Norman v. Norman, 19115

• Decision Date: 03 October 1960
• Docket Number: No. 1,No. 19115,19115,1
• Citation: 131 Ind.App. 67,169 N.E.2d 414
• Parties: Elizabeth H. NORMAN, Appellant, v. Alta NORMAN, Appellee
• Court: Indiana Appellate Court

Page 414

169 N.E.2d 414

131 Ind.App. 67

Elizabeth H. NORMAN, Appellant, v. Alta NORMAN, Appellee.

No. 19115.

Appellate Court of Indiana, Division No. 1.

Oct. 3, 1960.

Smith & Smith, Knox, Albert B. Chipman, Plymouth, for appellant.

Paul E. Reed, Knox, Alban M. Smith, La Porte, for appellee.

MYERS, Judge.

This is an action brought by appellant, Elizabeth H. Norman, plaintiff below, for partition of real estate in Starke and La Porte Counties in the State of Indiana. She claimed to be the owner of an undivided two-thirds thereof, stating that appellee, Alta Norman, defendant below, was the owner of the remaining undivided one-third.

Appellee filed a cross-complaint in which she alleged that she was the widow and sole heir at law of Aaron Norman, who died the owner in fee simple of said real estate, and that on his death she became the owner of the entire property. She asked to have her title quieted.

By way of a second paragraph of answer to appellee's cross-complaint, appellant claimed title to the undivided two-thirds by virtue of certain deeds which she declared were executed by Aaron and delivered to her during his lifetime, together with a letter from him wherein he stated that the deeds were a gift to appellant subject to his wife's (appellee's) statutory one-third upon his death, and also subject to a life estate to be reserved in him. Appellant asked that her title be quieted. Appellee filed a reply to this second paragraph of answer in general denial, anmitting, however, that Aaron Norman had possession of the real estate from the date of the alleged deeds until his death.

The issues being thus formed, a trial by jury was had and a verdict returned in favor of appellee on her cross-complaint against appellant. Appellee moved for judgment on the verdict, and judgment was entered in accordance therewith. Appellant filed her motion for a new trial, which was overruled, and this appeal followed.

Appellant's only assignment of error was that of overruling the motion for a new trial. In that motion it was urged that the court had erred on the grounds that the verdict was not sustained by sufficient evidence; that the verdict was contrary to law; that errors of law occurred at the trial in that incompetent evidence was permitted to go to the jury; that the trial court erred in refusing to give the jury certain of appellant's tendered instructions.

Appellee contended at the trial that when the deeds were executed by Aaron Norman (1) he was of unsound mind; (2) he was subject to undue influence; and (3) there was an uncompleted gift. Appellant claims that there was no evidence of probative value to prove these contentions, and that there was error at law in the court's refusal to withdraw from the jury these respective issues.

The evidence most favorable to appellee as revealed by the record shows that Alta and Aaron Norman were married in 1918. They lived together as husband and wife until the date of his death, being November 18, 1955. No children were born to them. They resided on and farmed about 235 acres of land in Starke and La Porte Counties near the town of Hamlet, Indiana, which land is the subject-matter of this lawsuit. Aaron held title to it in his own name prior to and during his marriage. It was not held by them as tenants by the entireties.

Appellant, Elizabeth H. Norman, was Aaron's sister, who lived in Chicago at the time the events took place in this cause. They were members of a family of eight children and had known poverty in their youth. Aaron never went to school beyond the fourth grade. Elizabeth went through grammar school and started high school. Then she took a secretarial course in a Business College in South Bend. From there she took a position as secretary to a Chicago firm and later as private secretary to a mortgage banker, who died in 1934. She remained in his office as the executive in charge of the business, and was in such capacity at the time of this trial. Apparently she was quite successful as a business woman. She testified that she owned over one hundred acres of land in Indiana, an apartment building and house in Chicago, $6,500 in cash, $2,500 in government bonds, and $50,000 in notes. In 1951 she stated that she was probably worth $160,000, and received income, after taxes, of about $12,000. She and her brother Aaron saw each other and exchanged letters throughout the years. Usually she came down from Chicago to visit him and perhaps stay over night at his home. She said that Aaron had confidence in her and that they were a 'closely knit family.'

