Opinion
12-28-1888
CLARK v. KIRKPATRICK.
E. B. Learning, for complainant. B. S. Clymer, for defendant.
Bill to set aside a conveyance, brought by Charles Clark against Elizabeth Kirkpatrick. On final hearing.
E. B. Learning, for complainant. B. S. Clymer, for defendant.
BIRD, V. C. In March, 1884, John Clark was the owner of a city lot on which was his dwelling, and to which was attached a grocery store in which he carried on the business of a grocer. On the 22d day of that month he executed a deed for said lot to his daughter Elizabeth, the defendant in this suit. His wife joined in this conveyance. At the same time he made a bill of sale of all of his personal estate to Elizabeth. He sent the deed to the clerk's office to be recorded, by the person who drew it, and it was delivered for that purpose to the clerk on the 24th of March. He died on the 2d day of August, 1885, leaving a widow and three children, Elizabeth, Ellen, and Charles, himsurviving. Charles has instituted this suit for the purpose of testing the validity of this conveyance to his sister Elizabeth. The only question is, was the grantor mentally capable of executing the deed?
It is admitted by Elizabeth that her father became absolutely insane about six months before he died, and that during that period, for no small part of the time, it was necessary to keep him confined in the room; and the proof shows that he was also handcuffed to prevent him from doing great mischief. But she insists that when the deed was executed her father was in sound mind, and that he perfectly understood what he was doing. She says that the deed was given to her, and that, at the time of delivery, her father said that he wanted to make her a gift, and that he only exacted of her a promise that she would take care of him during his life-time. That was the only consideration of the deed, and that was not expressed in the deed, or in any other writing, and I believe was not exacted until after the deed had been recorded. But some promise to the same effect was exacted from Elizabeth upon the delivery of the bill of sale in full. The father had no other estate. He thus stripped himself of all his property at the age of 72, when in condition of great bodily infirmity, taking no obligation as security that he might have the benefit of the alleged consideration, except the word of his daughter. However honest and true the daughter might be, and however willing to discharge all her obligations, her father had not the slightest security against her sudden death, nor against the lawful rights of her husband, nor against her creditors in case of her contracting liabilities. It would seem as though all these things had not been considered, if at all, until after the deed was recorded; for it contained none of the obligations which the daughter had verbally made to her father. To say that the fact that a man so old and so feeble in body should, in such a manner, dispose of all his property, awakens suspicion, is only to state that which every thoughtful man will assert upon the hearing. Therefore, whether this deed will stand or fall demands the most careful consideration. It is of some importance to notice that Elizabeth assumed no new obligations or relations outside of this agreement contained in the bill of sale which she signed, and her verbal promise to her father to take care of him; for she had been living with her father since 1882, as also had her two children. It appears that by that time her husband left her, from whom she procured a divorce after the death of her father. Her children lived in the house of their grandfather during the entire period with their mother. It is true that during several years of this time Elizabeth went out nursing, for which she received $8 per week, whenever employed, which she always placed in the common fund with the earnings of her father in his store and other avocations. But I understand her to say that for the last 12 years of their lives she remained home with her father and mother. There is nothing to show that the mother exacted any attention from the daughter during the life-time of the father. So far as the testimony develops the declining condition of the father it will appear as we proceed with the case. I infer that the mother continued to preside over the affairs of the household during this entire period. Prior to the delivery of the deed she, together with her sister Ellen, took care of the father in his affliction; and, after the delivery, the testimony shows that Ellen was very faithful in her attendance upon him, and in her efforts to make her father comfortable.
