Watson v. Alford

• Decision Date: 21 January 1974
• Docket Number: No. 73--178,73--178
• Citation: 503 S.W.2d 897,255 Ark. 911
• Parties: Reather WATSON, Appellant, v. Phil ALFORD, Administrator of the Estate of Nelson Young, Deceased, et al., Appellees.
• Court: Arkansas Supreme Court

Page 897

503 S.W.2d 897

255 Ark. 911

Reather WATSON, Appellant, v.Phil ALFORD, Administrator of the Estate of Nelson YoungDeceased, et al., Appellees.

No. 73--178.

Supreme Court of Arkansas.

Jan. 21, 1974.

Donald B. Friedman of Harkness, Friedman & Kusin, Texarkana, Tex., for appellant.

Nicholas H. Patton of Young & Patton, Texarkana, for appellees.

HOLT, Justice.

Appellant sought to set aside a conveyance of land by her deceased husband, Emanuel Watson, and herself to appellees, Stewart Landes and his wife, Gloria Landes.The chancellor dismissed appellant's third party complaint and refused to set aside the conveyance.For reversal of that decree, appellant contends that the conveyance should be cancelled inasmuch as Emanuel was not competent to know the nature of the transaction in which he participated.Appellant bases this contention on Emanuel's advanced age, 100 years old at the time he signed the deed, and inadequate consideration received for the land.We think the appellant is correct.

The appellee administrator brought suit to foreclose a mortgage in the sum of.$1,000.35 bearing 10% interest per annum, together with a 10% attorney's fee.The mortgage was executed in 1966 on property then owned by Charles Watson, Emanuel's son by a former marriage.A few months later Charles died intestate and Emanuel, being the sole heir, inherited the encumbered property.At that time Emanuel was 100 years of age.He died four years later.Reather instituted her third party complaint in the pending foreclosure proceeding.As indicated, she contends that her aged husband was not competent to transact the sale of their land which was attended by inadequate consideration.

In the oft cited case of Kelly's Heirs v. McGuire, 15 Ark. 555(1855), the court announced that if one is 'of such great weakness of mind, as to be unable to guard himself against imposition, or to resist importunity or undue influence, a contract, made by him under such circumstances, will be set aside.And it is not material from what cause such weakness arises.It may be from temporary illness, general mental imbecility, . . . the infirmity of extreme old age.'The fact that a grantor is old and in feeble health is a circumstance bearing on the question of mental capacity as is gross inadequacy of price.Campbell v. Lux, 146 Ark. 397, 225 S.W. 653(1920), McEvoy v. Tucker, 115 Ark. 430, 171 S.W. 888(1914).Of course, we will not set aside contracts for mere inadequacy of price.Hawkins v. Randolph, 149 Ark. 124, 231 S.W. 556(1921).The grantor's disability must render him incapable of 'intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his act.'McEvoy v. Tucker, supra.Each case dealing with mental capacity must be decided on its own peculiar facts and circumstances.Hawkins v. Randolph, supra.

Our cases appear in conflict as to the evidentiary standard which is required to establish mental incapacity in the making of a deed.One line of cases holds that only a clear preponderance of the evidence is the required standard of proof.Campbell v. Lux, supra, andMcEvoy v. Tucker, supra.However, other cases apply the usual quantum of proof which is required to set aside and cancel a deed: i.e., clear, cogent and convincing evidence.Whatley and Wright v. Corbin, 252 Ark. 561, 480 S.W.2d 142(1972), andBraswell v. Brandon, 208 Ark. 174, 185 S.W.2d 271(1945).Braswell was relied upon in Whatley and Wright as precedent for the clear, cogent and convincing standard with respect to mental capacity.However, neither Campbell or McEvoy, the earlier cases, were recognized in Braswell which enunciated the stricter evidentiary requirement by citing Stephens v. Keener, 199 Ark. 1051, 137 S.W.2d 253(1940).Significantly, Stephens did not deal with mental incapacity as grounds for setting aside a deed.There, mistake and inadequate consideration were the issues.

We take this occasion to resolve the inconsistency in favor of the less strict quantum of proof which requires only a preponderance of the evidence as pronounced by our earlier cases.The rationale is that we can perceive no basis to esablish a different standard of proof involving the mental capacity to make a deed from our rule with respect to the mental capacity to make a will.Both are solemn written instruments.We have long recognized the preponderance test as being our guideline in weighing the evidence of testamentary capacity.Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501(1965).Applying this standard we now review the evidence in the case at bar.

There is little doubt that Emanuel had grown feeble and incapacitated in his old age.About ten years preceding this questioned conveyance, he had suffered a stroke and since that time was unable to work.Reather testified that his stroke impaired his mind and severely limited his ability to function physically and mentally.She was instructed by his doctors not to do anything to disturb or aggravate him.In June, 1966, Landes, the purchaser, came to their house and, after she dressed her husband, he accompanied Landes to view the property.The next day, Landes returned with the necessary legal papers for the conveyance which Emanuel signed.Reather signed the papers only after Emanuel became agitated at her reluctance.The next morning Emanuel inquired if she had seen the word 'deed' on the papers.When she confirmed that she had, Emanuel gave her the $200 check Landes had given him and directed her to take the check to Landes and demand a return of the papers they had signed.Landes refused to do this, stating he would only give them to Emanuel.Two weeks lapsed before Emanuel was physically able to go to Landes' office.At that time, Emanuel was told that the land had been sold.He left Landes' office crying.

Other witnesses corroborated Reather's testimony that due to Emanuel's stroke and age, he was unable to look after his business affairs.A lifetime acquaintance testified that due to Emanuel's stroke and age, he was unable to conduct business affairs and that she, as a frequent visitor, assisted in getting Emanuel in and out of his bed.Further, following his stroke, '(H)is mind would come and go and sometimes you knew what he was talking about and sometimes you didn't.'When Emanuel learned his property would not be returned, he went to a local attorney's office and left the $200 check with him.This attorney had practiced law in the locality since 1922 and it appears that he was well acquainted with Emanuel since this time.He testified that Emanuel came to his office...