Turner v. Hinchman

79 S.E. 18, 72 W. Va. 384, 1912 W. Va. LEXIS 1

• Court: West Virginia Supreme Court
• Decided: December 19, 1912
• Status: Published

Opinions

BRANNON, PRESIDENT:

By a deed dated 29th May, 1905, James H. Hinchman conveyed to his two sons, George B. Hinchman and Joseph W. Hinchman, five tracts of land in Logan County aggregating 1162 acres. This is a suit brought by other children of James H. Hinchman to annul and set aside the deed on'the grounds that James H, Hinchman was mentally incompetent to make it, and that his-sons obtained it by undue influence upon their father. The case resulted in a decree dismissing the suit, from which William Turner and wife and other parties have appealed.

The evidence in the case is from many witnesses on both sides'It is useless to recite it. We have come to the conclusion, from the evidence and circumstance of the case, that James H. Hinch-man was mentally incompetent to make the deed, from weakness of mind and undue influence exerted upon him by his sons, leaving his mind not free.

Opinion evidence is given on both sides to show that he was competent and incompetent. Perhaps we may say that this oral evidence of incapacity is stronger than that of his capacity, because coming from persons who were with Hinchman more than those asserting his capacity and better able to judge. But we test the case more by the circumstances, and when we add to those circumstances beyond dispute the oral evidence of incompetency, we think such oral evidence has great weight taken along with such circumstances. James H. Hinchman when he made that deed had attained the great age of eighty-eight years. He was then, and for some time before had been, afflicted with chronic diarrhoea angina pectoris and senile infirmities. He was confined to his bed most of the time. For several years not going otit. His acts touching his valuable estate were utterly inconsist-exit with each other, and tend to show that fye really did not know his estate ordts value, and had no fixed ideas as to the object of his bounty. He had left six children, the two sons to whom the deed in question was made and four daughters.' See how unreasonable and inconsistent were his acts as to his land. By a deed the 19th of March, 1904, he conveyed all these lands to one son, George R. Hinchman. Though not the owner of the land after that deed, yet he made a will on the 20th of August, 1904, at the instance of Joseph Hinchman, saying that he understood that a deed was on record purporting to be signed by him, conveying to George R. Hinchman said land, and reciting that at the date of the deed he was sick and unable to transact business of any character on the account of ill health and age, and saying that George Hinchman that day prepared and brought it to him in the night time and without reading it insisted on his father executing it, and had paid nothing, and had thereby obtained from him, against the interest of his other children, and without just reason to do so, all the real estate owned by him; and saying that it was not his purpose to discriminate against his other children and take from them an equal share of his estate in favor of George Hinchman; and saying that George had obtained the deed by misrepresentation, undue influence and .improper conduct, and . that he, the father, desired to annul it and to give all his children equal shares; and by said will he devised said land equally among his children. James IT. Hinchman had been recorder or Logan County and had been a member of the House of Delegates in days gone by, and yet his mind had so far weakened- that he. did not know that he could not by will cancel the deed to Ms son or give the land to others. The old man thought he was still owner of the land. What his next act? George Hinch-man likely heard of that will. He went to his father with a prepared deed and had him execute it on the 15th of September, 1904, conveying the same land by more particular description, saying this second deed was to cure any defect that might exist in the former deed by reason of vagueness of description. The former deed seems sufficient in this respect, and the true reason likely was to get the father’s confirmation and doubly bind him, and to frustrate and defeat the will of 30th of August, 1904. On the stand he said that he got up this deed to make assurance- doubly sure. He was after the lion’s share. Now, on tbe 12th of September, three days before this confirmatory'deed, he wrote his father, as is not denied, that he had just been fixing to come to see him, when a child took sick. The letter went on to say, “I have that deed made to you all right, and will have it recorded today. I have had it wrote some time, but never got a notary here, so Marg could sign it. I will be up as as soon as I can.-” This shows that his father had requested a reconveyance, and that George acceded to it; but lo, three days later, this reconveyance turns out to be one by which the old deed to George is approved and re-executed by his father. This goes to show, not only undue influence and fraud, but weakness of mind of the father. If competent, why would he consent to a deed confirming a deed which he had asked to be revoked ? What the next act? In October, 1904, James H. Hinehman brought a suit against George Hinehman to cancel the two deeds which James H. Hinehman had made to him, alleging in his bill that George R. Hinehman had advised him to convey his land to him so that it could be better divided among his children, and promising to hold it for them all; and that he came with the deed of the 15th of September at night when the old man was sick in bed and that he executed the deed,-being at the time so sick and feeble that he could not understand it, and that it was procured by fraud and misrepresentation. He alleged that he wanted all his children to share, and that George had promised to reconvey, as he could not make a division between the children, and that he, the father, thought he was only getting back his land by this deed. This is very likely. He made his son Joseph his attorney in fact to attend to all his business, and Joseph was active in the prosecution of this suit by producing witnesses and taking other steps in it. As witness the old man swore in a deposition in that suit as to the September deed that he thought it gave him his land back, as George had promised. A compromise was made of that suit and it was dismissed. It seems clear, that by the compromise the land was to be conveyed back to James H. Hinch-man and divided between the six children equally. "By deed dated the 29th of May, 1905, George R. Hinehman conveyed the land back to his father, and by deed of the same date the father conveyed the same land to his two sons, George and Joseph Hinehman, the deed in controversy in this .case. On June 23, 1905, the father James H. Hinehman made a will by which he confirmed the deed which he had made to George and Joseph Hinchman of the 29th of May,, 1905. If that deed was good, why this will ? Did the sons fear as to its validity and desire their father to confirm it by will ? The old man seems to have thought that he still owned the land and could devise it. A-little later on, on the 27th day of July, 1905, James H. Hinch-man made another will, which was probated. This will states that certain litigation between James H. Hinchman and George R. Hinchman had been compromised, and that the compromise was not carried out according to the agreement, and that it had come to his knowledge that a deed was on record purporting to have been made by him, James H. Hinchman, on the 29th of May, 1905, conveying all his real estate to Joseph W. Hinchman and George R. Hinchman; and that said deed was contrary to his wishés, because he desired a fair division made of all his property between all his heirs. This will then repudiated and rescinded the deed of May 29, 1905, as being no act of the testator. The will further recites that it had come to the knowledge of the 'testator that a will was in existence purporting to be made by him conveying all his real estate to Joseph W. Hinchman and George R. Hinchman, and stating this was contrary to his wishes. The will of 27th of July devises all his land equally among all his living children and the children of one dead. The old man seemed not to comprehend that he did not own the land; he seemed to think he could yet give it to his children impartially by will. Now may we not say that these acts of James H. Hinch-man making inconsistent disposal of this land, giving by one act to George R. Hinchman, by another to his two sons, by another to his children equally, six of these inconsistent acts within sixteen months, show that he was incompetent? He does and undoes. These circumstances are strong to show that the old man was in second childhood. He was broken by age and disease and suffering. He was a mental wreck. He was plastic clay in the potter’s hand. We can the more truly say this when we reflect that he did not write one of these papers, but they were brought to him by interested parties. It does not appear that he suggested or drew up or originated any of these inconsistent papers. It does not appear that he manifested any desire as to the disposition of his property other than a heartfelt desire that all his children- should share equally. That was his only ruling purpose. Those inconsistent papers go to show that James H. Hinchman in the dotage of age and weakness of body would yield to any child that would solicit his action. He had no force of will to resist. If not so, why would he yield to first one then another ? The very fact that he was once a unan of intellect lends strength to the statement that he was later an imbecile; for if he had not4 lost all his natural business capacity, we would not find him making such inconsistent papers, such disposition of his property. No man in his senses would do this. This charge of incompetency is sustained by the shocking injustice to his daughters from the deed involved in this suit. The land was about thirteen hundred acres in a fine coal region in Logan County, worth anywhere from thirty to fifty thousand dollars. The four daughters had never received anything from their father. That deed gave each of them only fifteen hundred dollars. The sons got the lion’s share. Can we think that a man who had held responsible position, and of good character and principle, who is shown to have had a strong love for his children, would thus make rich men of two sons and give his daughters pittance? Any one reading a deposition given by James H. Hinchman a few months before the date of the deed must be struck with the fact that he was of very feeble mind. I cannot give the details of that deposition, but it shows great feebleness of mind. So much as to the want of capacity of James H. Hinchman to make the deed.. As to Joseph. W. Hinchman, he was an active prosecutor of that suit in the name of his father to set aside the two deeds made by his father to George R. Hinclnnan based on the charge of mental weakness of his father. By letters to his sisters he called upon them to fight George R. Hinchman in the suit to set aside those deeds. In letters to his sisters he did this, and denounced his brother as guilty of fraud, calling him a “sneak thief.” He said in one letter that his father was “but a poor old feeble thing; he is a mental and physical reck & the man that would dare to take advantage of him how could I call him my brother.” In a letter about the suit of his father against George R. Hinchman he said, “I have got pap fully awakened, but he is just like a little child, perfectly inactive, forgetful and indifferent. Have to tell him again today what I told him day before yesterday.” He told several persons that owing to age and infirmity he .was a mental wreck and incapable of transacting any business of importance, and child like could be influenced to sign any paper, and said he would so state on oath. Such was Joseph’s opinion as to his father’s mental condition. So much as to the question of capacity of James H'. Hinchman to make the deed. Now'as to undue influence. The two brothers were men of mature age and-seemed astute. They lived within less than a mile of their father’s house. The old man transacted no business, but left it all to those two sons, particularly to George It. Hichman. The • daughters lived in another county. They and their husbands seldom saw the old man, but those two sons were in almost daily intercourse with their father. George E. Hinch-man cut a large amount of timber from his father’s land and received the money therefor, and collected oil rental, and deposited the money in his own name in the bank. • He did not turn it over to his father, and only paid him petty sums now and then. When his father sued him to set aside the two deeds above mentioned he also sued him in assumpsit for those moneys, claiming some live thousand dollars. All the evidence shows that'the old man had confldence in these sons, committed all his business to them, and that they had unbounded influence over him. They could get him to make any paper they wished, as shown by the inconsistent -papers above mentioned and other evidence. On Sundajr, May 28, George and' Joseph Hinchman went to their father’s home. One of them came from Ohio, to which he had a few weeks before moved. Shortly before that, about the 5th of May, the two brothers had arranged a compromise of the suits to cancel the deed to George Hinch-man, by which compromise George was to give up the land and it was to be divided equally among the six children. For such a result Joseph Hinchman had been struggling for months. On that Sunday a private conference took place between the father and those two sons. A grandson swears that one of the sons suggested to him that he and his wife then living with James Ii. Hinchman, visit a neighbor and leave the two sons with their father, as they had some business matters to talk over with him. The grandson and his wife did so. The two sons and their father had -the conference to themselves. What did they say to the old man? We do not know. Did they tell him that on the next day-the compromise would be carried out and