Ward v. Ward

• Decision Date: 05 May 1910
• Docket Number: 15,953
• Citation: 126 N.W. 305,86 Neb. 744
• Parties: FRANK WARD, APPELLANT, v. WILLIAM WARD ET AL., APPELLEES
• Court: Nebraska Supreme Court

126 N.W. 305

86 Neb. 744

FRANK WARD, APPELLANT, v. WILLIAM WARD ET AL., APPELLEES

No. 15,953

Supreme Court of Nebraska

May 5, 1910

APPEAL from the district court for Cedar county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

J. L Kaley, for appellant.

J. C Robinson and T. E. Brady, contra.

OPINION

ROOT, J.

This is an action in equity to cancel a deed made by John Ward, the plaintiff's father, to the defendant William Ward, another son of the deceased. The defendant prevailed, and the plaintiff appeals.

John Ward, the litigants' common ancestor, was a parsimonious, quick-tempered, odd-appearing, eccentric, illiterate old man. He was a firm believer in the efficacy of outspoken prayer, but prone to lapse into profanity if irritated or annoyed. In 1887 John Ward's first wife died. Two sons survived her, the plaintiff, 14 years of age, and the defendant William Ward, 22 years of age. John Ward emancipated his son Frank at this time, and from thenceforward this son did not contribute to his father's support or estate, but became improvident and dissipated. William Ward, after he became 16 years of age, and until his mother's death, performed most of the labor on his father's farm and thereafter contributed to that parent's support. After his first wife died John Ward moved to Dunlap, Iowa, and again married, but did not dwell in harmony with his wife. He became extremely exacting concerning his household expenses, charged his wife with extravagance, and their family life was so discordant that she secured a divorce from him. Subsequently Ward and his second wife remarried, and thereafter he commenced, but did not prosecute to a conclusion, an action for a divorce. John Ward's charges against his wife seem to have been without foundation, but he continued his vindictive, unreasonable course toward her, so far as the record discloses, during the remainder of his life. Ward frequently announced that his wife should not receive any of his estate, for the alleged reason that her son by a former marriage and her other relatives would induce her to transfer the property to them and would squander it.

1. The plaintiff contends that his father in 1899, the year the deed in question was executed, was of unsound mind and mentally incompetent to execute a deed. During the trial of this case two witnesses testified that John Ward would become bewildered and unable to find his residence in Dunlap. His widow, her relatives, and other witnesses of evident intelligence, testified that in 1899, and up to the time of his death, he was insane. A much greater array of witnesses, including physicians who had treated John Ward for minor infirmities, his comrades in a G. A. R. post, merchants with whom he dealt, members of his church, and intimate acquaintances who had known him and observed his conduct for from 10 to 25 years, testified that while he was eccentric, quick-tempered, and at times profane, he was during said period blessed with a retentive memory, was exacting and shrewd in matters touching his financial interests, and was competent to transact business. In 1897 John Ward conveyed his Dunlap property, which was worth but $ 300, to his son William, subject to a life estate reserved to Mrs. John Ward. The record does not disclose whether this was a voluntary conveyance, but such an inference may be drawn from the evidence. In 1899, while William Ward was in the United States army in Cuba, he sent his father money at different times, and their relations at all times seem to have been pleasant and friendly. In April of that year John Ward requested an attorney to prepare a deed conveying the land in controversy to his son William. The instrument was prepared by the scrivener, and signed and acknowledged by the grantor, but remained in the attorney's custody until June of that year. During this month William called upon his father, and shortly thereafter the deed appeared in the son's possession. At all times thereafter William controlled the land and claimed to own it. At the time this instrument passed into William's custody his father was living apart from his wife, and John Ward's landlord testifies to a conversation between William and his father, wherein the son insisted the deed should be delivered to him, and promised as a consideration for the land to furnish his father support and to give him a suit of clothes. William denies making these statements, and there is evidence in the record discrediting the landlord's testimony to such a degree that we are not inclined to give it much credence. Subsequently John Ward remained for a time in Dunlap, then boarded with a niece in South Omaha, thereafter lived for a time in the soldiers' home in Milford, then removed to a like institution in Leavenworth, and from thence went, or was taken, to Washington, D. C., where he departed this life in 1904, insane, so one witness testifies. In 1901 John Ward commenced an action in Cedar county to set aside said deed, for the alleged reason that it was executed in consideration of support which the grantee had withheld. Seven months thereafter the plaintiff in that action dismissed his suit. The record is replete with evidence concerning John Ward's declarations; some of them admissions against interest, others self-serving in character, but all of this testimony was received without objection and will be considered in determining the issues joined.

From this evidence it appears that John Ward said on one occasion that he made the deed to "beat" his wife, and now Will was trying to "beat" his father; that he intended to recover his land if he had to shoot his son to secure it. Other witnesses testify to the grantor's repeated statements that Will had been a good boy, had given his earnings to and had cared for his father,...