case are properly presented to the jury by interrogatories; but there should be only one series of interrogatories in such case, and such interrogatories should cover the material questions in dispute.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Reversed and remanded.

George Ainslie and W. E. Borah, for Appellants.

The evidence of an officer or notary public or subscribing witnesses is entitled to peculiar weight, and is conclusive in the absence of clear and satisfactory evidence to the contrary. (Massay v. Huntington, 118 Ill. 80, 7 N.E. 269; Buckey v. Buckey, 38 W.Va. 168, 18 S.E. 383.) The rule in this class of cases is, Had the contracting party sufficient mental capacity to reasonably understand the value and effect of what he was doing? (Trimbo v. Trimbo, 47 Minn. 389, 50 N.W. 350; Aiman v. Stout, 42 Pa. St. 114.) A man is capable of deeding his property if he is capable of transacting ordinary business, settling accounts, etc. (Frances v. Wilkinson, 147 Ill. 370, 35 N.E. 150; Meeker v. Meeker, 75 Ill. 260; Freeman v. Easley, 117 Ill. 317, 7 N.E. 656.) It is not necessary that the grantor should comprehend his deed in legal form, or be able to go entirely through the matter without prompting. (Trish v. Newell, 62 Ill. 197, 14 Am. Rep. 79; Carpenter v. Calvert, 83 Ill. 62.) Although a mind may be impaired, affected by dementia, yet if the party understands the nature of his act it is sufficient. (Pickeral v. Morris, 97 Ill. 220; Stone v. Millburn, 83 Ill. 105; Redfield on Wills, 98-100; English v. Porter, 109 Ill. 285.) The fact that a party is physically incapable of looking after his property, or that his mind is enfeebled by age or disease, will not render him incapable of deeding his property. (Argo v. Coffin, 142 Ill. 368, 34 Am. St. Rep. 86, 32 N.E. 679; Whitney v. Twombly, 136 Mass. 145.) As to the weight of the physician's testimony as against those personally acquainted with the party and the transaction, see Rutherford v. Morris, 77 Ill. 397; Burley v. McGough, 115 Ill. 11, 3 N.E. 738. Fraud or undue influence must be directly connected with the execution of the instrument. It must be a moving power at the time the instrument is executed. (Rutherford v. Morris, 77 Ill. 399; Guild v. Hull, 127 Ill. 523, 20 N.E. 665; Reichenbach v. Ruddach, 127 Pa. St. 564, 18 A. 432.) Influence through affection, etc., will not avoid a deed. (Burt v. Quisenberry, 132 Ill. 385, 24 N.E. 622; Children's Aid Soc. v. Loveridge, 70 N.Y. 387; Hale v. Cole, 31 W.Va. 576, 8 S.E. 516; Nichols v. Kerr, 20 W.Va. 252; Coit v. Patchen, 77 N.Y. 533.) Undue influence must not be the influence of attachment, affection, etc., and must amount to force or coercion. (Goodwin v. Goodwin, 59 Cal. 561; Howe v. Howe, 99 Mass. 88; Carpenter v. Bailey, 94 Cal. 406, 29 P. 1102.) Undue influence must destroy the will of the grantor completely, take away his wishes and thwart his purposes. (Marx v. McGlin, 88 N.Y. 357.) Unequal division of the property gives rise to no inference against the validity of the deed. (Freeman v. Easley, 117 Ill. 317, 7 N.E. 657; Horn v. Pullman, 72 N.Y. 269, 276.) The grantor may favor his children one against the other. (Cleomater v. Kinster, 43 Ill. 272; Rutherford v. Morris, 77 Ill. 377; Hill v. Nash, 41 Me. 585, 66 Am. Dec. 266-267; Jackson v. King, 4 Cow. 207, 15 Am. Dec. 354, and note; 27 Am. & Eng. Ency. of Law, 489; Sanfley v. Jackson, 16 Tex. 584; Jenkins v. Pye, 1 Pet. (U.S.) 241; Millican v. Millican, 24 Tex. 446; Muloch v. Muloch, 31 N. J. Eq. 394; Leddel v. Starr, 20 N. J. Eq. 274; Pomeroy's Equity Jurisprudence, sec. 962.) The terms "confidential relations" and "fiduciary relation" are convertible terms in legal parlance. (Robbins v. Hope, 57 Cal. 493; Guild v. Hall, 127 Ill. 523, 20 N.E. 665; Brownfield v. Brownfield, 43 Ill. 148.) It will be seen by reference to the court's instruction, given of his own motion, that he did not instruct them as to the burden of proof at all. We were entitled to a clear instruction upon this proposition. The burden in this case was upon the plaintiffs. (English v. Porter, 109 Ill. 285.) Indefinite, uncertain and contradictory findings will not sustain a judgment. (Gilman v. Curtis, 66 Cal. 116, 4 P. 1094; Learned v. Castle, 78 Cal. 454, 18 P. 872, 21 P. 11.)

