Lake v. Webber

• Decision Date: 14 January 1948
• Docket Number: 8757.
• Citation: 188 P.2d 416,120 Mont. 534
• Parties: LAKE v. WEBBER et al.
• Court: Montana Supreme Court

188 P.2d 416

120 Mont. 534

LAKE v. WEBBER et al.

No. 8757.

Supreme Court of Montana

January 14, 1948

Appeal from District Court, Sixteenth District, Fallon County; W. R Flachsenher, Judge.

Action by Ernest Lake, as administrator of the estate of Edwin Lake deceased, against Percy J. Webber and Ethel Webber his wife and others, to cancel the deed and bill of sale given by Edwin Lake, deceased, to Percy J. Webber. From an adverse judgment, plaintiff appeals.

Judgment affirmed.

Al Hansen, of Baker, Forrest C. Rockwood, of Kalispell, and Paul K. Cooney, of Walla Walla, Wash., for appellant.

D. R Young, of Baker, for respondent.

ANGSTMAN, Justice.

This action was brought to cancel a deed and bill of sale given by Edwin Lake to Percy J. Webber. The complaint alleges in substance that Edwin Lake at the time of signing the instruments was incompetent mentally and that the defendant Percy J. Webber and Ethel Webber, his wife, induced him to execute the instruments by undue influence.

The answers of all the defendants save Rex Flint and his wife Freda Flint, consisted of a general denial together with affirmative allegations that Edwin Lake and his wife Pearl, prior to her death, considered and treated Percy J. Webber as their son and repeatedly expressed their intention to leave their property to him and alleged that after Percy J. Webber obtained the deed from Edwin Lake he transferred some of the property to the defendant Rex Flint and the defendants Gilliams in conformity with the wishes expressed by Pearl Lake prior to her death. The separate answer of Rex Flint and his wife alleges that the property which they obtained from the defendant Webber was given to them in payment of a promissory note of $1,500 signed by Pearl Lake several years before and made payable to Rex Flint. The reply put in issue the affirmative allegations of the answers.

The record consists of nearly 400 typewritten pages and we shall not undertake to review all of the evidence. The principal facts of the case are summarized in the findings of fact made by the trial judge. Those findings are:

That Edwin Lake died intestate at Baker, Montana, on January 24, 1945, then of the age of 65 years; that his wife Pearl Lake, died at Baker on October 29, 1944; that Edwin Lake left no wife, issue or parents, and his heirs at law consisted of two living brothers, a living sister and several children of deceased brothers or sisters; that defendant Percy J. Webber was not an heir at law of Edwin Lake but a son of Edwin Lake's sister who is still living.

That defendant Rex Flint is not related to any of the other defendants.

That defendants Gilliams are brothers of Pearl Lake, deceased.

That on November 2, 1944, Edwin Lake filed a petition for the termination of the joint tenancy created between him and his wife, Pearl Lake, on February 14, 1933, upon the real estate owned by them; that thereafter and on December 8, 1944, by a court decree the joint tenancy was terminated and the sole ownership of the real property vested in Edwin Lake.

That for several years before her death Pearl Lake carried on the active management of the business affairs of Edwin Lake due to the fact that he was an invalid afflicted for about 15 years with palsy or Parkinson's disease which caused a considerable shaking of his hands and interfered with his movements; that on November 3, 1944, Edwin Lake executed a general power of attorney to defendant Percy J. Webber to carry on his business; on that morning Edwin Lake instructed Mr. Young, who had been the attorney for Edwin and Pearl Lake for many years, to prepare a deed and bill of sale covering his property; that in the afternoon of that day Edwin Lake signed, executed and delivered to defendant Percy J. Webber a warranty deed to all of his real property 'reserving, however, a life estate and all income and use of all of said property' during his life. His signature to the power of attorney and deed was witnessed by Dr. Weeks and acknowledged by D. R. Young as notary public. On November 4th the deed was filed and recorded in the office of the county clerk of Fallon county.

That before signing the power of attorney and warranty deed Edwin Lake discussed the same with his nephew, the defendant Percy J. Webber, who then requested D. R. Young to prepare the same; each instrument was read over to Edwin Lake and he signed each of them after indicating that he understood and approved them.

That his hands shook considerably from his affliction and it was necessary to steady his hand or arm during the signing; that his affliction had not affected his mind or mental faculties and no undue influence was exerted by anyone during the execution of the instruments, and the transactions were fair and free from fraud.

