Lynch v. Doran

• Decision Date: 21 April 1893
• Court: Michigan Supreme Court
• Parties: LYNCH et al. v. DORAN et al.

54 N.W. 882

95 Mich. 395

LYNCH et al. v. DORAN et al.

Supreme Court of Michigan

April 21, 1893

Error to circuit court, Wayne county; George Gartner, Judge.

Ejectment by Catherine Lynch, Margeret Doyle, Mary A. McGrane, Edward Doran, and John Doran against James Doran, Eliza Doran, and Jane Doran. Defendants had judgment, and plaintiffs bring error. Affirmed.

Edwin F. Conely and Orla B. Taylor, for appellants.

John Atkinson, for appellees.

GRANT J.

Plaintiffs and defendants are the heirs at law of John Doran and Mary Doran, all being their children except John who is a grandson, his father being dead. John Doran, the father, died March 28, 1882, ninety-three years old. His widow, Mary, died in 1885, aged about 80. Mr. Doran purchased the land in controversy-19 acres-in 1836. It was a farm, and occupied as a homestead till the time of his death. Soon after, the defendants moved to Detroit, taking their mother with them. April 17, 1879, Mr. Doran executed a deed of this land to his wife. About two weeks after, she executed a deed of it to the defendants. They had 10 children, two of whom Patrick, the father of plaintiff John, died in 1855, and John in 1860, without issue. Catherine married, and left home in 1849, Patrick in 1855, Margeret in 1849, Mary in 1852, Anne in 1860, and Edward left home in 1870, and was married some years afterwards. James, Eliza, and Jane were never married. James and Jane lived at home. Eliza worked in Detroit, but spent considerable of her time at home. She took care of her father during his last sickness. Jane did the household work and James worked and managed the farm. They all lived together as one family. For about 20 years previous to his death the father did such work as he chose, and as was consistent with his age and strength. None of the children after leaving home, contributed anything to the support of their parents. The defendants also paid their father's funeral expenses, borrowing the money from Mary, which they repaid with interest. The parents were taken care of and supported by the defendants. The relations between the parents and children were pleasant and friendly, as were also the relations of the children to each other. The married children lived in Detroit, and there was the usual amount of visiting to and fro.

On January 17, 1887, plaintiffs commenced this suit to recover the undivided five ninths of this land on the ground of the incompetency of Mr. Doran to execute the deed. At the conclusion of the evidence the court directed a verdict for the defendants, holding that the plaintiffs had introduced no evidence tending to show incompetency.

This small piece of land comprised his entire estate, and at the time of the deed was worth about $2,500. He was considerably affected by the death of his two sons, and especially mourned the loss of John. Soon after John's death he had a severe fit of sickness, and plaintiffs claim that his mental decay commenced at that time. He was then 71 years old, and up to that time was strong, both physically and mentally.

His daughter Margeret testified that after this sickness he lost his memory. That condition continued right along. That when she met him he did not know her and her sister Eliza apart. That once when she went there she said, "Good morning." He replied, "Good morning, Eliza." She said, "I am Margeret." He replied, "Well, it is all the same." That once when he was at her house he said to her, "Eliza, I would like to treat all my family alike if I had my own way." She could give no other instances similar to these. That during the last few years of his life he used to sleep about noontime, and then get up and walk around, or sit in the house, maybe go after the cows, or something like that. She once saw him crying. She asked him what was the matter, and he made no reply. She saw nothing else in his conduct that was strange except that he sometimes seemed low-spirited, and would sit all day without talking to any one except when they spoke to him, when he would answer them. That he used to come to her house in Detroit once in two or three weeks. That he went to Trinity church about once a year.

That he lost his way one night, coming from the church, and looking for her house. That he then said he was looking for Trinity church, but could not find it. This occurred many years previous to his death. That he was brought to her house twice afterwards, when he lost his way in the city. This witness was then asked to give her opinion as to whether he was of sound mind from the time of his sickness. This testimony was excluded.