But to proceed. Was the father so mentally unsound as to be incapable, in the eye of the law, of making this gift of all his real estate to his daughter? Charles, the complainant, in his testimony, makes mention of some facts which throw a great deal of light on the question. Charles was not living at home, but was home frequently during the latter years of his father's life-time. In March, 1883, the same month in which the deed was made, he moved into the city, near by where his father was living. He says that his sister Elizabeth expressed her satisfaction at his coming so near, because he could then helptake care of their father; she saying, "you can do his marketing for him, for he is not fit." If anything like this took place, it certainly must have been before the execution and delivery of the deed; for from that time Elizabeth must have considered herself responsible for all the business transacted with the grocery store, and also all the preparations for the household. Charles says that he cleaned out a well, and that in doing so he threw some bricks out of it, and that afterwards he saw his father throwing them back in the well. When he asked him what he was doing that for, he said that he was throwing these stones (bricks) into the well. He says that about the same time he gave his father some small chickens, and that afterwards he saw him digging a small trench under the barn. When he asked him what he was doing that for, he said to let the eggs roll out, and that the chickens were very small and were not laying any eggs. He says that about the same time he saw his father having some great difficulty with his horse, which he was about driving, and upon examination learned that instead of buckling the breeching straps around the shaft he had buckled them around the trace, and insisted that that was right. Charles also swears that as early as in 1863 he had to do the marketing for his father, because he had not mind enough to do it. He also says that his sister Elizabeth sent for his son to come and go around with their father to aid him in delivering orders. If this be true, he was then so feeble in mind as to be unable to find the place of his customers in the place in which he always lived, and with whom he had done business for a great many years. In 1883 he observed that his father would sit upon the porch, and that his neighbors would pass him without his paying any attention to them or noticing them. Charles says that he asked Elizabeth how this property came to be deeded to her, and that she said that her father had gone security to one Horner for about $22, and that she had him deed the property to her to keep Horner from selling him out; but just as soon as that became settled she was going to deed the property back, saying to her brother, "you are all right, anyhow, for I have made a will willing it to you and Ellen, "and that she had done this for fear that something might happen to her. On another occasion after her father's death, when Charles spoke to her about it, she said "Just let it be so till after mother dies," when she said she would give Charles his share, but would give Ellen's to her children. The mother died in March, 1888. While it is true that Elizabeth denies the principal part of these foregoing statements, it is certainly very remarkable if they should have been made up solely for the occasion. Ellen, the other daughter, was a witness. She was married in 1876. She says that in the month of March, 1884, the month in which the deed was made, she saw her father very often; was home every week, sometimes everyday; that for the last 10 years of his life he was afflicted with cancer under his ear, and also with gout; that at least for six months before this time he was like a little child; was simple in his talk, could not converse with you at all, and that he was so for three years and longer prior to his death; that he had attacks of apoplexy frequently; that he was not fit for any business; that although he had this store he did not attend to it himself, but after she left home her sister Elizabeth attended to it. She says that in 1883 he had gatherings in his head, and was out of his mind, and would follow you around as though he wanted to ask for something but could not. He would imagine that he saw things that did not exist; would look out of the window, and would say there was the river, and steam-boats were coming, when there was neither river nor boats. On one occasion during this year he looked out of the window, and said "Hey!" when Ellen asked him what was the matter, to which he replied, "Bradway, the black man, was out there, after the horse," when no one was there. On one occasion he insisted that hogs were in the yard, when none were. On the 3d of May, 1884, after the delivery of the deed in question, Ellen was with her father at the sale of his personal property, where he bid on a great quantity of articles that he seemed to have nouse for whatever, and when his daughter asked him what he bought he said he did not know. It was during this period Ellen says he could not converse with you at all. When he undertook to express himself he would stop in the middle of a sentence and say "Piddle!" and they would try and help him out with a sentence, and then he would say, "Oh, that haint it at all." Ashbel Lincon of Philadelphia, grocer, was produced as a witness. He says that Mr. Clark came to buy goods of him till April, 1883; that about six months before this time he brought a young man with him, and, as I understand him, the young man was along for the purpose of assisting in the selection of the goods, Mr. Clark not being regarded as competent for that business. He also says that for a long time before that he thought that Mr. Clark was not fit to do business. He says that Mrs. Kirkpatrick said to him that she was going to get her father to transfer to her all his property, as he was no longer capable of doing business, directing him to charge all sales to her, saying that she would pay cash for them. William Wilkins, a witness who had been a longtime intimate with Mr. Clark, said he noticed a decided change in him; thinks that he was affected by a stroke of lightning which he received several years before. Says at times he seemed to have no mind at all. He would talk upon one subject, but before finishing it he would go to another; that he had noticed this all of two years before his death. Ira Williams, a witness who had known Mr. Clark for 25 years, says during the latter period of his life he would sometimes know him and sometimes not, and that this was his condition at least three years before his death. Sometimes he appeared to be incoherent in his conversation. He also added that at times his mind seemed to be perfectly right. Mr. Cattell, a witness doing business in the same town, as a lumberman, said that Mr. Clark came and ordered lumber of him which he sent to his house, and, after he had sent it, Mrs. Kirkpatrick came and requested him not to let her father have any more lumber, saying he did not know what he was doing, and had not any need for it. He also says that from that time he noticed a great change in Mr. Clark. This purchase of the lumber was in the spring of 1884, about the time of the execution of the deed, and about the time his son John gave him the chickens spoken of.
