Ludwig v. Bressler

• Decision Date: 25 July 1918
• Docket Number: 5054.
• Citation: 253 F. 8
• Parties: LUDWIG et al. v. BRESSLER.
• Court: U.S. Court of Appeals — Eighth Circuit

253 F. 8

LUDWIG et al. v. BRESSLER.

No. 5054.

United States Court of Appeals, Eighth Circuit.

July 25, 1918

Rehearing Denied September 30, 1918.

H. C Brome, of Worland, Wyo. (Clinton Brome, of Omaha, Neb., on the brief), for appellants.

Frederick S. Berry, of Wayne, Neb. (A. R. Davis, of Wayne, Neb., and Vinton Pike, of St. Joseph, Mo., on the briefs), for appellee.

Before SANBORN and CARLAND, Circuit Judges, and BOOTH, District Judge.

SANBORN Circuit Judge.

This is a suit in equity brought on July 28, 1916, by Mrs. Sarah A Bressler, to avoid two deeds of a farm in Nebraska made by her father and mother, Jacob D. Fenstermacher and Caroline Fenstermacher, on October 18, 1906, and April 25, 1910 respectively, to Mrs. Mary C. Ludwig, the sister of Mrs. Bressler, and a third deed of the same land to the same grantee made by Mrs. Fenstermacher on April 17, 1914, after the death of her husband. The grounds of the suit are that at the times the respective deeds were made Mrs. Fenstermacher, who held the title to the farm from 1882 until 1906, had not sufficient mental capacity to execute a valid deed, and that she was induced to make each of these deeds by the undue influence of Mr. and Mrs. Ludwig. The case was referred to Honorable Charles F. McLaughlin, the special master, who heard the evidence and made an exhaustive report of the facts and the law as he found them to be, and concluded that the plaintiff was entitled to no relief. Exceptions to this report were filed, and, after hearing them, the court below rendered a decree in favor of the plaintiff. The appeal questions this decree.

Counsel for the appellee has made a motion to dismiss the appeal or to affirm the decree on account of the failure of the appellants to comply with rules 11 and 24 of this court (188 F. ix, xvi, 109 C.C.A. ix, xvi). Rule 11 requires the appellant to file an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged. The court below made no order sustaining or overruling any of the specific exceptions to the master's report and filed no opinion or finding, but simply rendered a decree which recited that it sustained 'the exceptions to the report of the master filed by the complainant herein as to the general conclusion of the master upon the law and the facts,' and decreed that the three deeds be avoided and the plaintiff have an undivided half of the land. The appellants assign as errors: (1) That the court found upon the issues generally for the plaintiff and against the defendants; (2) that it found that the deeds were procured by them by undue influence; (3) that it found that Mr. and Mrs. Fenstermacher were, on October 18, 1906, and thereafter continually mentally incompetent and incapable of making valid conveyances of real estate, and that it awarded an undivided half of the land to the plaintiff. In the absence of any opinion or finding of the court below, except that which appears in the decree, this assignment of errors is clearly sufficient. The court below could not have rendered the decree without first finding either mental incompetency of the Fenstermachers or undue influence by the defendants, and the plaintiff assigned each of these findings and the general finding for the plaintiff as errors. What the court may have thought regarding the minor issues did not appear, and the appellants should not be deprived of their right to a review of the findings on the crucial questions at issue because they did not guess what the court thought regarding others and charge it with error in that thought.

Rule 24 requires the appellants to file a brief which shall contain: (1) A statement of the case exhibiting the questions involved and the manner in which they were raised; (2) a specification of the errors relied upon and a statement as particularly as may be in what the decree is alleged to be erroneous; (3) a brief of the argument presenting a clear statement of the points of law or fact to be discussed with a reference to the pages of the record and the authorities relied upon in support of each point. The brief of the appellants contains: (1) A fair statement of the case which discloses two controlling questions, the alleged incompetency of the Fenstermachers to make the deeds and the alleged undue influence that induced them to do so; (2) the assignment of errors; (3) an argument which presents the points of law which they discuss, and a citation of the authorities on which they rely. This argument also states decisive facts which appellants maintain were established by the evidence, but the brief does not set forth the pages of the record where the evidence in support of some of these facts may be found. However, as the master's report sets forth the facts which he found, and his conclusion was in favor of the appellants, and, as all the evidence on the two important issues must be read and considered in order to decide them, the court is unwilling to deprive the appellants of the review of the decision below on account of their failure to specify the pages of the record where some of the evidence in their favor may be found, especially in view of the fact that the opinions of the special master and the court below are in conflict. The motion to dismiss or affirm is therefore denied.

