MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Plaintiffs, as the heirs of Harriet Estey, deceased, and Eleanor Cloke, as administratrix, brought this action to remove a cloud on the title to certain described real property in Butte, alleged to result from a deed dated November 21, 1927, and allege, among other things, that after the death of Harriet Estey in May, 1934, defendant placed the deed of record, purporting to be signed by Plarriet Estey, conveying the property in question to him. They further allege this deed to be void for the reason that Harriet Estey was insane at the time of its execution. They further allege that it was procured by undue influence on the part of the defendant, that it was without consideration, and that it was never delivered to defendant during the lifetime of Harriet Estey. The complaint asked that the deed be declared void, and that plaintiffs have possession of the property and recover the rental value thereof during the time that it was in possession of defendant.
The answer is a general denial but admits that defendant placed the deed of record. It also contains an affirmative defense or cross-complaint, the substance of which is that defendant furnished most of the money used to acquire the property in question, and alleges that defendant and Harriet Estey were and ever since October, 1916, until her death have been husband and wife, and alleges that defendant is the owner of the property. The reply puts in issue the material allegations
of the answer and cross-complaint, and alleges an affirmative defense to the cross-complaint to the effect that defendant is estopped from contending that he and Harriet Estey were ever married by reason of the fact that he asked for letters of administration of her estate on the theory that he was the surviving husband and that the court denied the application and appointed plaintiff Eleanor Cloke as administratrix, and that the order of the court has become final.
The cause was tried to the court without a jury, and the court found that the deed made by Harriet Estey to the defendant is void, and ordered the same expunged from the record and ordered the property to be delivered to the administratrix and awarded judgment to the plaintiffs for rental. Defendant has appealed from the judgment.
The point determinative of the case is whether the deed of November 21, 1927, is void for any of the reasons contended. There was no evidence to support the allegation that the deed was executed as a result of undue influence, hence that feature of the case may be eliminated from consideration. As to the failure of consideration, the evidence is without dispute that defendant ever since 1916, and up to the time of her death, lived with Harriet Estey as if they were husband and wife. Whether the relationship constituted a common-law marriage we need not determine. Suffice it to say that, so far as consideration is concerned, defendant furnished most of the money with which to acquire the property in question. The initial or down-payment of $1,200 was paid by each furnishing $600. Defendant from 1916 until the death of Harriet Estey was employed in the mines in Butte and turned over all his earnings, amounting to more than $16,000, to Harriet Estey, and from them payments were made on the property in question. During the World War he served in the army and made to her monthly payments of $18 per month during that period. This evidence is without dispute, and to say that the deed was executed without consideration finds no support in the record.
As to delivery of the deed, the evidence is without dispute that, when it was executed, it was handed by Harriet Estey
to the defendant, and that she said to him at the time, “Here is your deed. Go and do whatever you want to. Put it on record or do whatever you want to.” Ever since its execution and delivery, the deed has been in the possession of the defendant and, hence, we see no basis for the contention that the deed was never delivered. (Compare
Sylvain
v.
Page,
84 Mont. 424, 276 Pac. 16, 63 A. L. R. 528; 8 R. C. L. 999;
Plymale
v.
Keene,
76 Mont. 403, 247 Pac. 554.)
The only remaining ground for asserting that the deed was void, and the one that is principally relied upon, is that Harriet Estey at the time of its execution was insane and mentally incompetent to transact business. In considering this question we shall briefly review the evidence relied upon.
Harriet Estey was the wife of John Estey until April, 1912, when they were divorced. The plaintiffs are the offspring of that marriage. Some time before the divorce was granted the relationship between John and Harriet was strained. It seems that Harriet accused John of paying attention to other women. Some time before the divorce was granted she met him on the street and shot him. The wounds inflicted were not fatal. There was evidence also that she, on different occasions, took the mattress from her husband’s bed and placed it in the rain and mud, and took an axe and chopped his folding bed. There is evidence, also, that she drove one of her sons and her daughter from the home. There is evidence that before she was divorced from John Estey, Mrs. Estey was seriously ill and had been given up by the attending physician, but that she was restored to consciousness and that she thereupon stated that she had been in a beautiful place and expressed regrets that “they did not let her go.” She repeated this vision many times thereafter. These and other acts which may be considered symptoms of paranoia all occurred prior to 1916. Plaintiffs produced her family doctor who attended her when the children were born and occasionally thereafter, and he gave it as his opinion that she was suffering from delusional insanity. He stated that he thought it problematical or doubtful whether it was curable or not. He said that he had advised Mr. and Mrs. Estey and one
of the children that she should be confined in Warm Springs because he regarded her as dangerous to the family and her friends. This advice was given before she shot her husband. One of the plaintiffs, Howard Estey, testified that the doctor made this recommendation to him. He replied as follows: “Doctor, you wouldn’t advise me to do anything like that to my own mother?” The reply was: “I will tell you, Howard, a lot of people got a horror of an insane asylum but the insane asylum is just like a hospital. They are treated down there and there may be a chance with your mother with the right environment and regular hours and proper care and medicine that she would come out of it. ’ ’
The record discloses that Mrs. Estey and defendant commenced living together as husband and wife in the year 1916, under her proposal that they do so. Neighbors and friends testified that they lived happily and peaceably together, and that she was then in a normal state of mind and amply able mentally to transact business, and that she held membership and an important office in a national woman’s organization.
