McCutcheon v. Bichon

• Decision Date: 12 March 1937
• Citation: 267 Ky. 694
• Parties: McCutcheon v. Bichon et al.
• Court: United States State Supreme Court — District of Kentucky

Page 694

267 Ky. 694

McCutcheon v. Bichon et al.

Court of Appeals of Kentucky.

Decided March 12, 1937.

1. Deeds. — That 57-acre tract deeded to grantor's son was of greater value than 150-acre tract retained by grantor did not authorize cancellation of deed at suit of grantor's other children, but would merely be considered with other circumstances to determine whether deed should be canceled.

2. Deeds. — Person who is mentally capable and understands nature of his acts may, in absence of showing of fraud or undue influence, convey his property for less than its value, or give it to a relative.

3. Deeds. — As respects deed, agreement to support one for life is valid consideration.

4. Deeds. — Son who lived with and cared for father had burden of establishing good faith of deed from father.

5. Deeds. — As respects deed, evidence showing nothing more than opportunity to exercise undue influence is insufficient to justify holding that undue influence was actually exercised.

6. Deeds. — As respects cancellation of deed for undue influence, it is necessary to show that such influence was actually exercised, by evidence which is substantial, and not vague, uncertain, or irrelevant matter which does not carry quality of proof or is not of such character as to induce conviction.

7. Deeds. — Evidence of undue influence of son who lived with and cared for father, aged 81 or 82, in procuring deed in consideration for agreement to continue to care for father and to recompense son for past care of parents held insufficient to support judgment canceling deed.

8. Evidence. — Evidence of laymen on question of mental incapacity is to be limited to acts and circumstances, for question of quality of mind is one peculiarly directed to medical profession.

9. Deeds. — Evidence of mental incapacity of father, aged 81 or 82, on execution of deed to son who lived with and cared for father, in consideration for agreement to continue to care for father, and to recompense son for past care of parents, showing merely that father was old and infirm, to some extent forgetful, and was living somewhat in past, held insufficient to authorize cancellation of deed.

10. Deeds. — Deed which is testamentary in character is not required to be sustained by as high degree of proof as deed made in business transaction and involving aspect of a trade.

11. Deeds. — Less proof of mentality is required where conveyance is a gift, as distinguished from trade or sale, and deed will generally be sustained unless it is clearly shown that imposition on grantor has been practiced.

12. Deeds. — Where it is sought to set aside deed on ground of mental

incapacity, it is insufficient to show that grantor's powers of mind and body were impaired by age, but there must be evidence from which it appears infirmity of mind was so great as to render grantor incapable of knowing or understanding nature, meaning, and consequence of transaction.

13. Deeds. — Liberality will be exercised in upholding conveyances from parents to children in consideration for care of parents, where evidence does not clearly show undue influence or incapacity.

14. Deeds. — Evidence must be strong and convincing to set aside deed on ground of incapacity.

15. Appeal and Error. — When evidence is such that mind is left in doubt, chancellor's judgment on conflicting evidence is not disturbed, but if clear conviction results that judgment was erroneous, Court of Appeals enters judgment that should have been entered.

Appeal from McCracken Circuit Court.

W.A. BERRY for appellant.

EATON & BOYD for appellees.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Reversing.

On June 27, 1934, appellees filed their petition in equity naming appellant as defendant. The appellant and appellees John, William, and Mrs. Gertrude McCutcheon Bichon are the children of William McCutcheon. Charles Bichon sues as the committee for Wm. T. McCutcheon, described as being enfeebled mentally and physically to such an extent that he was incapable of exercising his will or of forming a deliberate judgment. It is alleged that prior to May 1, 1934, Wm. McCutcheon owned his home, consisting of certain parcels of land comprising about 57 acres described, and also another tract of land situated in McCracken county containing about 150 acres.

It is alleged that for sixteen years prior to the institution of the suit Wm. T. McCutcheon has resided in the home "and permitted his son Charles E. McCutcheon to reside there with him, and that by reason of this close relationship and association, the enfeebled condition of his father, the son, a strong and active young man, gained and exercised undue control over his father to the extent that without consideration and with the intent to defraud, he, on May 1, 1934 procured the father to execute to him a deed to the home place." Cancellation of the deed was sought.

