Watts v. Crabb

257 F. 717, 169 C.C.A. 5, 1919 U.S. App. LEXIS 2267

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 5, 1919
• Docket: No. 3207
• Status: Published

Opinion

GILBERT, Circuit Judge

(after stating the facts as above). [1] The appellants point to the fact that the bill of the appellees called for an answer under oath, and that the appellees answered under oath, and they invoke the rule that either two witnesses or one witness with corroborating circumstances are' required to outweigh an answer asserting a fact responsive to the bill. The new equity rules of 1912 (198 Fed. xix, 115 C. C. A. xix), which were in effect after February 1, 1913, abrogated all prior equity rules. They contain no'provision that an answer shall be verified, and they make no reference to the probative effect of an answer under oath, where the oath is not waived. Campbell v. Northwest Eckington Co., 229 U. S. 561, 33 Sup. Ct. 796, 57 L. Ed. 1330, cited by the appellants, is a case in which the issues were made and the cause was tried and decided before the new equity rules were promulgated. The doctrine that where an answer under oath is not waived in the bill, the denials in a verified answer as to all matters within the personal knowledge of the party answering must be overcome by the evidence of two witnesses, or by one witness corroborated by circumstances equivalent in weight to another witness, did not rest upon any specific rule promulgated by the Supreme Court, but upon a general rule of equity practice, as stated in 2 Story’s Equity, ,§ 1528.

[2] In the present case it is not necessary to decide whether the new equity rules have abrogated that rule of practice, for- here the essential facts to establish the appellees’ -case do not rest upon the testimony of any single witness. Thus the allegation that Thomas Watts was old and feeble in mind, and sick and mentally weak and easily influenced, was sustained by the testimony of several witnesses for the appellees, and the finding of fact indicating undue influence on the part of the appellants is deducible from the testimony of witnesses and the surrounding circumstances. The allegation to which the appellants refer, that “Homer I. Watts and his brother have some arrangement between themselves by which they are to be the real owners and receive the benefits from such land,” although it was not proven, is not a material allegation to the relief which is sought in the bill.

About four years before his death, Thomas Watts had executed a will in which he bequeathed $200 to his daughter Jerusha, and divided the remainder of his estate between his two sons. About the 16th of March, 1914, he visited his daughter at her home, and remained there until April 10, 1914. While he was there he sent for his will. After having it in his possession a few days, he destroyed it, and stated to hjs daughter and his granddaughter, “Now it is done, and they will all share equally.” Thereafter he was taken seriously ill, and on April 10th Marvel Watts came and carried him to Homer’s house, and there he remained in charge of a nurse and the physician attending him until his death, and there he executed the deeds which are the subject of the suit. Jerusha, her husband, and her daughter all testified in substance that, when Marvel Watts came to take his father away, the latter said:

“If you liave come after me to take me down to make any papers, or sign any papers, I won’t go e’er a step.”

To. which Marvel answered:

“Father, we have no such intention as that. It shall be divided equal. 1 won’t influence you to sign anything.”

Marvel denied this conversation, but the court below was convinced of the truthfulness of the appellees’ testimony. The court below heard all of the testimony in open court. That careful consideration was given to the testimony is evidenced by the opinion which is found in the record. The court found, in the testimony of the nurse and the testimony as to Watts’ physical and mental condition, together with the testimony of the defendants, that the deeds were procured from Thomas Watts by fraud and deception and undue influence, and by taking advantage of his enfeebled mental and physical condition, that the deeds were not the voluntary and intelligent act of Thomas Watts, and that in equity and good conscience the deeds were fraudulent and void. We find in the record no ground to disturb that conclusion.

The decree is affirmed.