These facts and circumstances produce a decided impression on my mind. Whether the legitimate conclusions to be drawn therefrom have been overcome or not will appear as we proceed with the testimony offered by the defendant. The first witness produced was Dr. Henry C. Clark. He was not a relative, although of the same name, but he had known the grantor for 35 years, and had visited him occasionally. This physician had a partner who also visited the grantor in these years 1884 and 1885, who was not called as a witness. Dr. Clark says that he was acquainted with the mental condition of the grantor to some extent. He says that Mrs. Kirkpatrick and Mr. Charles Jessup, the latter having been sent for, waited upon Dr. Clark, and inquired respecting the mental condition of her father. This was after the execution of the deed. There is no doubt that Mr. Clark had very severe attacks of some disorder, and Dr. Clark says when he was called he was always called in haste, but got there after the attack was over, and found him very feeble in mind. He says he visited him in January, 1883, and in February, 1884; three times in June, 1884; three times in July, 1884; once in December, 1884; three times in February, 1885; once in July; and once in August,—the day before he died. Dr. Clark says that when Mrs. Kirkpatrick and Mr. Jessup called to make these inquiries, he said to them he thought her father was capable of signing a deed. The deed was signed on the 22d day of March, but the doctor had not seen him professionally nor otherwise, so far as the testimony shows, since the 4th day of February, previous, nor did he see him again thereafter, professionally or otherwise, until the 11th day of June, and the plain inference from the plain statement of the doctor first above given is that, at the time when he saw Mr. Clark professionally, he was suffering more or less violently fromsome mental disorder or derangement. His opinion, therefore, did not rest upon any known condition of the grantor's mind at the time of the execution of the deed. The doctor, in speaking generally of the condition of Mr. Clark, said that in his judgment there was a general wearing out of the system and softening of the brain, as he thought. The doctor said that when called upon by the counsel of the complainant, and inquired of respecting the condition of Mr. Clark, he said that as he had seen him only when he had his violent attacks he scarcely felt competent to testify. Mr. Charles C. Jessup, who drew the deed, said that he understood he was sent for by Mr. Clark, and that he went and found him in his store. Mr. Jessup relates what took place. He says that Mr. Clark said to him that Elizabeth had been waiting on him and on Mrs. Clark, and that they had been depending on her, and that they would have to depend upon her in the future, and he meant to convey the lot to her for what she had done and would do for him. He said he could not pay her. He wished he had more to give her. He says that he then asked him if he wanted to make a deed or a will, and he said that he wanted to deed it to her; that he wanted her to have it at once. Mr. More, an attorney at law who lived in the same place, prepared the deed. He says that after the deed was prepared Mr. Clark was taken sick, subsequent to which arrangements were made to have it executed, and that he went to the store to see Mr. Clark for that purpose, and read the deed to him. He says Mr. Clark remarked to him that Elizabeth had been helping him, and that he owed considerable money, mentioning, particularly, a claim of $300, saying that she was to pay all of these debts. Mr. Clark then signed the deed, after which Mrs. Clark signed and acknowledged it, and then the bill of sale referred to they executed. This witness says that Mr. Clark seemed to be very clear as to what he was doing, and that this was the first time that he had seen him with regard to this transaction. The daughter Elizabeth was in the store all the time. Elizabeth insists that while her father was feeble he nevertheless attended to the store until he was out of his mind, and that he was not out of his mind until about six months before he died; which event took place in August, 1885, a year and four months after the execution of the deed. She says that she never asked her father to make this deed, nor did she know that he was going to do it. She says they all remained in the same house as before, and that she attended in the store as she had done before. Although she had said her father had not been out of his mind until the last six months of his life, she afterwards distinctly stated that for two or three years of his life he had these violent attacks which affected his mind for a while, temporarily, after which he would be all right again, and go about the country and buy up produce as before. She says two or three days after the deed was prepared she got possession of it; that her father brought it to her and said: "There is a present for you for taking care of me all my life." She says that he then asked her if she would take care of him till he died, and that she promised that she would. On cross-examination she said she knew nothing of his intention until Mr. Jessup was there; that she then heard her father say what he was going to do; and that he then asked her if she would take care of him till he died. Mr. Barker, a witness who knew Mr. Clark very well, says that he saw him walking up and down the street by his office during the latter years of his life, and that he was growing very feeble, but he never saw anything like trouble in his mind, yet he (the witness) would frequently talk to him. Elizabeth's daughter was a witness. She is now of the age of 23. She lived with her grandfather all of the latter years of his life. She noticed sometimes the condition of his mind was wrong before he died. She says she cannot tell how long, but thinks it was not so long as two years nor a year, but thinks it was about six months.