Albert Messmore lived about half a mile from Mr. Doran for many years before his death, except that occasionally he lived a year or more in the city. He testified that he was quite intimate with the family. That he visited there evenings, and sometimes in the daytime. That he was in a pretty fair condition physically. That he made no pretensions to carry on the farm for the last 25 or 30 years of his life. That he never saw him doing anything, except with a spade letting water off the field, or something of that kind. That he supposed the reason he did not work was old age. That he had often met him on the road, when sometimes he would know him and sometimes he would not. That if he spoke to him, and talked to him a while, he would know him. That when he met him he would generally say, "Good morning, Mr. Doran." That Mr. Doran would come up to him, and shake hands, but would not appear to know him. That when he told him who he was he would know him. He would say, "Is it Ab.?" Mr. Doran used to call him Ab. That he had met Mr. Doran upon the road, when he asked him the way to go home. He would say: "I am turned around. I do not know which way it is." That he was then about half a mile from his house, which was not in sight. That he remembered particularly only two or three such instances. That the last one he remembered was in the neighborhood of 10 years before his death. That when he went there evenings Mr. Doran was generally in bed. That when he went there daytimes he was walking around, or in the house reading. That about 10 years before his death he met Mr. Doran looking after the cows, which then ran at large, and asked him if he had seen them. That he was about the same ever since witness could remember. On cross-examination the witness testified that he might have met him two or three times when he failed to recognize him. He (witness) was then about 21 years old. That he (witness) had been away from home a little while before that. That Mr. Doran remembered him all right when he told him he was Ab. On redirect examination he testified that sometimes Mr. Doran would know him and sometimes he would not. This witness was asked whether he considered Mr. Doran, on the 17th of April, 1879, in such a condition mentally that he would comprehend the matter of the disposition or deeding away of his property, but the question was excluded as incompetent.

Mary testified that she left home when 16 years old. That she went home once in a month or two. She lived in Detroit. Her father's health was pretty good. That he was troubled with dizziness in his head That he lost his memory, and could not recognize her very well. That when she told him who she was he would recognize her. That once when he visited her in Detroit, when he was about 80 years old, he bade her good-bye, crying, and said perhaps he would not see her again. She made no reply to this. He went right away, and walked home, a distance of over four miles. She gave one instance of dizziness which occurred at the beginning of his sickness after John's death. Plaintiff's counsel asked her the following question: "Question. Did you ever have any conversation with him, or was he ever talking with you, when his talk or conversation or language made you think that he did not know what he was talking about, or that his memory was failing? Answer. No, sir; not as I remember." She testified that he did chores around the farm. On the cross-examination she said, "My memory is awfully poor." She was then 60 years old. She could not remember a single irrational thing that her father ever said, and she never asked him a question to which he did not make an intelligent answer.

Edward Doran testified that his father's health was good enough. That he once had a spell of sickness, and he thought he was a little weak-minded. That the basis of this opinion was that sometimes he saw him crying, at other times he would be singing,-just humming over something. That he would go away somewhere, and get astray. That he sometimes went after him and found him a mile or a mile and a half from the house. That he sometimes told him he was sent after him, when he became pretty cross, and once was going to slap him for coming after him. That he did chores around the house. Had dizzy spells, but could not say how frequently. That at different times he cried, and told him and his brother James to go on and do the best they could; that pretty soon they would not have anybody to watch over them. He was better at times. He had no conversation with him which indicated a loss of memory. He met his father once in Detroit, on Grand River avenue, in the company of two young men. He said he was going with these boys. He told him he had better come with him, which he did. The boys said they were going to have some fun with him; that they thought he was simple or drunk. This was 20 years or more before he died. That once he went to Trinity Church with him, on Sixth street. On coming out of the church they got separated, and he found him down around Ninth street. He asked him where he was going, and he said he was going home. Witness replied, "If you are, you would better turn around,...