thus misrepresent the character of the deed which the old man made next day ? Did they tell him that he was to get back his land and make a deed of equal division among all the children? Or did they over-ween him to consent to the deed of the-next day giving all his large estate to the two sons. That secret conference speaks strongly in this case. It was on Sunday. The case was pressing. It is not without force to remark that George and J oseph seemed afraid to say whether they were there together. They say that they cannot say as to this. Strange! ' But there they were. George had a deed for all the land. The old man says George made a proposition. What? There he was having all the land in his clutch. He had received it in trust to divide among all the children. Perhaps he said to his father, “If you will deed the land to me and Joseph, I will surrender the land to you.” He had the land in his hand as a weapon of coercion. Both brothers may have used it as a club to compel such deed. The old weak man, thus coerced, was in vinculis, moved by undue influence. We do not deny the rule of Delaplain v. Grubb, 44 W. Va. 612, that a man is presumed to be able to make a deed; we do not say that Hinchman was incompetent to make a free and voluntary ' deed; but old and weak as he was, he was not free under the circumstance; that George had his land and could dictate terms of surrender. Anyhow, the next day is born a deed by which the old man gives all his land worth from thirty thousand to fifty thousand dollars then, and prospectively more, to his two sons. Joseph Hinch-man who had been writing to his sisters that he was fighting for equal division suddenly deserts them and becomes owner of half ‘ himself and concedes the other half to his late antagonist. Sudden change this desertion of his allies. What is the reasonable explanation? Confederacy and combination between the two brothers to wrong the sisters, and defeat their father’s cherished object, equality between the children of his loins. What did the aged man think the deed meant? Joseph had been made by him, by power of attorney, his agent to transact his business. Joseph had been fighting George to cancel the deed. They compromised. The father thought they had made peace; that J oseph had succeeded in regaining his land. What more reasonable than to say that he thought he was getting back his land, and distributing it after his death among all his children ? How could he think that Joseph, whom he had chosen to fight for'his children,, was doing anything else ? Why did the compromise perish so soon ? It perished, as in thousands of instances, at the bidding of gain. Who believes, knowing that the father who wanted equality, would so suddenly change and sedately 'cut off his daughters ? In a will made in less than two months before his death, when he was nearing its portal, he denounced that deed, declaring that it was contrary to his wish, tried to carry out that wish by devise equal among all his children. Anybody reading this case must realize more clearly than I can express it, that the deed of 29th May, 1905, is the child of undue influence and fraud upon an old dying father. See the injustice it has done among children having equal claims. George Hinchman had received thousands of dollars from his father’s money for timber and oil rental, for which he never accounted. He and his brother get $12,000. each, likely much more, in land. The sisters get $1,-500, each, and out of this the hard deed makes them deduct certain costs. The boys indeed get the lion’s share. We know that George E. Hinchman importuned his father to make a conveyance, as he told his father that if he intended to give him anything he wanted it at once, as life was uncertain. This demand resulted in the deed of 19th Ma^ch, 1904, giving George all the land. He had his aim set all the time to secure the lion’s share. I might detail other circumstances against this deed, but it is useless. We admit that if a party is capable, his wish is law; but there is no fixed rule; each case must stand on its own facts, and the facts in one case rarely govern another, says Greer v. Greer, 9 Grat. 330. There it is laid down as a rule that “Although the grantor or testator may labor under no legal incapacity to do a valid act or make a contract, yet if the whole transaction taken together with all the facts, mental weakness being one of them, shows that the particular act was not attended with the consent of his will and understanding, it is void.” I find in Minor on Eeal Property, sec. 1164, the following in respect to unjust acts: “This class comprehends cases where advantage has been taken of the mental weakness, or of the necessities or actual condition of one of the contracting parties, putting him under the power of the other; or of undue influence arising out of the nature of the social relation in which the parties stand to each other; or of the business relations inconsistent for the time being with the transaction in question. Weakness of mind alone, where there is a legal capacity for business, does not invalidate an instrument; but if connected with any circumstances of surprise, inadequate consideration, undue influence, or the like, it affords strong, and, in general, satisfactory proof of fraud. . The question always is, whether the party has yielded an intelligent and willing consent to the transaction; and if it appear, considering all the facts— mental weakness being one — that such consent is wanting, the act is void/’ Samuel v. Marshall, 3 Leigh 567, lays down this principle, namely: “A person reduced to a state of mental imbecility by habitual intoxication, makes a voluntary and irrevocable deed of gift of Ms whole estate, to a cousin german, to the disherison of his half sisters, reserving the use to the donor for life, without any reasonable motive assigned for such an act; held fraud and imposition may be inferred from the circumstances, and from the very nature of the contract; and this deed of gift is fraudulent and void.” Hartman v. Strickler, 82 Va. 238, tells us that when a will of an old man differs from his previously expressed intention, 'and in favor of those standing in relation of confidence, it raises a violent presumption of fraud and undue influence, which must be overcome by satisfactory testimony. Repeated in Whitelaw v. Simms, 90 Va. 588. This deed was prepared by Joseph Hinehman at his own home, not at his father’s home, not in his presence. It was not read to him. These are important facts. The deed was handed to him while in or sitting on his bed. He was nearly blind. When asked if he understood it he remarked, “We have talked it over.” But what the talk of the day before was we *10 not know. Perhaps he was told he was getting back his land, or making a division of -iff among his children. The notary who took his acknowledgment is clear that the deed was not read to the old man, but he had' it in his hand as if reading it. A physician swears that he knew the old man could not read well. May we not ask, Why was not so important a deed read and explained to the frail old man ?”

