Stewart v. Miller

• Decision Date: 26 February 1925
• Docket Number: (No. 157.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 271 S.W. 311
• Parties: STEWART et al. v. MILLER et al.
• Court: Texas Court of Appeals

271 S.W. 311

STEWART et al. v. MILLER et al.

(No. 157.)^*

Court of Civil Appeals of Texas. Waco.

February 26, 1925.

Rehearing Denied April 2, 1925.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Suit by Mrs. Lucile Stewart and others against Luther Miller and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Stickley & Fitzhugh, of Memphis, Tenn., and Collins, Dupree & Crenshaw and Frazier & Averitte, all of Hillsboro, for appellants.

Atkins & Van Dyke, Dudley Porter, Lewis & Rhodes, and Bryant & Bryant, all of Paris, Tenn., Geo. A. Titterington, of Dallas, and Wear, Wood & Wear, of Hillsboro, for appellees.

GALLAGHER, C. J.

This is an appeal from a judgment of the district court refusing to set aside certain deeds. Appellants, Mrs. Lucile Stewart, joined by her husband, for herself and as guardian and next friend for her minor brothers and sisters, Joe Johnson, Wesley Johnson, Minnie Johnson, and Mary Johnson, were plaintiffs in the trial court and will be so designated and referred to here. Luther Miller, Mrs. Ethel Simmons, a widow, Mrs. Merle Oliver, and Miss Ruth Miller were defendants in the trial court and will be so designated and referred to here. Dr. A. A. Oliver, the husband of Mrs. Merle Oliver, was joined as defendant. The John Hancock Mutual Life Insurance Company was also joined as a defendant, plaintiffs alleging that said company held a mortgage on a tract of land covered by one of the deeds involved in this suit. The case was tried before a jury. The court instructed a verdict for the defendants, and upon the return of such verdict rendered the judgment here presented for review. The facts will be set out in connection with each separate issue discussed.

Plaintiffs contended that the court erred in instructing a verdict for defendants. They base this contention upon their claim that Mrs. Minerva A. Miller, one of the grantors in said deeds and the owner in her own separate right of the property conveyed thereby, was at the time of the execution of the same mentally incapable of understanding the nature and effect of her act in so executing the same.

Mrs. Minerva Miller and Sam & Miller were husband and wife and the parents of defendants and grandparents of the plaintiffs in this case. They also had an adult son named Cooper Miller, and an older married daughter named Emma Daniels. Mrs. Miller at the time of the execution of said deeds resided with her husband and family in the state of Tennessee. The grantees in said deeds, respectively, were her four youngest children. Plaintiffs were the children of an older daughter, then deceased. The property conveyed by said deeds was, so far as shown, the only property owned by Mrs. Miller in her own right. Each of said deeds recited love and affection as the sole consideration therefor, and retained a life estate in the land conveyed thereby in Mr. and Mrs. Miller and conveyed the remainder only in fee to the respective grantees therein. Prior to the execution of said deeds, the oldest son, Cooper Miller, had received substantial gifts or advances from his father. None of the same, however, were shown to have come from the estate of his mother. Shortly after Mrs. Daniels learned of the execution and delivery of said deeds, she complained to her mother and father of the fact that neither she nor plaintiffs had received any part in the distribution of said land. Subsequently, she received a settlement satisfactory to her; but whether out of the estate of her father, or mother, or both, is not shown. Plaintiffs had not then and never did receive anything from Mrs. Miller's separate property or estate. Mrs. Johnson, the mother of plaintiffs, seems to have separated from her husband and returned to the parental roof with her children some six or eight years prior to the execution of said deeds. She and her children were received, supported, and loved as other members of the family. She and the children as they grew up assisted in the duties of the home, and when the boys became old enough to do so they assisted in work on the farm. All of the children were sent to school and seemed to have been furnished ordinary opportunities for acquiring an education. Their mother, Mrs. Johnson, died about three years before the execution of said deeds. Mrs. Oliver and Miss Ruth Miller, two of the defendants, seem to have been in constant attendance upon their mother until her death. Miss Ruth especially ministered to her mother in her affliction with tenderness and self-sacrificing devotion. The statement of facts contains nothing showing any ill will or unkind feeling on the part of either Mr. or Mrs. Miller toward plaintiffs or their mother.

