Lake v. Webber, 8757.

• Citation: 120 Mont. 534
• Decision Date: 14 January 1948
• Docket Number: No. 8757.,8757.
• Parties: LAKE v. WEBBER et al.
• Court: United States State Supreme Court of Montana

120 Mont. 534

LAKE
v.
WEBBER et al.

No. 8757.

Supreme Court of Montana.

Jan. 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.

[120 Mont. 535]

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

[120 Mont. 536]

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

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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...