The fact that the execution of a will was kept secret from some of the children is often entitled to great consideration, in connection with evidence tending to show undue influence. “Thus ' where a testatrix was old and feeble, with a mind so impaired that she was easily influenced by those possessing her chief confidence, and her will was executed in the presence of one of her children, who was greatly benefitted by it, the court regarded the secrecy of execution as a circumstance tending to establish undue influence/5 31 Amer. St. R. 684. There we also see that when it is alleged that the instrument was procured by undue influence, or was made while its maker was not of disposing mind, the fact that its provisions are not in harmony with a free and rational mind, must always lend probability to the charge. It may happen, too, that the evidence discloses what were the affections and wishes of the testator but a short time before, and nothing has occurred to change them and the act is variant from them, the change must be explained; else it will show that his act was not that of a free and disposing mind. We know the old man’s cherished intent of equality among his children. We see nothing to make him change it, except the pressure of his two sons to grasp the lion’s share. Why should they get all?

In Leonard v. Burtle, 226 Ill., the syllabus is as -follows 3 “Proof that the testatrix, who was old and feeble, reposed great confidence in her son, who acted as her agent, and that the latter procured his attorney to draw the will, and that the son and the attorney were alone with the testatrix at the drawing and execution of the will, which made the son practically the only beneficiary of a large estate, whereas the other children and grandchildren were given but small amounts, establishes prima facie the charge of undue influence by the son.”

