Price's Ex'r v. Barham

• Decision Date: 17 March 1927
• Citation: 137 S.E. 511
• Court: Virginia Supreme Court
• Parties: PRICE'S EX'R. v. BARHAM

137 S.E. 511

PRICE'S EX'R.

v.BARHAM

Supreme Court of Appeals of Virginia.

March 17, 1927.

Appeal from Circuit Court, Surry County.

Suit by Leonard Boothe, as executor of the estate of T. G. Price, deceased, against J. I. Barham. Decree for defendant, and complainant appeals. Affirmed.

Frank P. Pulley, Jr., of Waverly, and Junius W. Pulley, of Courtland, for appellant.

T. N. Crymes, of Surry, Robt. W. Arnold, of Waverly, C. E. Holladay, of Dendron, for appellee.

BURKS, J. This was a suit to set aside a contract on account of mental incapacity and undue influence. We have decided so many cases involving these questions that the law of the subject is well settled in this jurisdiction, and there is no occasion to consider cases decided by other courts. Owing to the difference in the facts, one case affords but little aid in arriving at a correct conclusion in another. Each case must be decided upon its own facts and circumstances.

While evidence of mental incapacity shortly before or after the principal event is admissible because it throws light on the probable mental condition at the time of such event, still the crucial time at which capacity must exist is the time of the factum —the time at which the act complained of was done. If mental capacity at that time is satisfactorily shown, it is immaterial what the capacity was before or after that time. In the determination of that question, however, the same weight is not attached to the testimony of all classes of witnesses. The testimony of attesting witnesses to documents and of others present at their execution is entitled to peculiar weight.¹ Physicians also, it is held, occupy a high grade on the question of mental capacity, both because they are generally men of cultivated minds and observation, and are supposed to have turned their attention to such subjects, and because they are able to discriminate more accurately than lay witnesses, and this is especially true of a family physician, who has attended the patient through the disease which is supposed to have disabled his mind.² On the other hand, the testimony of lay witnesses as to the sanity of a person is dependent upon their capacity to judge and their opportunity for making observations. When they have made such observations, they may give their opinions based thereon as to mental capacity, but usually the extent of the observations has been so limited, and the character of them so indefinite or inconclusive, as not to entitle them to very great weight or consideration. ³

The degree of capacity necessary to make a bilateral contract, where mind clashes with mind, is probably a little greater than that required for a unilateral contract, or a will, but, if a party has sufficient mental capacity to understand the nature and effect of the transaction, to assent to its provisions and to know that his act is irrevocable, his contract is valid.⁴

Undue influence is a species of fraud, and, like all other fraud, must be clearly proved, but the proof need not be direct. It may be circumstantial. It will not be inferred, but the circumstances attending a transaction may be such as to lead to the conclusion of fraud as inevitably as direct proof. The rule relating to the undue influence which will vitiate a contract has been repeatedly stated.

In Parramore v. Taylor, 11 Grat. (52 Va.) 220, 239. it is said:

" 'The influence to vitiate an act (says a writer of high reputation) must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion; by importunity which could not be resisted; that it was done merely for the sake of peace; so that the motive was tantamount to force and fear.' 1 Williams on Executors, p. 39; 1 Jarm. on Wills, p. 29, note 1."

In Howard v. Howard, 112 Va. 566, 72 S. E. 133, it is said:

"Before undue influence can be made the ground for setting aside a deed or will, it must be sufficient to destroy free agency on the part of the person executing the instrument. It must amount to coercion—practically duress. It must be shown to the satisfaction of the court that the party had no free will, but stood in vinculis; and the burden in such a case, as in a case where fraud is charged, is always on him who charges undue influence. Jenkins v. Rhodes, 106 Va. 564, 56 S. E. 332; Hoover v. Neff, 107 Va. 441, 59 S. E. 428; Wood v. Wood, 109 Va. 470, 63 S. E. 994."

See, also, Wooddy v. Taylor, 114 Va. 737, 77 S. E. 498; Huff v. Welch, 115 Va. 74, 78 S. E. 573; Thornton v. Thornton, 141 Va. 232, 126 Va. 69.

