Keys v. McDowell, No. 7,900.

• Docket Nº: No. 7,900.
• Citation: 100 N.E. 385, 54 Ind.App. 263
• Case Date: January 08, 1913
• Court: Court of Appeals of Indiana

54 Ind.App. 263
100 N.E. 385

KEYS et al.
v.
McDOWELL et al.

No. 7,900.¹

Appellate Court of Indiana, Division No. 2.

Jan. 8, 1913.

Appeal from Circuit Court, Kosciusko County; L. H. Wrigley, Special Judge.

Action by Clementine Nichols Keys and others against William F. McDowell and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

[100 N.E. 386]

Frazer & Frazer, of Warsaw, Brown & Dolman, of St. Joseph, Mo., John L. Baker, and Henley, Matson & Gates, all of Indianapolis, for appellants. L. W. Royse and Bertram Shane, both of Warsaw, for appellees.

LAIRY, J.

The appellants as heirs of Elijah Hays brought this suit against William McDowell and others as trustees and the Nicholas Lowe Theological Institute, a corporation, the purpose of which suit was to set aside the conveyance of certain real estate and the transfer of certain personal property made by Elijah Hays in his lifetime to said trustees to be held by them for the benefit of the Nicholas Lowe Theological Institute. The complaint shows that in the year 1887 Elijah Hays and his wife made a conveyance of most of the property of which he was then possessed to the Missionary Society of the Methodist Episcopal Church, and that said society on the date of said conveyance entered into a contract to pay an annuity of $1,000 to Hays during his life, and an annuity of $500 to his wife during her life, with the provision that, in case Mrs. Hays survived Mr. Hays, her annuity should be increased to $1,000 during the remainder of her life. After this conveyance, as the complaint avers, the missionary society took possession of the property so conveyed, and collected the rents and profits, and paid the annuities, and that Charles McCabe, representing such society, with the assistance of the defendants Alleman, Guild, and Royse, controlled and managed such property, and collected the rents and profits and paid the annuities therefrom, as provided in the contract. As shown by the complaint, Elijah Hays and his wife both lived until the 4th day of November, 1902, at which time the wife died, but he lived until the 26th day of July, 1907. During the time which elapsed from the date of the first conveyance to the death of the wife, Elijah Hays accumulated considerable property, of which he was possessed at the time of his wife's death. This is the property which was conveyed to the trustees for the benefit of the Nicholas Lowe Theological Institute on December 24, 1902, which deed is attacked by the first paragraph of complaint. This paragraph alleges that at the time this deed was executed the grantor was a person of unsound mind, and it also avers, in substance, that at the time the deed in question was executed and for a long time prior thereto the grantor was old and sick, weak, and infirm, both in body and mind on account of which he was very susceptible to the influence of others; that the grantor, Hays, was a member of the Methodist Episcopal Church, and that one Charles McCabe, a bishop of that church and a man of great force and persuasive ability, was his close friend and spiritual adviser; and that, by reason of the relation of trust and confidence and spiritual guidance which existed between them, said McCabe had acquired over Hays an influence which he was unable to resist. The complaint then charges that said McCabe, taking undue and improper advantage of said relation of trust and confidence and of the mental weakness of Elijah Hays, and of the influence which he had acquired over him as aforesaid, and designing and conspiring with the defendants Royse and Alleman and Guild, and with others to plaintiffs unknown, to deprive him of all of said remaining property and rights, the said McCabe fraudulently and wrongfully persuaded, procured, and compelled the said Elijah Hays to sign and deliver a deed conveying

[100 N.E. 387]

to Charles McCabe, James N. Fitzgerald, Lemuel W. Royse, William D. Alleman, and Daniel H. Guild all his said property. The second paragraph of complaint is similar to the first, except that it seeks to set aside a conveyance between the same parties made by a deed dated on November 20, 1904, conveying the same property described in the deed of December 24, 1902, and, in addition thereto, including a description of one lot not described in the first deed. The issues formed on the complaint were tried by the court, resulting in a finding and judgment for the defendants.

The only error properly assigned in this court is the action of the trial court in overruling appellants' motion for a new trial. Of the several reasons assigned for a new trial only two are urged as grounds for reversal.

[1] The first point presented by appellant is that the evidence is not sufficient to sustain the finding of a court. In deciding the question thus presented, this court cannot weigh the evidence, but will look only to the evidence most favorable to the finding. If there is some evidence tending to support the finding, the judgment must stand, no matter how much evidence there is to the contrary. Wolcott v. Hayes, 43 Ind. App. 578, 88 N. E. 111;Cleveland, etc., R. Co. v. Gossett, 172 Ind. 525, 87 N. E. 723.

[2] Counsel do not agree as to the theory of the complaint. Counsel for appellees contend that it proceeds upon the theory that the conveyances in question were void upon the ground that the grantor at the time they were made was a person of unsound mind, while counsel for appellants insist that it proceeds upon the theory that the conveyances were avoidable on the ground that they were procured by undue influence. Evidence was introduced by appellants tending to show that the grantor was of unsound mind at the dates of the...