The real issue in this case is the validity of the deed of Mr. and Mrs. Fenstermacher to Mary C. Ludwig, dated October 18, 1906, for this deed conveyed the farm consisting of about 350 acres of land. The deed of April 25, 1910, covered the same land and 40 acres more that seems to have been omitted from the earlier deed by mistake, and the deed of April 17, 1914, was a quitclaim deed of the same property made by Mrs. Fenstermacher after the death of her husband. If the deed of October, 1906, was not invalid, the subsequent confirmatory deeds are of little account. It follows that in the examination and consideration of the evidence the date, October 18, 1906, has been kept constantly in mind, for it is the competency of Mrs. Fenstermacher on that day and the undue influence upon her of the defendants on that day, and not at later dates, that condition the validity of the deed of that date and the decision of this case.

The evidence as to the mental capacity of Mrs. Fenstermacher to understand what she was doing when she made them and intelligently to determine whether or not she would do it is conflicting, but the preponderance of it is that she had ample capacity to understand the effect of her deeds and to decide intelligently whether or not she should make them. On the question of undue influence the evidence is more evenly balanced. All the evidence on these issues has been thoughtfully considered, but it is too voluminous for recital in this opinion. The rules of law by which the evidence upon this case must be measured, and by which the issues it presents must be decided, are established beyond controversy by the decisions of the federal courts.

The question of the mental capacity of an aged or feeble person to dispose of her property is not whether or not the powers of her mind were impaired, or whether or not she had ordinary capacity to do business, but it is whether or not she had any-- the smallest-- capacity to understand what she was doing, and to determine intelligently whether or not she would do it. Sawyer v. White, 122 F. 223, 224, 58 C.C.A. 587, 588; Mann v. Keene Guaranty Sav. Bank, 29 C.C.A. 547, 548, 86 F. 51, 52; Rugan v. Sabin, 3 C.C.A. 578, 584, 53 F. 415, 421; Stewart's Ex'r v. Lispenard (N.Y.) 26 Wend. 303; Ex parte Barnsley, 3 Atk. 168; Hill v. Nash, 41 Me. 586, 66 Am.Dec. 266; Jackson v. King (N.Y.) 4 Cow. 216, 15 Am.Dec. 354; Dennett v. Dennett, 44 N.H. 531, 84 Am.Dec. 97; President, etc., v. Merritt (C.C.) 75 F. 480, 492. Any other test would wrest from the feeble and the aged that power over their earnings and savings which is their best safeguard against misfortune, and would produce endless uncertainty, difficulty, and litigation.

Counsel for the complainant contend that the intimate and affectionate relation between Mr. and Mrs. Fenstermacher and Mr. and Mrs. Ludwig which existed while they were living together from 1903 until the death of the former in 1914 and 1915, respectively, raise the legal presumption that the deeds in question were voidable. There are cases in which fraud has been charged, and some others in which the facts have established a practical surrender of the will of the grantor to the grantee where such a presumption has been indulged. Gibson v. Hammang, 63 Neb. 349, 352, 353 88 N.W. 500; Bennett v. Bennett, 65 Neb. 432, 440, 91 N.W. 409, 96 N.W. 994; Allore v. Jewell, 94 U.S. 506, 510, 24 L.Ed. 260. But the established rule in the courts of the United States is that, notwithstanding the fiduciary relation of parent and child, a deed of gift from one to the other in the absence of fraud is presumed to be valid, and the burden of proof of its invalidity on account of undue influence is on him who assails it. Towson v. Moore, 173...