McNabb v. Brewster

• Decision Date: 18 June 1954
• Docket Number: No. 8030,8030
• Citation: 272 P.2d 298,75 Idaho 313
• Parties: McNABB v. BREWSTER et al.
• Court: Idaho Supreme Court

Page 298

272 P.2d 298

75 Idaho 313

McNABB v. BREWSTER et al.

No. 8030.

Supreme Court of Idaho.

June 18, 1954.

Jones, Pomeroy & Jones, Pocatello, for McNabb.

McDevitt & McDevitt, Pocatello, for Cates and Hale.

Black, Black & Oliver, Pocatello, for Manda Brewster.

TAYLOR, Justice.

The land involved is a 160 acre farm which had been community property of John W. and Queen Wilson. Burl McNabb, tenant on the farm, filed an interpleader action to have the court determine to whom he should pay the rent. John W. Wilson died March 10, 1949, survived by his widow, Queen Wilson and two daughters, Manda Brewster and Inez Cates. Manda Brewster claims the land and rent by virtue of a deed from John and Queen Wilson. Inez Cates, Queen Wilson and the administrator of the estate of John Wilson, by cross complaint seek cancellation of the deed on the ground it was obtained by fraud and undue influence, and that the grantors were incompetent. The widow died before the trial and the administrator of her estate was made a party. Ike Brewster, a son of Manda Brewster, was the original administrator of the estate of John W. Wilson. Before trial Roy Hale was appointed in his stead and joined in the cross complaint of Inez Cates.

At the time of the execution and delivery of the deed here involved, the grantor, John W. Wilson, was 85 years of age and Queen Wilson was 89. Prior to that time they had been living in their own home at Buckskin. Mr. Wilson had been suffering for some time from an incurable cancer of the stomach. Mrs. Wilson had been sickly for a long time, at times confined to bed, periodically suffering hallucinations and at times needing personal care and assistance. Neither could read or write. Both were infirm, forgetful, childish and senile. Due to this situation, cross-complainant, Inez Cates, and her husband took up residence with the decedents during the winter of 1947-48. They left in May, 1948. The reason is not apparent, unless it be that the old people were hard to please. One neighbor said that Mr. Wilson would get 'mad' and run one daughter off and then do the same with the other. In the meantime, Mrs. Wilson's condition had become worse and Mr. Wilson was fearful that she might set fire to the house or harm herself because of her hallucinations. Following a suggestion by Mr. Burl McNabb, a neighbor and tenant, Mr. Wilson went with Mr. McNabb to Pocatello and asked the cross-defendant, Manda Brewster, to come to the home and care for him and his wife. Mrs. Brewster moved to the home in June, 1948, and began caring for the old people. On August 3, 1948, she brought them to the real estate office of Mrs. Grace Bistline, a notary public, of Pocatello, where they requested Mrs. Bistline to prepare the deed in question. The deed was prepared and executed by the grantors, in the presence of Mrs. Brewster, who at that time signed two instruments drawn by Mrs. Bistline, cross-complainant's exhibits 2 and 3A, by the terms of which she undertook and agreed to stay with them and care for them the rest of their lives. Exhibit 2, a carbon copy, is as follows:

'In consideration of real and personal property left me by my mother and father, Queen Wilson and John W. Wilson, and which is to become my personal property at and upon the death of both my parents, and not until both have passed away, I hereby consent and agree to stay with them and care for them the rest of their life in a good, kind and satisfactory manner.

'Should I fail in my obligation to both of my parents or be unable to care for them then their gift of real and personal property to me shall be null and void and they are free to distribute as they see fit.

* * *

* * *

'Received from Grace Bistline the original paper of which the above is a copy this 22nd day of March, 1949.

'/s/ Manda Brewster'

Exhibit 3A recites that 'in consideration of our daughter, Manda O. Brewster, staying with us and caring for us the rest of our days in a satisfactory way and as we have been used to living, we hereby direct that after the death of both of us all our household furniture and bedding and clothing and other personal effects be given to her as her own personal property.'

These exhibits evidence the fact that the deed was intended to have testamentary effect. As such it was ineffectual. Unless its character was changed by the subsequent delivery, it could not operate as a gift inter vivos. Zimmerman v. Fawkes, 70 Idaho 389, 219 P.2d 951.

The deed and exhibits 2 and 3A were left with Mrs. Bistline with instructions that she was not to deliver the deed to Mrs. Brewster until the grantors authorized her to do so.