Plaintiffs also rely upon the cross-examination of Dr. James, a witness called by defendant and who on direct examination had testified that Mrs. Estey was sane from the time he first treated her in January, 1933, until her death.
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MR. JUSTICE ANGSTMAN
delivered the opinion of the court.
Plaintiffs, as the heirs of Harriet Estey, deceased, and Eleanor Cloke, as administratrix, brought this action to remove a cloud on the title to certain described real property in Butte, alleged to result from a deed dated November 21, 1927, and allege, among other things, that after the death of Harriet Estey in May, 1934, defendant placed the deed of record, purporting to be signed by Plarriet Estey, conveying the property in question to him. They further allege this deed to be void for the reason that Harriet Estey was insane at the time of its execution. They further allege that it was procured by undue influence on the part of the defendant, that it was without consideration, and that it was never delivered to defendant during the lifetime of Harriet Estey. The complaint asked that the deed be declared void, and that plaintiffs have possession of the property and recover the rental value thereof during the time that it was in possession of defendant.
The answer is a general denial but admits that defendant placed the deed of record. It also contains an affirmative defense or cross-complaint, the substance of which is that defendant furnished most of the money used to acquire the property in question, and alleges that defendant and Harriet Estey were and ever since October, 1916, until her death have been husband and wife, and alleges that defendant is the owner of the property. The reply puts in issue the material allegations
of the answer and cross-complaint, and alleges an affirmative defense to the cross-complaint to the effect that defendant is estopped from contending that he and Harriet Estey were ever married by reason of the fact that he asked for letters of administration of her estate on the theory that he was the surviving husband and that the court denied the application and appointed plaintiff Eleanor Cloke as administratrix, and that the order of the court has become final.
The cause was tried to the court without a jury, and the court found that the deed made by Harriet Estey to the defendant is void, and ordered the same expunged from the record and ordered the property to be delivered to the administratrix and awarded judgment to the plaintiffs for rental. Defendant has appealed from the judgment.
The point determinative of the case is whether the deed of November 21, 1927, is void for any of the reasons contended. There was no evidence to support the allegation that the deed was executed as a result of undue influence, hence that feature of the case may be eliminated from consideration. As to the failure of consideration, the evidence is without dispute that defendant ever since 1916, and up to the time of her death, lived with Harriet Estey as if they were husband and wife. Whether the relationship constituted a common-law marriage we need not determine. Suffice it to say that, so far as consideration is concerned, defendant furnished most of the money with which to acquire the property in question. The initial or down-payment of $1,200 was paid by each furnishing $600. Defendant from 1916 until the death of Harriet Estey was employed in the mines in Butte and turned over all his earnings, amounting to more than $16,000, to Harriet Estey, and from them payments were made on the property in question. During the World War he served in the army and made to her monthly payments of $18 per month during that period. This evidence is without dispute, and to say that the deed was executed without consideration finds no support in the record.
As to delivery of the deed, the evidence is without dispute that, when it was executed, it was handed by Harriet Estey
to the defendant, and that she said to him at the time, “Here is your deed. Go and do whatever you want to. Put it on record or do whatever you want to.” Ever since its execution and delivery, the deed has been in the possession of the defendant and, hence, we see no basis for the contention that the deed was never delivered. (Compare
Sylvain
v.
Page,
84 Mont. 424, 276 Pac. 16, 63 A. L. R. 528; 8 R. C. L. 999;
Plymale
v.
Keene,
76 Mont. 403, 247 Pac. 554.)
The only remaining ground for asserting that the deed was void, and the one that is principally relied upon, is that Harriet Estey at the time of its execution was insane and mentally incompetent to transact business. In considering this question we shall briefly review the evidence relied upon.
