Wheeler v. McKeon

• Decision Date: 01 June 1917
• Docket Number: No. 20245[81].,20245[81].
• Citation: 162 N.W. 1070,137 Minn. 92
• Parties: WHEELER v. McKEON et al.
• Court: Minnesota Supreme Court

137 Minn. 92

162 N.W. 1070

WHEELER

v.McKEON et al.

No. 20245[81].

Supreme Court of Minnesota.

June 1, 1917.

Appeal from District Court, Pipestone County; L. S. Nelson, Judge.

Action by C. M. Wheeler, administrator, against Henry McKeon and others. Judgment for plaintiff, and from an order denying their motion for a new trial, defendants appeal. Order reversed.

Syllabus by the Court

The personal representative of a decedent can maintain an action to set aside the decedent's contract of sale of real property upon the ground of mental incompetency.

The evidence sustains a finding that the plaintiff was mentally incompetent at the time of the execution of the contract of sale involved.

Persons interested in the event of such an action may testify as to conversations and declarations of the deceased, in the nature of verbal acts, tending to show loss of memory, a wandering mind, and delusions, as bearing upon the question of competency, and the court properly admitted such testimony. The statute (Gen. St. 1913, § 8378), which forbids the giving in evidence by a person interested in the event of the action of conversations with or admissions of deceased persons, is in the nature of an exception to the general rule that interested persons are competent witnesses and must be construed strictly.

The business acts of a party whose competency is in question, and declarations and conversations about the time, when they tend to show his comprehension of affairs, are admissible; and testimony of this character was erroneously excluded.

The plaintiff claimed that the contract of sale was too indefinite for enforcement and the defendants claimed that the agreement was in fact definite and certain and that whatever uncertainty existed resulted from mistake in framing the written contract and that it should be reformed The court found with the plaintiff and against the defendants. In view of the error in excluding testimony bearing upon the question of competency the finding is not sustained. Howard & Gurley, of Pipestone, and C. H. Christopherson, of Luverne, for appellants.

Bryson & Bryson, of Iowa Falls, Iowa, and Morris Evans, of Pipestone, for respondent.

DIBELL, C.

Action to set aside a contract for the sale of lands upon the ground of the mental incompetency of the vendor. The issue of mental incompetency was submitted to the jury which found the vendor incompetent. There were findings for the plaintiff in accordance with the finding of the jury. In the complaint it was alleged that the contract was too indefinite for enforcement. The defendants claimed that the agreement for the sale was definite and certain, and that if there was any indefiniteness in the written contract it was because it by mistake failed to state the actual agreement and that it should be reformed. The court found for the plaintiff and against the defendants upon this issue. The defendants appeal from the order denying their motion for a new trial.

[1] 1. The action was brought in behalf of Catherine Grover, an incompetent, by her guardian. Mrs. Grover died pending trial and the plaintiff was appointed administrator and was substituted as plaintiff. The point is made that the plaintiff cannot maintain this section, but that it should be maintained by the heirs who succeeded to Mrs. Grover's property upon her death. No objection was made by plea or otherwise prior to the trial. Conceding but not holding that the objection may be first made at the trial it is not well taken. By statute the administrator is entitled to the possession and to the rents and profits of the real estate of the decedent and ‘may himself, or jointly with the heirs or devisees, maintain an action for the possession of the real estate or to quiet title to the same.’ G. S. 1913, § 7296. The authorities upon the general question of the right of the personal representative to maintain an action to quiet title are not in harmony; but under similar statutes the usual holding favors the right. Collins v. O'Laverty, 136 Cal. 31, 68 Pac. 327;Blakemore v. Roberts, 12 N. D. 394, 96 N. W. 1029;Munger v. Doolan, 75 Conn. 656, 55 Atl. 169;Ladd v. Mills, 44 Or. 224, 75 Pac. 141;Laverty v. Sexton, 41 Iowa, 435;In re Higgins' Estate, 15 Mont. 474, 39 Pac. 506,28 L. R. A. 116. And see Eyre v. City of Faribault, 121 Minn. 233, 141 N. W. 170, L. R. A. 1917A, 685;Quinn v. Minneapolis, 102 Minn. 256, 113 N. W. 689;Pabst Brewing Co. v. Small, 83 Minn. 445, 86 N. W. 450.

[2] 2. Something more than a year prior to the making of the contract Mrs. Grover sustained an injury to her head through a fall. After that she failed. A number of people, familiar with her in her daily life, testified as to her acts, declarations and conduct and gave their opinion, based upon such facts, that she was not of contractual capacity. Her attending physician gave it as his opinion that she was suffering from senile dementia and that she died from it. She was 78 years of age. The contract was made August 18, 1915, and she died on March 8, 1916. The evidence of incompetency was seriously controverted and is not at all conclusive, but it supports the finding of the jury.

[3] 3. Mrs. Grover's sons, who were interested in the event of the action, were permitted to testify to her conversations, which indicated a loss of memory, a wandering mind and delusions. These conversations were not in connection with the execution of the contract. Objection was made to them as in violation of G. S. 1913, § 8378, which forbids a party to an action or one interested in the event thereof ‘to give evidence therein of or concerning any conversation with, or admission of, a deceased or insane party or person relative to any matter at issue between the parties,’ etc. In Re Brown, 38 Minn. 112, 35 N. W. 726, it was held that conversations of a party since deceased might be given in evidence by those interested in the action without a violation of the statute when they were in the nature of verbal acts and bore upon the question of mental competency....