Applying the law as summarized above to the facts of the instant case, it seems clear that the decree of the trial court should be affirmed.

On September 11, 1922, T. G. Price conveyed to J. I. Barbara a tract of 79 acres of land in Surry county, for the consideration of $2,-500, of which $500 was paid on January 2, 1923, and the residue was evidenced by ten negotiable notes, each for $200, dated January 1, 1923, payable, respectively, from one to ten years after date. Price reserved a room in the house and certain privileges not necessary to mention. These notes were secured by a contemporaneous deed of trust on the land. It is conceded that the land was soldfor a fair price, and that Price was in full possession of his mental faculties.

In June, 1917, Price had made a will by which he conveyed practically all of his property to bis daughter, Effie E. Thomas.

Prior to 1924, T. G. Price had, for 12 or 14 years, lived on the farm of his nephew, John R. Price, near the latter, doing his own cooking. T. G. Price for some time had suffered from endocarditis, or inflammation of the valves of his heart. In July or August, 1924, his health had failed to such an extent that his nephew was unwilling for him to remain any longer where he was, and he went to the home of his (laughter. There he remained only 2 weeks, but was dissatisfied, and she did not want, him, and he sent for J. I. Barham, at whose house he had formerly spent a good deal of time, to come and get him and take him to Barham's home. This was done, and shortly after going there his physical condition greatly improved.

In October, 1924, T. G. Price went to the office of George F. Whitley, his attorney, in Smithfield, and told him that he wanted to live with Barham, and that the latter was to take care of him and pay all of, his bills and expenses, and, if he did so, he wished to cancel the debt for the deferred payments on the land, but that he wished to retain his lien during his lifetime to insure the fulfillment of Barham's obligation. Whitley advised him that this could be done, and he then brought in Barham, and the matter was gone over again, and Whitley was directed to prepare the contract. After some delay on the part of Whitley, the contract was prepared, bearing date October 28, 1924. T. G. Price demurred to signing at first on account of some doubt on his part whether the contract, as prepared, preserved the deed of trust intact during his lifetime, but, when assured of this fact by Whitley, he did sign it. This contract recites the sale of the land, the deed of trust to secure the deferred payments, the terms of the agreement between T. G. Price and Barham, the stipulations on the part of Barham, and directs Whitley, the trustee in the deed of trust, to mark the notes "paid" and the deed of trust "satisfied, " if upon his death it was found that Barham had fulfilled his contract. This Whitley did, after the death of T. G. Price, over the protest of Leonard Boothe, the executor named in the will of Price. Thereupon this suit was brought by the executor, assailing the validity of the contract of October 28, 1924, between T. G. Price and Barham, on the ground that Price was mentally incapable of entering into the contract, and that it was procured by the undue influence of Barham over Price.

Dr. Easley was the family physician of T. G. Price, from October, 1923, until he died on December 24, 1924. He states that Mr. Price had endocarditis, or inflammation of the valves of the heart; that this made him nervous, caused indigestion, restlessness sleeplessness, and the like, but that he had known "people to be very bad off and live to a really old age with it." He is very positive in his statements that the mental condition of Mr. Price was at all times good, and that he was fully competent to transact business; that he was in his office about October 30, 1924, to pay a bill, which he had against him; and that his mind was then in good condition. This was just two days after the contract was entered into. He says that Mr. Price stated to him at that time that he was done with doctor's bills for the future; that Mr. Barham was to pay his doctor's bills thereafter; and that he had no question about his capacity to enter into a contract about that time.

Mr. Whitley, who prepared the contract, says that Price came alone to see him some time before the contract was drawn; that Price Went over the whole situation with him, and told him what he wanted to do, and asked if it could be accomplished. He told him that there was no difficulty about the matter, and afterwards that Price went out and got Mr. Barham, and brought him in, and they went over the whole subject again to see if what was proposed was agreeable to each of the parties. He was busy about other matters just at that time, and delayed preparing the contract, but he did finally prepare it, and had it ready when Price and Barham returned together; that Price had some hesitation about signing it, because he was doubtful whether the language of the contract was such as would keep the deed of trust in force during his lifetime, but, when satisfied of this, he executed the contract, and seemed to be entirely satisfied with...