McKay v. McKay

• Decision Date: 11 October 1916
• Docket Number: (No. 1041.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 189 S.W. 520
• Parties: McKAY v. McKAY et al.
• Court: Texas Court of Appeals

189 S.W. 520

McKAY v. McKAY et al.

(No. 1041.)^*

Court of Civil Appeals of Texas. Amarillo.

October 11, 1916.

Rehearing Denied November 22, 1916.

Appeal from District Court, Hemphill County; C. Coffee, Special Judge.

Suit by G. B. McKay and others against Alice McKay to cancel two deeds of conveyance. From a judgment canceling one of the deeds, defendant appeals. Affirmed.

H. E. Hoover and Hoover & Dial, all of Canadian, for appellant. Baker & Willis, of Canadian, for appellees.

HENDRICKS, J.

The appellees McKay, the surviving brothers and sisters of Hugh McKay, deceased, sued Alice McKay, the appellant and surviving wife of said Hugh McKay, for the purpose of canceling two certain deeds of conveyance, executed by Hugh McKay, the deceased husband, in his lifetime, to his wife, Alice McKay.

The principal grounds for cancellation of said instrument are, in substance, that, at the time of the execution of the deeds of conveyance, Hugh McKay had become so enfeebled in intellect that he did not fully comprehend the effect of the instruments so executed by him, and that in such condition his wife, Alice McKay, dominated the disposition of said property in her favor, substituting her mind for his to the extent that her acts constituted undue influence.

The trial court found, without the aid of a jury, that the property in controversy — the east one-half of section 152, block 41, H. & T. C. Ry. Co. survey, and all of section No. 151, block 41, H. & T. C. Ry. Co. survey, in Hemphill county, Tex. — constituted the separate estate of the deceased husband, Hugh McKay, at the time of the conveyance of same to his wife, Alice McKay. The court also found that on the 1st day of November, 1909, the date of the execution and delivery of the conveyance to the half section of land in controversy herein, and the first in point of time, Hugh McKay's mind was feeble to the extent that he was susceptible of being unduly influenced to "transact business matters in such manner as not to reflect his will but the will and desire of his wife, whose influence he was under"; and also found that the mind of McKay was "overcome by excessive importunity on the part of defendant, Alice McKay, and that said act and deed did not express the will and desire of said Hugh McKay, but the will of Alice McKay, and that he would not have executed the same except for the weak and feeble condition of his mind, and undue influence of Alice McKay over his will power."

The deed to section 151 (the whole section) was executed and delivered by Hugh McKay to his wife on the 12th day of September, A. D. 1910.

Contemporaneous with the execution of the last conveyance, on the 12th day of September, 1910, Hugh McKay, the husband, and Alice McKay, his wife, executed what is designated in this record as a postnuptial agreement, purporting to be a settlement and adjustment of certain property rights as well as the disturbed marital rights, between said parties.

Subsequent to the execution of the first deed to the half section above mentioned, and prior to the execution of the second deed to the whole section, and the accompanying postnuptial agreement, Hugh McKay had instituted in the district court of Hemphill county an action for divorce against his wife, Alice McKay, also praying for a cancellation of the first deed of conveyance above mentioned. In the postnuptial agreement Hugh McKay agreed to dismiss said suit and also affirmed the first deed of conveyance as valid. The postnuptial agreement also contains this provision:

"The said Alice McKay agrees to take the said Hugh McKay back as her lawful and wedded husband, and to keep and care for him through life, in sickness and in old age, and to see that his wants are provided for, and that he receives the comforts of life, in a manner in keeping with his station in life."

In said agreement it was also provided:

"That any property belonging to the separate estate of either shall not be sold or conveyed without such sale and conveyance being agreed to and joined in by both. * * *"

The particular instrument also recited that Alice McKay had provided "some means from her separate estate," which had been used for the advancement of the community estate as well as for the separate estate of her husband, and in consideration of all of said matters Hugh McKay agreed to convey to the wife, as her separate estate, all of section No. 151, above described.

The trial court found that the deed to the half section was obtained by undue influence, but concluded as to the conveyance by McKay to his wife of the whole section No. 151, subsequently executed:

"That the evidence fails to show that undue influence was brought to bear upon him to cause the execution of said deed, or that it was not his will, as expressed therein."

He, however, found additionally that Hugh McKay remained under the influence of Alice McKay from the time of the execution of the first deed, and that the ratification instrument, executed at the time of the second deed, affirming the first deed, was the expression of the will of Alice McKay, and that Hugh McKay would not have executed said instrument except for the undue influence of the wife. Judgment was rendered for Mrs. McKay for the whole section, but in favor of the heirs for the half section.

This record fails to disclose the exact age of Hugh McKay at the time of the execution of said instrument, but it is to be inferred that he was of an age between 70 and 80 at said dates. The age of the wife is not shown, nor can the same be inferred.

The principal presentation of error by the appellant, Mrs. McKay, addressed to the action of the trial court in canceling the deed to the half section, is, in effect, that there was not sufficient evidence to support the judgment so rendered. The assignment also assumes the form that such judgment is "contrary to the great preponderance of the evidence."

The attorney who represented Hugh McKay in the preparation of said instrument testified that, prior to the time of the execution of the deed, McKay solicited him to prepare the same; that he then refused to act in the matter; that subsequently McKay came to his office and informed him that Mrs. McKay, at the home, wished to see him; that, accompanied by McKay, he went to the home and in conversation with Mrs. McKay for a considerable period of time, in the presence of Mr. McKay, with reference to the instrument, she "insisted that he should make it and gave her reasons therefor." "The conversation lasted quite a while; Mrs. McKay urging him to make the deed, and Mr. McKay saying nothing. * * * He left with me, insisting that he should make the deed, saying that he would have no peace unless he did it." Another portion of this witness' testimony is as follows:

"Mr. McKay said very little. What he did say — I cannot recollect the words, * * * except that he was not consenting. * * *

At the trial, on account of the testimony of opposition witnesses, it became a controverted issue as to the condition of Hugh McKay's mind addressed to the question of feebleness of intellect, and the trial court, as stated, found as a fact that:

"Hugh McKay's mind was weak and feeble to the extent that he was susceptible of being unduly influenced to transact business in such a manner as not to reflect his will, but the will and desire of his wife."

Without reproducing the testimony, we find that the same was sufficient to raise the particular issue, though considerably mooted. It is our duty to adopt the finding of the trial judge on the issue.

However, it is insistently and forcibly urged by appellant's counsel that the case, on the facts, not being one of dementia or mental incompetency, to the extent that the instrument would be void ab initio, the testimony of Judge Baker, with reference to the conversation and manifestations in Mrs. McKay's home, coupled with the declarations of McKay, were insufficient to cancel the deed. This testimony is assailed as to its probative force, as well as to its competency.

Chief Justice Brown, in the case of Rankin v. Rankin, 105 Tex. 456, 151 S. W. 529, says that:

"The general rule on this point is thus expressed: `Where the execution of a will is proved in the mode required by law, the declarations of the testator, made before or after the execution of the instrument, are not competent to prove fraud, duress, or forgery, or to disprove the execution — they are hearsay, merely. But such declarations, made at the time the instrument was executed, are admissible as part of res gestæ. The rule upon these points is the same in the case of wills that...