I conclude that the testimony offered by the complainant shows that the grantor had became mentally unsound, and incapable of transacting any business, and that this condition had continued so long before the execution and deliveryof the deed to Elizabeth as to make it constant or habitual as contradistinguished from temporary or intermittent. If I am right in this, the presumption of law is that such condition of mind continued until the contrary was shown. Turner v. Cheesman, 15 N. J. Eq. 243; Goble v. Grant, 3 N. J. Eq. 629; Whitenack v. Stryker, 2 N. J. Eq. 8; Den v. Moore, 5 N. J. Law, 473; White v. Wilson, 13 Yes. 87; Hall v. Warren, 9 Ves. 605; Attorney General v. Parnther, 3 Brown, Ch. 441; Rogers v. Walker, 6 Pa. St. 371, 47 Amer. Dec. 470; Cochran's Will, 1 T. B. Mon. 264, 15 Amer. Dec. 116, and notes; College v. Wilkinson, 9 N. E. Rep. 167. This view excludes the idea that his derangement was intermittent or dependent upon, or consequent to, some violent attack of bodily disease, which Elizabeth insists was the fact, and which Dr. Clark suggested might be the case, although he did not so affirm, because he could not, he never having seen his patient except when he was under the influence of some violent attack, or only measurably recovered therefrom. Indeed the strong inference from Dr. Clark's testimony is in corroboration of the complainant's view of this case; for he said, from what he had observed, that the trouble with the grantor was a gradual softening of the brain. If this be the true view, (and very many circumstances corroborate it,) it is very difficult to reject the view of the complainant, and the presumption which arises therefrom, and to assent to the insistment that there were temporary cessations of this disease of the mind after the many repeated manifestations of it which seem to be so well established.
1. It may be asked, why did Elizabeth and Mr. Jessup make inquiry of Dr. Clark respecting the capacity of the grantor after the deed was executed and delivered? "What prompted them to take this step? Was it not some trouble some conviction that the weakness of the father's mind still continued, and that he would not have disposed of all of his estate in the manner in which he did if he had been in his right mind? This conduct upon their part I cannot explain upon any other theory than that one or both discovered something that gave alarm, and moved them to endeavor to fortify what had been done by securing the approval of Dr. Clark, even though it was after the event; and they take his opinion without requiring him to make an examination of the grantor at that time. "Why was this? Were there then present manifestations of insanity, and did they not dare to submit to an examination by one so competent to judge? Had they done so, it would have aided the court greatly in determining whether or not, at this advanced stage, the grantor was possessed of lucid intervals. It is important to note that after instructions had been given for drawing the deed the grantor was taken sick, so that the deed could not be executed as early as was intended. The evidence all shows that when sick the grantor had these mental paroxysms or prostrations very violently. The doctor says so, and Elizabeth admits it. I cannot but infer that, having been sick between the time of giving instructions for the deed and the execution of it, he was coming out of one of these mental prostrations at the time of the execution, and that it was this fact, known to Elizabeth, which animated her to make the inquiry which she did of Dr. Clark. Beyond controversy, there must have been some such fact; something arising out of the existing condition of the grantor's mind that led her to make the inquiry. There is no proof that any suggestion whatever came from without, or that any one had in any manner questioned the condition of the grantor's mind.