Appellant denied all the allegations of the petition and pleaded affirmatively that he had lived all his lifetime with his father and mother; that during these times he had "protected them, took care of and looked after them"; that after his mother's death he remained with his father, taking care of him and rendering every possible service for his comfort, convenience, and welfare. He contends that the conveyance above mentioned was the free and voluntary act of his father, based on consideration, in that it was made because of the attentive service rendered, and that at the time of making the deed the father was mentally competent.

The allegations of the answer were denied by reply, with some affirmative matter which does not affect the issue. The reply was controverted of record. The issues being joined, proof was taken and on submission it was adjudged that on the 1st day of May, 1934, Wm. T. McCutcheon was not mentally capable of making a deed, and that it had been "procured * * * by the exercise of undue influence." The court ordered the deed canceled. From that order, this appeal is prosecuted.

The appellant contends that the court was in error in thus decreeing, because the proof shows that the grantor at the time of the execution of the deed was of sufficient mental capacity to realize the effect of his act; that no undue influence was exercised by grantee over the grantor, and there was an expressed preconceived purpose or intent to convey, and ample consideration therefor.

The contrary is vigorously argued by appellees. Each party invokes certain rules of law and equity. Appellant urges that the cancellation of an executed contract of such a solemn nature demands the exercise of extraordinary power, and ought not to be decreed except in a clear case where fraud is clearly proven; that the chancellor below erroneously held the proof to justify the cancellation of the deed on grounds of undue influence. Appellees invoke another rule, to the effect that where parties to a contract occupy close relationship toward each other, the courts will view a transaction between them with some degree of suspicion; that the general rule is changed and the burden of establishing the good faith of the questioned transaction falls upon the one seeking to uphold the contract.

The deed in question was executed May 1, 1934 about the middle of June of the same year Wm. T. McCutcheon was found to be mentally incompetent by a court proceeding. At the time of the conveyance the father was about eighty-one or two years of age, and the son Charles about thirty-five. Mr. McCutcheon's wife had died in 1918. She was an invalid during the latter years of her life. Mr. McCutcheon's children, except Charles, had married early in life and made homes for themselves in the neighborhood. They had at all times shown considerable interest in their father, giving him such attention as would naturally be expected from children. This is particularly true of the daughter. Prior to the execution of the deed, there was no showing of ill feeling between the members of the family. Any ill feeling, and there is evidence of such, developed after the execution of the deed, seemingly based on what they term the "unfairness" of the effect of the conveyance.

In addition to the approximately 57 acres of the home place conveyed to appellant, the father owned about 150 acres of farming land in the same county, not far distant from the home place. As to the relative values, there is considerable difference of opinion, and the proof is not as full as it might have been. It may be said, however, that there is no argument but that the home place is by far the most valuable of the two tracts. The question of the equity here, in so far as value is concerned, need not be considered except as bearing on the main question. We have frequently held that a person who is mentally capable, and understands the nature of his act, may, in the absence of a showing of fraud or undue influence, convey his property for less than it is worth or may give his property to a relative. Risner v. Risner, 261 Ky. 359, 87 S.W. (2d) 970. We have also held that an agreement to support one for life is a valid consideration. Combs v. Bowen, 255 Ky. 802, 75 S.W. (2d) 513; Tunks v. Vincent, 241 Ky. 379, 44 S.W. (2d) 282.

The record also shows, if that fact be pertinent, that upon the death of the mother in 1918 the father proposed an amicable division of her property, which in part consisted of some real estate. This proposal was carried out by each taking a portion of the real estate and agreeing to pay the father a certain sum each year, evidently in lieu of his courtesy. As far as the record shows, the plan has been adhered to. In this division appellant received a small tract adjacent to the "home place," and the others likewise received small tracts.

Taking up the proof, under the assumption that appellant had the burden of showing that the transaction was fairly consummated, we shall review to some extent the evidence brought out by appellant. Omitting as far as possible...