According to the testimony of his wife, some friends and neighbors, Aaron 'began to change,' beginning in 1939. He would not go into town by himself on the usual household and farm matters. He began acting suspicious of all people, including friends and neighbors, staying away from them or cursing them if he had occasion to meet them. He was afraid that he was going to be poisoned by gas from small tear-gas fountain pens, which he believed certain persons carried. He went into detail how they could poison him in such fashion. Starting in 1940, he wrote on sheets of paper lists of names or descriptions of people he knew or had done business with who he claimed were trying to poison him. These lists were in his handwriting. After each name he had written a number, varying between one and twelve. At the bottom of each sheet he placed the number of names written down and added the numbers after each name. For example, one sheet summed up as follows: '18 men 38 times'; another was: '18 men 55 times'; another read: '9 men 15 times.' A fourth sheet had written on the bottom: 'this is the names of the men that use the poison on me.' Some of the men named therein testified at the trial. All denied any attempts at poisoning or harming Aaron in any way.

Alta, his wife, testified that during 1940 he moved out of their bedroom and began sleeping on the davenport. Thereafter he would get up during the night and come into the bedroom where he would curse and threaten her. He often whispered to her, telling her that microphones had been planted in the house and that people were listening to him. He believed that airplanes flying overhead were attempts to gas him.

At length he would not go out into the fields with his tractor unless Alta was with him. He often wore a respirator on his face when working around the farm, although there was no dust or evidence that he had hay fever. This was a plastic disk with a filter inside which fitted over his nose and mouth and was held in place by elastic. Alta stated that he wore it places where he feared he would be shot with gas.

On November 10, 1942, Elizabeth came down from Chicago and stayed over night at Aaron's house. Elizabeth testified that previously thereto, Aaron had talked to her about getting his affairs settled; that he wanted to give her everything he had, including all his real and personal property except a one-third interest which he wanted to go to his wife at his death; that he wanted to reserve a life estate in the real property for himself; that some time in October, 1942, she had come down and obtained his deeds and abstracts of title to all his property; that she took these back to Chicago with her and sent them to abstracters for title search.

On November 11, 1942, Aaron and Elizabeth drove to Chicago, where they went to the offices of a Chicago law firm which had performed legal services for Elizabeth. One of the lawyers there had prepared a trust agreement concerning all his property. Aaron refused to sign it. Three warranty deeds were then prepared for the real property here involved. By these deeds Aaron conveyed his fee-simple title to Elizabeth outright without any reservation. A bill of sale was also drawn pertaining to all crops, livestock, farm equipment and tools of which he was possessed. They were purportedly sold to Elizabeth for a consideration of $10. The warranty deeds each recited a consideration of $10 and other valuable consideration. Aaron signed the deeds and bill of sale and handed them over to Elizabeth in the attorney's office.

At the same time these events took place, two letters were dictated by the attorney. One was addressed to Elizabeth from Aaron and reads as follows:

'Chicago, Illinois,

November 11, 1942

'Miss Elizabeth H. Norman,

'11 S. LaSalle Street, Room 1917,

'Chicago, Illinois.

'Dear Elizabeth:

'I hand you herewith three Warranty Deeds of even date to all of my farm property in Starke County and Laporte County, Indiana, comprisong approximately 234 acres.

'This is pursuant to many months of consideration by me and it is intended as an outright gift to you. I have been advised by James Deming, an attorney, that under the laws of Indiana, my wife, Alta Norman, will receive one-third of the property conveyed as aforesaid upon my death. It is my desire that my wife do receive one-third of said property in fee upon my death. The intention being that you are to receive two-thirds of all my real estate. I also hand you herewith bill of sale of even date hereof conveying all of the cattle, grains and miscellenous personal property now located on my farm. This is considered the same as the real estate, to wit: an outright gift to you.

'It is my wish that in the event that I die prior to my wife you cause to be transferred to her one- third of the personal property described in said bill of sale.

'Aron Norman

'Aaron Norman'

The other letter was addressed to Aaron from Elizabeth and reads as follows:

'Chicago, Illinois,

November 11, 1942.

'Mr. Aaron Norman,

'Hamlet, Indiana

'Dear Aaron:

'I acknowledge receipt of the three warranty deeds of even date to all of your farm property located in Starke County and LaPorte County, Indiana, consisting of 234 acres together with bill of sale conveying all of the cattle, grains and miscellaneous personal property now located on the farm, for which I thank you.

'These deeds will be...