Zullig v. Zullig, 4088

• Decision Date: 25 October 1972
• Docket Number: No. 4088,4088
• Citation: 502 P.2d 198
• Parties: Conrad Abraham ZULLIG, a/k/a Conrad Zullig, a single man, individually and by and through his next friends, et al., Appellants (Plaintiffs below), v. John William ZULLIG and Linda Zullig, husband and wife, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 198

502 P.2d 198

Conrad Abraham ZULLIG, a/k/a Conrad Zullig, a single man, individually and by and through his next friends, et al., Appellants (Plaintiffs below), v. John William ZULLIG and Linda Zullig, husband and wife, Appellees (Defendants below).

No. 4088.

Supreme Court of Wyoming.

Oct. 25, 1972.

Ronald D. Vanderhoef, of Lonabaugh & Bonner, Sheridan, for appellants.

Harry F. Schwartz, Sheridan, for appellees.

Before McINTYPRE, C. J., and PARKER, McEWAN, and GUTHRIE, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This is a proceeding in which Conrad Abraham Zulling, individually and by and through his next friends, Barbara Finch, Evelyn Hoge, Leona Mae Vaughn, and Conrad Allen Zullig (these last four named being his children) seek to have two deeds conveying certain lands and a one-half interest in other lands to John William Zullig (another son) set aside and declared invalid. Linda Zullig, the wife of John William Zullig, is joined as a defendant.

From an adverse ruling by the trial court plaintiffs, appellants here, prosecuted this appeal. Appellants based their claim in the district court on these grounds: That Conrad Abraham Zullig lacked the capacity to consciously dispose of his property, and that the deeds were procured as a result of undue influence, persuasion, and misrepresentation. They reiterated the first claim and asserted by reason of advanced age, physical infirmity, drinking problems, and his dependent condition that these deeds were secured during a period of incapacity; and that the real consideration for the conveyance of this property was defendants' agreement to care for, feed, and clothe Conrad Abraham Zullig for the remainder of his life.

Upon appeal appellants assert three grounds for reversal, they being that the father, Conrad Abraham Zullig, lacked the necessary and required legal capacity to convey or dispose of his property; that a fiduciary relationship existed between grantor and grantee in the deeds and the court erred in finding grantee had carried the burden of proving the absence of constructive fraud or undue influence; and that appellees breached their agreement with the father by failure to fulfill the agreement for his maintenance and care, this being a condition subsequent, and this breach effects the cancellation of the deeds.

In the outline of that factual situation we must honor a basic precept and assume appellees' evidence is true without consideration of the conflicting evidence and give thereto every favorable inference which may be reasonably or properly drawn therefrom. ¹

On September 13, 1969, Conrad Abraham Zullig was the owner of an undivided one-half interest in a small ranch in Sheridan County, Wyoming, the other one-half interest having been theretofore conveyed by him to his son Conrad Allen Zullig in 1958, and the sole owner of 6.82 acres carved out of the ranch lands and upon which were situate the house and buildings. On that date he conveyed by separate warranty deeds his estate in these lands to his son John William Zullig, reserving only unto himself a life estate in the smaller tract. These are the conveyances which are sought to be set aside.

John, the younger son and the youngest child in the family, had been serving in the United States Navy and was discharged early in the year 1969, upon which discharge he went to Montana to help his sister, whose husband had just died. He stayed there approximately three weeks then returned to Sheridan to see his brother and uncle. At that time he was en route to Casper with his wife where he intended to enroll in college or seek employment. He did not know at that time that his father was living on the ranch and believed he was in the Soldiers' and Sailors' Home at Buffalo, Wyoming. He changed his plans after his arrival when his father asked him to stay and take care of the place and look after him, and if he would do this his father would convey these lands to him. John and his wife moved into the home and the father lived with them continually from March 1969 until September 1970 when he departed with his daughter Barbara to Worland.

When this arrangement was made the house was a mess and unclean, it being then occupied by Conrad, the other son, and the father. It had no hot water or plumbing system and Conrad's irregular hours and employments left a great deal of the responsibility for the father's care and feeding upon his own shoulders. After John and Linda moved in they started doing some plumbing and installed a hot water heater and otherwise made the house more habitable. There were three meals a day prepared by Linda for them.

On September 12, 1969, John and his father went to the office of James Birchby to get these two deeds drawn. Birchby advised them he was unable because of his other commitments to do this, but he then requested Edward Birchby to help them. Edward also had other commitments and he asked John and his father to return that afternoon. They returned and after some conversation were told by Birchby that they must get the legal description of the land and that they could get this at the court house or bring in an abstract. By appointment they returned on Saturday morning with this information on a typed paper, which Birchby believed came from the county clerk's office. The deeds were drawn by Birchby and acknowledged by a secretary in Birchby's presence. The father was not under the influence of intoxicating liquor from Birchby's observation and he was satisfied that he understood what he was doing because he had talked to him approximately thirty minutes. John had asked Birchby to talk to his father to make sure he was doing this freely. The office record shows the father paid for drawing these deeds. All the time that John and his father were in the office John did nothing and said nothing urging his father to do this.

Linda, John, and his father continued to live together in the home until September 1970 when he moved to Worland to live with his daughter Barbara, where he has lived since that time. He and the other appellants had consulted a lawyer and determined upon this action at that time.

There is no evidence of discord until the summer of 1970 when there was apparently some trouble between the appellees and the father after they attempted to limit the amount of beer he drank but the older son supplied him with beer whenever he wanted it. At times when he drank too much beer he was apparently slovenly, dirty, unpleasant, and refused to eat. He lost twenty pounds during this period.

There is little evidence in the record as to Conrad Abraham Zullig's incapacity or lack of understanding at the time of the execution of these deeds. The only evidence proffered by appellants even touching this question was the testimony of County Clerk B. B. Hume that sometime in the fall of 1969-he thinks a few days before the recording of these deeds-John and his father came into his office to have a deed prepared and that the father spoke incoherently at that time and did not appear to understand what he was doing. Hume did not know if he had been drinking that day. Contrasted to that, the record shows the father kept his own bank account, paid his own bills, and kept account of his money. It...