Mullens v. Lilly
| Decision Date | 15 March 1941 |
| Docket Number | 9119. |
| Parties | MULLENS et al. v. LILLY et al. |
| Court | West Virginia Supreme Court |
[Copyrighted Material Omitted]
File, Scherer & File, of Beckley, and Bailey & Shannon, of Pineville, for appellants.
Sanders & Day, of Bluefield, Walter G. Burton, of Princeton, and William M. Holroyd, of Mullens, for appellees.
This suit in equity was instituted in the Circuit Court of Wyoming Co unty by W. F. Mullens and others heirs-at-law of A. J. Mullens, deceased, and Hattie Mullens his widow, against Nora Lilly, also an heir-at-law, and H. E. Lilly, her husband, Estil A. Lilly and D. Forrest Lilly, their sons, Estil A. Lilly, executor of the last will and testament of A. J. Mullens, deceased, M. H. Lusk, trustee, and Peoples Bank of Mullens, for the dual purpose of (1) cancelling and annulling certain deeds on the ground that they were procured from the grantor, A. J. Mullens, without consideration, by fraud and undue influence at a time when he was physically infirm and mentally incapable of understanding the nature and effect of said deeds; and (2) setting aside the purported last will and testament of decedent, executed on May 3, 1937, and probated in the County Court Clerk's office of Wyoming County. This appeal is prosecuted from a final decree setting aside the deeds, making reference to a commissioner for determination of certain adjustments between the defendants and the estate of A. J. Mullens, and decreeing judgment against the defendant, H. E. Lilly, in favor of the Mullens estate in the amount of $2,088.46, with interest.
The proper names "Mullens" and "Mullins" are interchangeably used in the record to describe the decedent and litigants. We shall follow the original and amended bills and the final decree and use the spelling "Mullens."
Plaintiffs, being required by the court to elect between the contest of the will and the attack on the deeds, proceeded with that part of the case having to do with the cancellation and annulment of the deeds; the bill being dismissed as to the other relief sought.
The court, after consideration of supporting and opposing affidavits, directed an issue out of chancery, on plaintiffs' motion on the questions: (1) Whether the deeds sought to be set aside, or any of them, were obtained from A. J. Mullens by means of fraud or undue influence; and (2) whether at the several times these deeds were executed, A. J. Mullens by reason of his mental condition was incapable of clearly understanding and appreciating the nature and effect of said deeds.
Trial of the issue having been had, the jury returned the verdict thereon: "We, the jury, find and agree to a verdict in favor of plaintiff." The court refused to accept this verdict and on plaintiffs' motion submitted to the jury the following interrogatories: "First: Whether the deeds involved in this case, or any of them, were obtained from A. J. Mullens by means of fraud or undue influence, and if you find any of the deeds were obtained by fraud or undue influence, which of the deeds were so obtained by such means"; and "Second: Whether on the dates of the execution of said deeds, A. J. Mullens was mentally capable of clearly understanding and appreciating the nature and effect of said deeds, and if you find that A. J. Mullens was not mentally capable of clearly understanding the nature and effect of any such deeds, which of such deeds were executed while he was mentally incapable of clearly understanding the nature and effect of such deeds." The jury found: "We, the jury, find that all twelve deeds in question were obtained by fraud or undue influence." (Italics supplied). Though the jury did not retire from the court room to consider further its finding on the first interrogatory, plaintiffs' counsel submitted a proposed amended verdict, which was signed by the foreman in open court, to the effect that the eleven deeds under attack on the issue out of chancery were obtained from A. J. Mullens, deceased, by means of undue influence. The decree complained of approved the jury verdict, set aside separately the deeds on the grounds of both undue influence and lack of mental capacity, decreed judgment in favor of decedent's estate against defendant, H. E. Lilly, in the amount of $2,088.46, and referred the cause to a commissioner to determine taxes paid and improvements made by defendants.
The record is voluminous. It is composed of nearly thirteen hundred printed pages, embraces the testimony of many witnesses and embodies numerous pleadings, decrees, affidavits and exhibits. It would not be useful to detail the many facts and circumstances portrayed by this record.
