Lohman v. Sherwood
| Decision Date | 14 June 1943 |
| Docket Number | Record No. 2567. |
| Citation | 181 Va. 594 |
| Court | Virginia Supreme Court |
| Parties | JOHN H. LOHMAN, JR., EXECUTOR, ETC. v. LUCILLE S. SHERWOOD. |
1. REFERENCE AND COMMISSIONERS — Review of Report — Weight of Report. — The report of a commissioner is not as binding upon the court as a verdict of a jury.
2. REFERENCE AND COMMISSIONERS — Review of Report — Duty to Examine Evidence and Review Conclusions — Power to Overthrow Conclusions. — When exceptions are filed, it is the duty of the court to examine the evidence, review the conclusions of the commissioner and determine whether or not the conclusions are supported by the evidence. If the testimony is conflicting and the commissioner's conclusions are supported by competent and unimpeached witnesses, the court should not set aside or disturb the report unless the weight of the testimony and the nature of the evidence is such as to make it clear that the commissioner erred.
3. REFERENCE AND COMMISSIONERS — Review of Report — Duty to Examine Evidence and Review Conclusions — Power to Overthrow Conclusions. — Notwithstanding the weight due to a commissioner's report and the respect which is accorded his findings, neither the trial court nor the Supreme Court of Appeals should avoid the duty of weighing the evidence when its sufficiency is fairly challenged. Neither in the trial court, nor in the Supreme Court of Appeals upon appeal, should any judgment stand if the record shows that it is unsupported by the testimony.
4. REFERENCE AND COMMISSIONERS — Review of Report — Findings Supported by Credible Evidence. — If the findings of the commissioner are supported by credible testimony, then his findings should be sustained.
5. WILLS — Testamentary Capacity — Sufficient Mind and Memory to Understand Nature of Act. — The generally accepted test of testamentary capacity is that the testator must have sufficient mind and memory to understand the nature of his act in disposing of his property, and to know the extent of his property and the objects of his bounty.
6. INSANITY — What Constitutes — Depends on Circumstances. — Every case in which mental capacity is in issue must depend on the peculiar circumstances surrounding the execution of the instrument in question, as the facts in one case rarely serve to illustrate or elucidate another.
7. INSANITY — Liability of Contract — Testamentary Capacity. — A reasonable test, suggested by several courts for the purpose of determining whether an infirmity operates to render a person incapable of binding himself absolutely by contract, is whether his mind has been so affected as to render him incapable of understanding the nature and consequences of his acts, or, more exactly, whether his mental powers have become so far affected as to make him unable to understand the character of the transaction in question.
8. DEEDS — Requisites and Validity — Capacity to Execute. — No particular degree of mental acumen is to be prescribed as the measure of one's capacity to execute a deed. The question is answered when it is determined whether, at the time of the execution of the instrument, the grantor had sufficient mental capacity to understand the nature of the transaction he was entering into, and to assent to its provisions.
9. INSANITY — Mental Weakness Alone Does Not Invalidate Instrument. — Courts do not undertake to measure the size of peoples' understanding or capacities and therefore hold that mental weakness alone will not invalidate an instrument. Yet where a great weakness of mind concurs with gross inadequacy of consideration or circumstances of suspicion, the transaction will be presumed to have been brought about by undue influence and will be set aside.
10. INSANITY — Execution of Instrument — Weight and Sufficiency of Evidence — Case at Bar. — In the instant case, a controversy between testator's children, beneficiaries under his will, and testator's mistress, who claimed title to the property under instruments executed during the last months of testator's life, the beneficiaries under the will filed a bill alleging that testator's mistress had by undue influence and without consideration while testator was mentally incompetent stripped him of his property by (1) a deed bearing the date of March 24, 1939, conveying three lots, (2) a deed bearing the date of July 31, 1939, conveying an apartment house, (3) a bill of sale conveying certain notes bearing the date of February 6, 1939, and executed and acknowledged on August 1, 1939, and (4) a general power of attorney dated July 6, 1939. The findings of a commissioner held that the execution of the deed on March 24, 1939, was the culmination of the expressed intention of the grantor made at the time the lots were purchased and that this gift was valid and that he had expressed his intention to build a home for his mistress on the lots and that she had the right to use the money expended in the erection of the building. The commissioner also found that all instruments executed after July 1, 1939, were invalid. Circumstances and medical testimony indicated that subsequent to July 1, 1939, the testator was mentally incompetent.