The four deeds involved herein effected partition and distribution of the said tract of land among the respective grantees therein. Said tract of land contained 640 acres and was situated in Hill county, Tex. The said deeds were all prepared at the same time and executed and delivered at the same time. Mr. Miller had the land surveyed into said four parcels, had the deeds prepared, and had a notary go to his home for the purpose of taking the acknowledgment of Mrs. Miller. Said deeds are dated and purport to have been acknowledged on January 1, 1918. There is testimony to the effect that said deeds, though not at the time formally executed, were delivered to the respective grantees by Mr. Miller, in the presence of his wife, on Christmas Day, 1917. The statement of facts contains approximately 150 pages. The major portion of the same bears directly on the physical and mental condition of Mrs. Miller. Such testimony covers a period of from 10 to 15 years. The time of the occurrence of most of the incidents recited in said testimony, and of the observations of Mrs. Miller detailed therein, is very vaguely stated. Generally, the evidence tends to show a progressive decline in Mrs. Miller's condition, which continued until her death in the spring of 1920. In deference to the rule of law laid down in the authorities hereinafter cited, we will recite the evidence bearing on Mrs. Miller's physical and mental condition in its most favorable aspect for plaintiffs, ignoring all conflicts and contradictions. Eastham v. Hunter, 98 Tex. 560, 565, 86 S. W. 323.

The age of Mrs. Miller at the date of said deeds is not shown. She was, however, an elderly woman. She had borne thirteen children, seven of whom were dead at that time. Her oldest child was then about 47 years of age. We have prepared abridged statements of the substance of some of the testimony most favorable to plaintiffs' contention.

Mrs. Daniels, daughter of Mrs. Miller, testified, in part, substantially as follows:

"For several years before Mrs. Miller's death, she was totally blind. For eight or ten years prior to her death she was not physically able to get up and down out of her bed and look after herself. She was lifted. For the last years of her life she didn't have good use of her limbs and hands. I don't think she could turn herself over in bed. She suffered intensely for many years before she died. During the last several years of my mother's life, her hands had to be moved and placed on the pillows to rest them. They were all drawn with rheumatism and she had no use of them. They had to be moved and placed by some one else. I never saw her trying to use them for some time before her death."

Miss Daniels, daughter of Mrs. Emma Daniels, testified, in part, substantially as follows:

"In the last years of Mrs. Miller's life, she was not able to do anything for herself. She couldn't turn herself over in bed and had to be turned over and lifted up. She didn't have any use of her limbs, and the best I can remember, she didn't have very much use of her hands. They were swollen and drawn and her fingers drawn in toward the palm. She would cry with pain."

Mrs. Cozatt, a sister of the father of plaintiffs, testified, in part, substantially as follows:

"Mrs. Miller would just lie there when you would go in and pay no attention to you until she was spoken to by some member of the family, and they would tell her who I was, and she would say what some member of the family would tell her to say. They would tell her to speak to me and call my name, and she would just say what they told her to say. She had no physical strength at all. She did not carry on any connected conversation with me or discuss any matters with me. The extent of the conversations I had with her during the latter years of her life was just as the members of the family would put the words into her mouth to speak. She seemed to have no conversational powers within herself. During the last few years of her life I didn't hear her carry on what I think could be called a conversation with any one. The members of the family, or some members of the family, would tell her who I was, and she would speak to me, and then ask maybe a question or two, and then she would seem to lose sight of the fact that there was any one present. I could not conscientiously say that I believe Mrs. Miller was responsible mentally or physically for anything that would pertain to business. I observed the condition of her mind when I was in her presence, but I would say that owing to the fact that she was not capacitated to carry on a conversation, I should say that that would be an indication that she was mentally incapacitated."

Dr. Woods testified, in part, substantially as follows:

"I treated Mrs. Miller for about two months in the spring of 1910. My treatment is evolved out of chiropractic and osteopathy and is termed `neuropathic' treatment. She was exceedingly childish. She cried a great deal. When I first began treating her, if I happened to hurt her she would sometimes pull my hair, and about that time the barber cut my hair real short. The next time I gave her a treatment and hurt her, she undertook to pull my hair, and she cried about that....