Mrs. Bistline testified that Mrs. Brewster executed the original of Exhibit 2 at the time the deed was executed and that she kept it in her possession until March 22, 1949, when she delivered it to Mrs. Brewster and took her receipt therefor. Mrs. Brewster at first denied receiving the original, although she acknowledged her signature on the receipt for it, and then said she didn't remember such a paper, and did not have it. When the exhibit was offered in evidence, the objection that it was not acknowledged, not authorized or signed by the Wilsons, and that it was an attempt to vary the terms of the deed, was sustained. This ruling was clearly error. The consideration recited in the deed is 'love and affection and other valuable consideration.' When the consideration for a deed is material to the issues, evidence thereof is admissible. 26 C.J.S., Deeds, § 199; 16 Am.Jur., Deeds, §§ 433, 436, 437. In such a case, evidence of an oral agreement as to the consideration may be shown. In De Atley v. Streit, 81 Mont. 382, 263 P. 967, the Montana court said:

'* * * appellants have argued in their brief that the introduction of oral proof of the agreement of the defendants to support and maintain the plaintiffs was not permissible under the Statute of Frauds * * *. The purpose of introducing the testimony to which reference is made was not to change or vary the terms of the deeds, but only to show what was the actual consideration for them.' 263 P. at page 971.

See, also, annotation in 112 A.L.R. at 695.

Two of the neighbors, Murl McNabb and Arlene McNabb, testified that Mrs. Brewster told them in July when she came to Buckskin, that she was going to get the land for taking care of her folks, that she wasn't going to do it for nothing. Thus, she expressed her plan. So the evidence is quite conclusive that the deed was not given for love and affection alone. The question of consideration became important to the determination of the ultimate question of fairness and good faith, and the presence or absence of fraud or undue influence, on the part of the grantee.

The allegations of the answer and cross complaint, as amended, put in issue the failure of consideration. The evidence is sufficient to justify cancellation of the deed on the ground of Mrs. Brewster's neglect and refusal to care for the decedents. Caramini v. Tegulias, 121 Conn. 548, 186 A. 482, 112 A.L.R. 666, and exhaustive note 670 at 676 et seq.; 26 C.J.S., Deeds, §§ 148 and 153; Gustin v. Crockett, 51 Wash. 67, 97 P. 1091; Hesselgrave v. Mott, 23 Wash.2d 270, 160 P.2d 521. Admittedly the property conveyed was worth $10,600 and constituted practically the entire estate of the grantors. The conveyance left them paupers without means of support, and disinherited their other daughter, Inez Cates. When Queen Wilson became so ill that the doctor recommended hospitalization, Manda Brewster refused on the ground that Queen had no money, and Manda could not afford it. The doctor arranged for her to be admitted as a county patient, and the county paid her bill.

On August 2, 1950, Mrs. Brewster's son, Grant Brewster, made an affidavit before the probate judge of Bannock County, averring, under oath, that he made the affidavit for the purpose of obtaining indigent aid from Bannock County for Queen Wilson; that Queen Wilson had no income and no property; that Inez Cates, a daughter, was employed; and answered 'yes' to the question contained in the form as to whether or not any property had been transferred during the last two years, and in the space provided for particulars, inserted 'Sold to Steve Miller.' It appears from the record that thirty acres of land was sold to Steve Miller in 1947, and that a balance due of $719.23 still owing by Miller to Wilsons on that transaction was all of the estate left to the Wilsons after the conveyance to Manda Brewster. It is significant that Grant Brewster concealed from the probate judge of Bannock County the fact that property of the value of $10,600 had been conveyed by Mrs. Wilson and her husband to Grant's mother within two years of the making of the affidavit. Grant Brewster is the son who took his mother in his car to the office of Mrs. Bistline on January 13, 1949, to get the deed, and from there, 'I took her right straight to the court house.' He also testified that he did not stop anywhere and make any alteration on any instrument his mother had in the envelope she obtained at Mrs. Bistline's office. He had already testified that he accompanied his mother to the bedside of his grandfather in the hospital on January 13th, before driving her to Mrs. Bistline's and then to the court house, and that he was present in the room when his mother talked to his grandfather. It was on this occasion that Mrs. Brewster testified her father asked her if she had had the deed recorded. Although neither she nor her son Grant were permitted to relate the conversation, they both sought to convey the idea that they went to Mrs. Bistline's for the deed at Mr. Wilson's direction. It would be absurd to suggest that at the time he made the affidavit before the probate judge, Grant Brewster did not know of the transfer of his grandparents' entire estate to his mother. Moreover, this affidavit was no doubt made with the knowledge and acquiescence of Manda Brewster. It was a...