Decedent died on February 26, 1938, at the age of eighty-one, survived by Howard Mullens, Van B. Mullens, W. F. Mullens, Susie Mullens Workman, Mary Mullens Phillips, Nora Lilly, and Eliza Mullens Nichols, children of A. J. Mullens, George Arnold Cook, Annie Cook Campbell and Ethel Dillon, children of a deceased daughter, Hannah Mullens Cook, Hattie Mullens and R. R. Mullens, children of another deceased daughter, Martha Mullens, and Harriet Mullens, his widow, all of whom are plaintiffs herein, except the defendant, Nora Lilly. The defendant H. E. Lilly is the husband of Nora Lilly, and the defendants Estil A. Lilly and D. Forrest Lilly are their children.
Between September 2, 1933, and August 1, 1936, A. J. Mullens made the following deeds, in several of which Harriet Mullens, his wife, joined: (1) Three deeds to Nora Lilly, dated September 2, 1933, February 20, 1935, and October 14, 1935; (2) three deeds to H. E. Lilly, dated March 14, 1935, January 17, 1935, and May 11, 1936; (3) four deeds to Estil Lilly, dated October 27, 1934, February 23, 1935, July 29, 1935, and August 1, 1936; and (4) one deed to D. Forrest Lilly, dated March 5, 1935. These are the conveyances set aside by the trial court.
A. J. Mullens was a respected and outstanding citizen of the community in which he lived. He was the founder of the Town of Mullens, and through its development, which began with the building of the Virginian Railway Company's tracks through his farm, accumulated considerable property. Evidently he was kind and generous to his family. Besides the property which he conveyed to the Lillys, he made a number of conveyances of valuable property to his other children and grandchildren, extending over a period of many years. He took a wide interest in civic, religious and business affairs. He had been a justice of the peace, a member of the West Virginia Legislature, one of the founders, vice president and a director of the Peoples Bank of Mullens, an extensive dealer in real property, the operator of a grist mill, and a minister and benefactor of the Primitive Baptist Church, of which during a long lifetime he had been a constant and faithful member.
The trial court having decreed the invalidity of the deeds under both the issue of undue influence and mental capacity, it is necessary for us to discuss the parts of the record bearing on both issues. Though it is difficult to conceive of undue influence being used on a person to compel an act of which he is mentally incapable of performing, it is a matter of common experience, as shown by the decided cases, that less influence is required to compel an act by a person of retarded or diminished intellect than in the case of one of strong intellect. Ebert v. Ebert, 120 W.Va. 722, 200 S.E. 831; Freeman v. Freeman, 71 W.Va. 303, 76 S.E. 657; Black v. Post, 67 W.Va. 253, 67 S.E. 1072; Coffman v. Hedrick, 32 W.Va. 119, 9 S.E. 65. With this general view in mind, let us first review the evidence bearing upon decedent's mental capacity.
In the first place the fact that decedent made the conveyances in question, though some were made without consideration and others upon a claimed inadequate consideration, is by no means decisive of his lack of mental capacity.
We are mindful that he was an old man at the time these conveyances were made, but he was of fine character and generous disposition toward his church and the members of his family. He was a great patriarch in every sense of the word, and his many conveyances to his children and grandchildren, including those to the Lillys, have of themselves no strong evidentiary value as showing decedent's lack of mental capacity. These conveyances, in the absence of undue influence and lack of sufficient mental capacity, simply indicate his generous spirit and love for family.
Plaintiffs' counsel say that because the decedent made a will on March 3, 1937, whereby, after making bequests of one dollar each to two sons and two granddaughters, he devised and bequeathed the residue of his estate in seven equal parts to certain named children and grandchildren, at a time when he had already disposed of most of his property, is evidence that he did not, in fact, know what property he had. Reliance is had upon the fact that on February 26, 1938, at the time of his death, his estate had an appraised value of only $837.89. True, he had relinquished most of his property at the time he made this will. Nevertheless, besides the interest which he retained in some of the property which he had conveyed, he had property available for testamentary disposition: sixty shares of the stock of Peoples Bank of Mullens, with a book value of $150 a share, and a total value of $9,000; a farm of forty acres which he later conveyed to Roy Phillips, a son of the plaintiff, Mary Phillips, in trust for Paul Phillips and the members of the Phillips family; and a note of the Nicklet Coal Company for $4,255.55, of uncertain value. In addition decedent gave to H. E. Lilly a check for $550, dated February 8, 1938 (about the time he went to the hospital), which plaintiffs' ...
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