Held: That since the findings of the commissioner were supported by substantial evidence they should have been affirmed.
Appeal from a decree of the Circuit Court of the city of Norfolk. Hon. Allan R. Hanckel, judge presiding.
The opinion states the case.
James G. Martin & Son, for the appellants.
W. R. Ashburn, for the appellee.
John H. Lohman, a lieutenant in the United States Navy, retired in 1922. While he was living in Portsmouth with his wife and two children, John H. Lohman, Jr., and Mary Lohman, he became estranged from his family. In an uncontested suit instituted in 1925, his wife obtained a divorce a mensa. In the same suit the court approved a voluntary settlement of the property rights of the parties and eliminated the marital rights of each in the property of the other. Neither party sought to enlarge the decree a mensa into an absolute divorce. Some time after the decree was entered, the wife was adjudicated to be non compos mentis and was committed to the care of her daughter, with whom she now resides.
After the divorce decree was entered, Lohman lived alone in Portsmouth until 1926 or 1927, when he and Lucille S. Sherwood began to live together. They continued to so live until November, 1939, when Lohman's two children had him removed to the Naval hospital in Portsmouth. Later his daughter took him to her home, where he died testate in March, 1940.
Lohman seems to have been frugal, living on his retired officer's pay and making substantial profits on investments. At the time of his death, he had accumulated a considerable estate, the exact amount of which is not disclosed in the record.
Lohman and Mrs. Sherwood seem to have been happy and contendted during the thirteen years that they lived together. She kept the house, did the marketing, and was a close personal companion in his social affairs. Different witnesses, who were frequent visitors in the home, stated that Lohman was considerate, devoted and affectionate in his attitude toward Mrs. Sherwood and that she responded in kind. During the last years of his life she acted as his chauffeuse and nurse. She was kind to and considerate of Lohman's children, who were frequent visitors in the home, although they knew of the relations existing between Mrs. Sherwood and their father.
Lohman, in his last will, named his son as executor and divided all of his property between his two children, John H. Lohman, Jr., and Mary Lohman Perrot.
The executor and beneficiaries filed the bill in this cause, alleging that in 1939 their father was 67 years of age, physically weak and mentally incompetent; and that Mrs. Sherwood was an intelligent woman twenty years his junior, who, while "living in adultery with him," "by undue influence, and without consideration, stripped him of his property," described in the following instruments: (1) A deed bearing date March 24, 1939, conveying to Mrs. Sherwood three lots in the Bay View Beach section of Norfolk; (2) a deed bearing date July 31, 1939, conveying to Mrs. Sherwood the Sherwood Apartments on Ocean View avenue in Ocean View; (3) a bill of sale bearing date February 6, 1939, conveying to Mrs. Sherwood certain notes executed by Bessie G. Hanks, payable to Lohman, with payment secured by a deed of trust on real estate, which bill of sale was executed and acknowledged on August 1, 1939; (4) a general power of attorney dated July 6, 1939, authorizing Mrs. Sherwood to sell and convey Lohman's property check on his bank account and conduct any and all other business for him.
The bill also alleged that Mrs. Sherwood had converted to her own use more than $7,000, from the Seaboard Citizens Bank, and other funds owned by Lohman.
To this bill Mrs. Sherwood filed an answer admitting the execution of the instruments but emphatically denying that she had fraudulently, or by the exercise of undue influence, and, while Lohman was physically and mentally incompetent, illegally stripped him of property of any kind or description.
The case was referred to Richard W. Ruffin, one of the commissioners in chancery of the Circuit Court of the city of Norfolk, who was directed "to take evidence, inquire and report to the court" on each of the issues raised by the pleadings.
The commissioner found that early in the summer of 1939 John H. Lohman became mentally incompetent, and that all instruments executed or acknowledged after July 1, 1939, were invalid and all instruments executed prior to that time were valid. While the commissioner stated that the power of attorney dated July 6, 1939, was invalid, he found that Mrs. Sherwood had not illegally used the power of attorney for her own benefit. To this report each side filed exceptions. The trial court overruled the...
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