2. But the foregoing thoughts lead inevitably to the conclusion that Elizabeth had real cause of apprehension as to the condition of her father's mind. This is apparent from the fact that he surrendered to her all of his estate with the frailest security to himself of the protection which Elizabeth admits she was to afford to him. According to her statement she was to provide for him during the remainder of his life. To effect this the only security he took from her was her word, and the covenant found in the bill of sale embracing only the personal property. Would a man of sound mind, who had spent along life in saving only about $4,000 worth of property, thus carelessly place it all beyond his control? As above intimated, it was impossible to prevent the husband of Elizabeth from asserting the rights of curtesy which the law gave him in case he survived her, or, in case of her unfortunately contracting debts, from preventing her creditors from sweeping everything away by execution.
3. But if the grantor had any intention whatever it was to secure to himself a maintenance for the remainder of his life; but the very imperfect manner in which he performed this transaction affords the clearest proof of the imperfect condition of his mind. To my mind, this consideration has great weight. The whole argument concedes that it was the purpose of the testator to provide for himself, and that everything else was subsidiary. This, I think, is the most favorable view for Elizabeth that the case will admit of. Without the idea that the father was to have some such consideration as maintenance during the rest of his life, I can find nothing whatever for the defense to rest upon; for if the claim were that it was an absolute gift,—a simple preference by a parent in favor of one child, shown by giving everything under his own dominion to her,—I think every court would say that the grantor in this case must have still been laboring under mental derangement. But the question is not whether he intended to make a gift, simply, but a gift with certain conditions beneficial to himself, and whether he secured those conditions in any such effectual manner as an ordinary person enjoying his mental faculties would have done. Independent of Elizabeth's admission, the bill of sale plainly expresses the intention of the grantor, if he had any certain intention; but I think the fact that such expression was given in the bill of sale to what is claimed was his intention, and no reference whatever made to it in the infinitely more important instrument,—the deed conveying the lot,—is very strong evidence of the mental unsoundness of the grantor.
4. Although it is usually very unsafe to give much effect to any presumption arising from the absence of witnesses or of testimony, yet in this case I cannot but regard it as of some importance. Elizabeth says that after her father had these violent attacks he soon was restored to his mental equilibrium, and attended to all his grocery business as in former years. She says that he would go about the country among the farmers gathering up produce for his trade. Now, since this was the issue in this cause, and since a great many of these persons with whom he dealt must have been accessible to her, the fact that none of them are offered makes irresistibly against the defendant. And this conclusion seems to be more than justified by the testimony of Mr. Horner, the Philadelphia merchant with whom the grantor had been dealing for many years, who swears that he thought the grantor unfit to do business for a long time before they sent the young man with him to assist him in making his selection of goods, because of his conceded incapacity to do it him self as he had formerly.
5. Elizabeth's insistment of lucid intervals seems to be totally overthrown by the fact last mentioned, viz., that the grantor went from Woodbury to Philadelphia to make his purchases, and the family, of whom Elizabeth is one, found it necessary to put him in charge of another person. Most clearly he was not then in one of his mental paroxysms resulting from a violent attack of some physical disease. Whenever he may have had the last attack, he was not only out of the doctor's hands, but out of the house, and physically capable of making a journey to the city. It requires no multiplication of words to show the force of those facts in answer to Elizabeth's claim.
6. In support of the last point I would call attention to the testimony of the daughter Ellen, the son John, and all of the other witnesses called on the part of the complainant. The testimony of every one of them refers unmistakably to periods of time when the grantor was not under great bodily infirmity, nor confined to his house, but was actively about his premises, out of doors. Ihave not thought it necessary to deal with that branch of the case which arises out of the testimony given by Ellen and John, to the effect that Elizabeth told them that she had only taken title to the property temporarily, and that she would deed it to them, or that she had made a will, all of which was so flatly contradicted by Elizabeth, because in my opinion the branch of the case to which I have given attention is the more important, and hence it is not necessary to determine where, under the rules applicable in such cases, the preponderance of testimony is, even though there be two against one. I think the deed under which the defendant claims should be declared void, with costs.