Hawley & Pockett, for Respondent.

The supreme court of Idaho territory, in Mootry v Hawley, 1 Idaho 543, laid down the rule that the appellate court would not disturb a judgment or verdict, or order denying a new trial, where there is a substantial conflict of testimony; and this rule has been followed in a long line of decisions of this court. (Ainslie v. Printing Co., 1 Idaho 64; Black v. City of Lewiston, 2 Idaho 276, 13 P. 80.) A deed by one in a weak state of mind, to one who sustains confidential relations toward him, and where there is no consideration, will not be upheld, as undue influence will be presumed. (Allore v. Jewell, 94 U.S. 506; McFadden v. Vincent, 21 Tex. 47; McCraw v. Davis, 2 Ired. Eq. (N. C.) 618; Hale v. Brown, 11 Ala. 87; Graves v. White, 4 Baxt. (Tenn.) 38; Griffith v. Godey, 113 U.S. 89, 5 S.Ct. 383; Conley v. Nailor, 118 U.S. 133, 6 S.Ct. 1001; Moore v. Moore, 56 Cal. 89; Keeble v. Cummins, 5 Hayw. (Tenn.) 43; Gates v. Cornett, 72 Mich. 420, 40 N.W. 740; Wilkinson v. Sherman, 45 N. J. Eq. 421, 18 A. 228.) Where confidential relations exist between the donor and donee, a gift obtained by the person standing in such relation is prima facie void, and the burden of proof is thrown on the donee to show that the gift was the free, voluntary and unbiased act of the donor. (8 Am. & Eng. Ency. of Law, 1310-1312, and note 2; Ford v. Hennessy, 70 Mo. 580; Todd v. Grove, 33 Md. 188; Woodbury, 141 Mass. 329, 55 Am. Rep. 479, 5 N.E. 275.) As to the question of undue influence: In re Sprat's Will, 32 N.Y.S. 1092, 11 Misc. 218; In re Nolte's Will, 32 N.Y.S. 226, 10 Misc. 608; In re Graf's Will, 31 N.Y.S. 682, 10 Misc. 293; Smith v. Smith 67 Vt. 443, 32 A. 255; Rivard v. Rivard, 109 Mich. 98, 63 Am. St. Rep. 566, 66 N.W. 681; Devlin on Deeds, sec. 84. When a foundation has been laid by evidence tending to show unsoundness of mind, the previously declared intentions of testator are admissible to show the deed is the result of imposition. (Howe v. Howe, 99 Mass. 88-91; In re Goldthorpe's Estate, 94 Iowa 336, 58 Am. St. Rep. 400, 62 N.W. 845; Garland v. Smith, 127 Mo. 567, 28 S.W. 191, 29 S.W. 836; In re Ely's Estate, 16 Misc. 228, 39 N.Y.S. 177.) Before instructions claimed to be erroneous, can be considered in this court, there must be: 1. A special and specific objection made to each instruction by number, and exception taken in the same manner, and that a general objection is insufficient; 2. That the grounds of the objection and exception must be specially and distinctly expressed. (Black v. City of Lewiston, 2 Idaho 276, 13 P. 80; Griswold v. Boley, 1 Mont. 545; Gum v. Murray, 6 Mont. 10, 9 P. 447; Haak v. Struve, 38 Kan. 326, 16 P. 686; Bard v. Elston, 31 Kan. 274, 1 P. 565; State v. Wilgus, 32 Kan. 126, 4 P. 218; McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 P. 1076; Cockrill v. Hall, 76 Cal. 192, 18 P. 318; Jacobs v. Mitchell, 2 Colo. App. 456, 31 P. 235.) This is a case in equity and the verdict of the jury is only advisory. (Schneider v. Brown, 85 Cal. 205, 24 P. 715; Sweetser v. Dobbins, 65 Cal. 529, 4 P. 540; Diel v. Seeunders, 8 Cal. 281; Stockman v. Riverside L. & I. Co., 64 Cal. 57, 28 P. 116; Spottiswood v. Weir, 66 Cal. 525, 6 P. 381; Bell v. Marsh, 80 Cal. 411, 22 P. 170.) Where special issues are submitted to the jury in an equity case, and the court itself finds on all the issues, error in giving or refusing instructions is immaterial, as the correctness of the...