Harriet Estey was the wife of John Estey until April, 1912, when they were divorced. The plaintiffs are the offspring of that marriage. Some time before the divorce was granted the relationship between John and Harriet was strained. It seems that Harriet accused John of paying attention to other women. Some time before the divorce was granted she met him on the street and shot him. The wounds inflicted were not fatal. There was evidence also that she, on different occasions, took the mattress from her husband’s bed and placed it in the rain and mud, and took an axe and chopped his folding bed. There is evidence, also, that she drove one of her sons and her daughter from the home. There is evidence that before she was divorced from John Estey, Mrs. Estey was seriously ill and had been given up by the attending physician, but that she was restored to consciousness and that she thereupon stated that she had been in a beautiful place and expressed regrets that “they did not let her go.” She repeated this vision many times thereafter. These and other acts which may be considered symptoms of paranoia all occurred prior to 1916. Plaintiffs produced her family doctor who attended her when the children were born and occasionally thereafter, and he gave it as his opinion that she was suffering from delusional insanity. He stated that he thought it problematical or doubtful whether it was curable or not. He said that he had advised Mr. and Mrs. Estey and one
of the children that she should be confined in Warm Springs because he regarded her as dangerous to the family and her friends. This advice was given before she shot her husband. One of the plaintiffs, Howard Estey, testified that the doctor made this recommendation to him. He replied as follows: “Doctor, you wouldn’t advise me to do anything like that to my own mother?” The reply was: “I will tell you, Howard, a lot of people got a horror of an insane asylum but the insane asylum is just like a hospital. They are treated down there and there may be a chance with your mother with the right environment and regular hours and proper care and medicine that she would come out of it. ’ ’
The record discloses that Mrs. Estey and defendant commenced living together as husband and wife in the year 1916, under her proposal that they do so. Neighbors and friends testified that they lived happily and peaceably together, and that she was then in a normal state of mind and amply able mentally to transact business, and that she held membership and an important office in a national woman’s organization.
Plaintiffs also rely upon the cross-examination of Dr. James, a witness called by defendant and who on direct examination had testified that Mrs. Estey was sane from the time he first treated her in January, 1933, until her death. On cross-examination he admitted that one of the symptoms of paranoia is a homicidal intent; that the destruction of property without cause, headaches and delusions of persecution by one’s own family are also symptoms of paranoia; that paranoia is looked upon as incurable by the medical profession, when it is firmly developed. On redirect examination, however, the doctor testified that a paranoiac would not be able to transact business in a normal way and successfully over a long period of time, such as eighteen years as was done by Mrs. Estey, and that when he treated her in 1933 he found no evidence of paranoia, other than nervousness which is found in cases other than paranoia.
We must in this case determine from the record what the mental condition of Mrs. Estey was in November, 1927, at the time the deed in question was executed. In doing so we
keep in mind the well-established rule that if there is any substantial evidence to support the judgment of the trial court, its findings will not be interfered with. The evidence, however, of mental incapacity is all directed to a time long prior to 1927. It is true that Dr. Moore testified that he saw Mrs. Estey occasionally after she shot her husband, but whether he had occasion to treat her in the year 1927 does not appear. While he gave it as his opinion that it was problematical about her ailment being curable, nevertheless there is evidence by the plaintiff Howard Estey that the doctor told him, in substance, that with proper environment there was a chance that she might “come out of it.” All of the evidence in the record relating to the time after her associations with the defendant indicates that he furnished the proper environment. At any rate, after she lived with the defendant the evidence shows without conflict that she was of sound mind and able to transact business. If we concede that Harriet Estey was incompetent at and prior to the time she shot her husband and at the time she did the other things indicating a lack of rationality, we still must find from the record that in November, 1927, when the deed in question was executed, the evidence shows she was of sound mind, and the record is barren of any evidence that at that time she lacked capacity to make the deed.
Contention is made that the mere fact that she lived with the defendant under the circumstances under which she did, and at the time when she had grown children, is itself sufficient to show a lack of mental balance. This may be true but yet not sufficient to show a lack of capacity to understand what she was doing with respect to her property. The test which we must apply here is stated in 18 C. J. 218, as follows: “A deed will be invalidated by mental incapacity on the part of the grantor. In order, however, to render a deed void on this ground it should appear that the grantor was laboring under such a degree of mental infirmity as to make him incapable of understanding the nature of the act, the test being not merely that the grantor’s mental powers were impaired, but whether he had sufficient capacity to understand in a reasonable manner
the nature and effect of the act which he was doing. "Where such capacity exists, mere weakness or infirmity of mind will not, in the absence of fraud or undue influence, invalidate the deed. Nor is a person deprived of the capacity to convey by reason of the fact that his conduct and sentiments are contrary to good morals, or by reason of the fact that his habits have changed from good to bad or indifferent. ’ ’
The record discloses that after this deed was made defendant executed a deed to the same property to Harriet Estey which deed was placed in her possession and retained by her until her death. Plaintiffs contend that thereby defendant re-conveyed the property to Mrs. Estey and that therefore he has no interest therein. The evidence discloses that this deed was not to take effect until death, and not then unless defendant died first. Since Mrs. Estey died first, that deed never became operative.
Contention is also made that the moneys advanced by defendant toward the purchase of the property should, on the record, be treated as gifts to Mrs. Estey. This contention does not find support’ in the evidence.
Finding no basis for the finding and judgment of the trial court, the judgment appealed from is reversed and the cause remanded with direction to enter judgment for the defendant.
Mr. Chief Justice Johnson and Associate Justices Erickson and Morris concur.