Slayback v. Witt

• Decision Date: 12 May 1898
• Docket Number: 18,202
• Citation: 50 N.E. 389,151 Ind. 376
• Parties: Slayback v. Witt et al
• Court: Indiana Supreme Court

50 N.E. 389

151 Ind. 376

Slayback v. Witt et al

No. 18,202

Supreme Court of Indiana

May 12, 1898

Rehearing Denied Oct. 28, 1898.

From the Boone Circuit Court.

Reversed.

Byron K. Elliott, William F. Elliott, Samuel M. Ralston, Michael Keefe and Reagan & Ryan for appellant.

Terhune & New, for appellees.

OPINION

McCabe, J.

The appellees sued the appellant to set aside a deed of gift by his mother, conveying to him 160 acres of land, and for partition thereof. A trial of the issues resulted in a finding and judgment in favor of the plaintiffs, over defendant's motion for a new trial.

The only error assigned, and not waived by the appellant, calls in question the action of the court in overruling the motion for a new trial. The parties to the action are the children and grandchildren and heirs of William Slayback, Sr., and Anna H. Slayback, husband and wife, late of Boone county, now deceased. All of said heirs were plaintiffs below except David E. Slayback, who was the sole defendant in the lower court, and the appellant here. The complaint was in four paragraphs. The first paragraph seeks to set aside the deed from Anna H. Slayback to appellant, David E. Slayback purporting to convey the farm mentioned from said Anna to appellant, on the ground of the unsoundness of mind of the grantor. The second paragraph seeks to set aside said deed upon the ground of the fraud and undue influence exercised by the grantee in the procurement of said deed. The third paragraph seeks to set aside said deed upon the ground of unsoundness of mind of the grantor, want of consideration, undue influence, and failure to deliver said deed. The fourth paragraph is for partition of said real estate between all of said heirs. Judgment setting aside the deed and of partition was accordingly rendered.

The grounds specified in the motion for a new trial are, among other things, that the finding of the court was contrary to law and unsupported by the evidence, and that the court erred in refusing to permit the defendant, David E. Slayback, to testify as a witness on his own behalf to the effect that he never requested his mother, Anna H. Slayback, to convey the land to him; and to the further fact that it was at her request and solicitation that he went to Lebanon, and requested the lawyer, Mr. Wesner, to come out to the farm where he and his mother lived together to write the deed. The court refused to receive appellant's testimony on objection made by the plaintiffs to his competency as a witness. The statute rendered both parties incompetent as witnesses in their own behalf, as to any matter which, as here, occurred before the death of the ancestor. Section 507 Burns' R. S. 1894 (499, R. S. 1881).

The principal reliance of appellant for a reversal is the insufficiency of the evidence to support the finding of the court. There is no reasonable ground furnished by the evidence to establish the unsoundness of the mind of Anna H. Slayback at the time she executed the deed in question. The court placed its finding in favor of the plaintiffs on the sole ground of the undue influence of said David over his mother, said Anna, and the consequent fraud arising therefrom; and the whole controversy in the briefs is as to whether the evidence was sufficient to establish such undue influence and consequent fraud of appellant in the procurement of said conveyance, the appellant contending that the most favorable evidence for appellees was insufficient to establish such undue influence, and the appellees insisting that it is.