That on November 6th, in accordance with instructions from Edwin Lake and defendant Percy J. Webber, D. R. Young prepared and read to Edwin Lake a bill of sale of all the personal property belonging to him, including a Chrysler automobile, household furniture and equipment, transferring the same to defendant Percy J. Webber.

That his signature was witnessed by D. R. Young and Roy R. Gilliam, and that he indicated a desire to sign the same after it had been read to him.

That his hands were shaking from palsy and that he was assisted during the signing and that this transaction was likewise fair and free from fraud or undue influence.

That the plaintiff Ernest Lake was present for the funeral services of Pearl Lake conducted at Baker on October 31, 1944, where he remained until November 3rd; that he talked with defendant Percy J. Webber about the power of attorney and went to D. R. Young's office with him the day after the funeral.

That after the power of attorney was signed on November 3rd, Ernest Lake and Percy Webber accompanied D. R. Young to the latter's office where a discussion took place relating to the Lake property. Defendant Percy Webber reported to Mr. Young that Edwin Lake insisted on giving all his property to him; that he felt that Pearl Lake's wishes should be carried out and that a part of the property should go to Pearl's brothers. He inquired whether he could deed some of the property to the Gilliams after it had been conveyed to him by Edwin Lake and was informed that he could.

That Ernest Lake departed for Kalispell on November 3rd and did not return to attend the funeral of Edwin.

That Edwin Lake and his wife went to his family home in England in 1911 and stayed at the home of his sister, Mrs. Mary Webber, the mother of defendant Percy J. Webber. Percy J. Webber was then about 15 years of age. Edwin and Pearl invited Percy to come to America to make his home with them. This he did about two years later. He remained with Edwin and Pearl Lake from February 1913 until he entered the army in November 1917. After his discharge from the army in July 1919, he returned to the home of Edwin Lake where he remained until 1921. Defendants Percy Webber and Ethel were married on September 11, 1924. Thereafter they took up their residence at Tacoma, Washington, but visited back and forth with the Lakes frequently ever since. Mrs. Pearl Lake in September 1944, on one of the occasions when Ethel visited the Lakes at Baker, indicated to her how she and Edwin would like their property distributed; that the Lake home was to go to Pearl's four brothers, Roy R., Glen, Walter, and Benjamin F. Gilliam, and a small house to Roy, and the other house on lot 1 to go to Rex Flint in settlement of a note and other obligations. The other property she stated should go to Percy.

That Percy and Ethel Webber arrived in Baker on October 28, 1944, the night before the death of Mrs. Lake. They remained there until February 24, 1945, except that for about two weeks Ethel returned to Tacoma to settle their affairs.

That on November 3rd Edwin Lake was informed by D. R. Young that his wife Pearl had expressed her wishes as to the disposition of her property and he became excited and exclaimed, 'Everything goes to Percy. I want Percy to have everything.' Edwin was then asked if he wanted to make a will leaving everything to Percy or if he wanted to execute a deed and bill of sale. Mr. Lake then inquired if the will would have to go through court and, upon being informed that it would have to be probated, instructed Mr. Young to prepare a deed and bill of sale to all of the property to defendant Percy Webber.

That on November 9th Percy J. Webber and his wife executed and recorded deeds in which they carried out the wishes expressed by Pearl Lake by transferring some of the real estate to the Gilliams and some to Rex Flint, all of which was transferred subject to the life estate of Edwin Lake.

That Edwin Lake also changed the beneficiary of his life insurance policy after the death of Pearl to Ethel Webber, who was paid $3,255 as such beneficiary.

That decedents Edwin Lake and Pearl Lake indicated on several occasions to intimate acquaintances that they expected Percy Webber and Ethel Webber to take care of them and that they would have their property upon their death.

That this intention was carried out by Edwin Lake after the death of his wife, reserving the income from the property during his lifetime; that the naming of Ethel Webber as the beneficiary in Edwin's life insurance policy was part of the plan to have Percy and his wife receive their property.

As conclusions of law the court found that on the death of Pearl Lake, Edwin Lake became the sole owner of the property theretofore owned by them in joint tenancy; that the deed from Edwin Lake to Percy J. Webber and the bill of sale were legal and valid instruments transferring all of the property therein described; that defendants have established by a...