I quote from 1 Underhill on Wills 197, the following: “Thus if the testator is an old and feeble man, unable to devote his attention to the active management of his estate, and if he had for sometime prior to the execution of the will permitted -the legatee to- exercise an exclusive and complete control of all his propcrt}r, the drawing of a will in his own favor by the confidential agent, to the total exclusion of the claims of members of the testator’s family, would be a circumstance of the greatest suspicion; presumption of fraud and of undue influence would, in such a case, be almost irresistible. But it is still a presumption of fact and ' may be rebutted. The clearest evidence would be required from the proponent, extending much further than mere proof of due execution and acquaintance with the contents of the will.” Pomeroy’s Eq., sec. 947, says that when mental weakness and failure of memory are accompanied by other inequitable incidents, equity will annul the conveyance, and the burden, where there is real weakness, is on the grantee to show “perfect fairness and capacity/’ Onr own case of McMechen v. McMechen, 17 W. Va. 683, holds such principles where-an interested party draws a-will. See 31 Amer. St. R. 685. I do not intend to say that mere relationship affords a legal presumption of undue influence; but I do say that it is an important fact to bo considered in connection with other circumstances of the case. I do not deny the principles laid down in Delaplain v. Grubb, 44 W. Va. 612, and Budcey v. Budcey, 38 W. Va. 168, and like cases, that a man is presumed to be competent at the facium of a deed; but each case stands on its own facts and circumstances, and I place the decision of this case on its facts and circumstances differing it from those cases. I draw a marked distinction between those eases and this. In them the parties making the instruments were active in having them prepared, whereas in this case the father did not do so, but the deeds were made ready' in his absence by the beneficiary.

■ Our conclusion is to reverse and set aside the deed of the 29th of May, 1905, from James H. Hinchman to George E. Hinch-man and Joseph W. Hinchman, and remand the case for other purposes contemplated by the bill.

Reversed and Remanded.