The substance of the facts established by the evidence is: That William Slayback, Sr., husband of Anna H. Slayback, died intestate in Boone county, Indiana, in 1884, the owner of three farms, of 160 acres each, and left surviving him as his only heirs at law his widow, said Anna H. Slayback; Eliza A. Witt, a daughter, who was intermarried with Henry Witt; Mary J. Kersey, a daughter, intermarried with Lee Kersey; Sarah A. Click, only child and heir of Mary Kersey, a daughter, intermarried with Frank Click; William O. Cluster, only child and heir of Milan Cluster, a daughter; Lew W. Slayback, Milroy L. Slayback, Dora A. Copeland, Charles G. Slayback and Mary A. Slayback, children and heirs of William E. Slayback, Jr., a son of said William Slayback, Sr., deceased. That said Dora A Copeland is the wife of Lewis Copeland. That all of said children and grandchildren were made plaintiffs below and are appellees here, and they were all alike related to said Anna H. and William Slayback, Sr., her husband. That all of said children had married and left home, and were doing for themselves except appellant, David, who still remained at home with his parents, taking care of them as long as they lived, and he never married. Upon the death of William Slayback, Sr., which, as before stated, occurred in the year 1884, his estate was divided among his above named heirs, by arbitration, as follows: To the widow, Anna H. Slayback, the home farm of 160 acres, and her absolute claim of $ 500, to be paid by the appellant, David E. Slayback; to the appellant, David E. Slayback, a farm of 157 acres, and all the personal property belonging to said estate, subject to the claim of $ 500 to be paid to the widow, and the debts of said estate, except a mortgage indebtedness of $ 500 on the farm going to the other heirs; to all the other heirs a farm of 160 acres, subject to a mortgage of $ 500. There was no other indebtedness against said estate. This settlement was made in view of and taking into consideration advancements of about $ 1,800, that had been made to each child as they respectively came of age or married. But no such advancement was made to David. During the time that David and his father worked together, and after he became of age, David became the owner of certain real estate, the title to which was taken in the name of the father. In the arbitration above referred to the land held by and in the name of the father, which was in equity owned by David, was taken into account. At the time of the death of William Slayback, Sr., and long prior thereto, his family consisted of himself and wife, Anna H. Slayback, and David E. Slayback, appellant, a bachelor son, who was at that time about fifty years old. After the death of William Slayback, Sr., David and his mother resided together on the home farm, the land now in question, which had in the arbitration been set off to her, and they so continued to live until the death of the old lady, on January 14, 1894.

The evidence shows that David had been attentive and kind to his parents as long as they lived together, and that after his father's death his care, kindness, and respect for his mother's comfort and wishes had been remarkable. She had borne and reared a large family, and had very little education, being able to read print, but not able to write or read writing. Had been an excellent housekeeper and a good manager of such matters, but had no experience in business matters generally. She had good judgment of matters within her sphere of action. She received a fall and injury to her hip or hips, so that for the last ten years of her life she had to walk on crutches. She was, on account of her old age, when the deed in question was made and signed, weak in body and mind, but the weakness of her mind came from old age and not from unsoundness of mind. A short time before the deed was made she had suffered a slight attack of apoplexy, but was able to go about as usual on her crutches, and to talk, when the deed was made. A lawyer by the name of Wesner, then living in Lebanon, but who shortly afterwards died, had been notified by David to come to the farm for some purpose. He, in company with one Titus, came, and on inquiry made by the hired woman at the Slayback residence who those men were, as they approached the house, David answered in the presence and hearing of his mother that they were the men that his mother had requested him to have come out, or something of that kind, to which she made no reply. Mr. Wesner and David went into an adjoining room, with the door open, and prepared the deed. When it was ready, Mr. Wesner invited David's mother in to sign it. She walked in, and remarked that she could not write, and requested Mr. Wesner to write her name, and she made her mark. She was then about ninety-one years of age, and died in about a year afterwards.

If the finding and judgment are to be upheld, it must be on the ground, as before remarked, that the deed was procured by the undue influence exerted by David over his mother in inducing her to make the same, because, as before remarked, there was no evidence of unsoundness of mind, and the finding of the trial court so treats the evidence. Neither is there any evidence of undue influence, unless that fact is required by law to be presumed from the condition and situation of the parties to the deed and the circumstances surrounding the transaction. Appellees' counsel urge with great ability and learning that such undue influence must be presumed from the circumstances mentioned, and if the relation of parent and child did not exist between the grantor and grantee in this case, there being no valuable consideration for the deed, the uniform current of authority everywhere would require us to presume that the deed was procured by undue influence. In other words, equity will overturn such a deed unless the presumption of undue influence arising from the circumstances mentioned is rebutted by affirmative proof that the grantee did not procure the deed by undue influence. This line of authority and adjudged cases, cited by appellees' learned counsel, vast in number, both English and American, are not applicable to the present case because of the...