Graham v. Allen

BROWN, J. “Conveyances of land * * may be made by deed, signed by the person from whom the *505 estate or interest is intended to pass, being of lawful age, * * and acknowledged or proved, and recorded as directed in this chapter. * * ” Or. L., § 9844. However, this court has held that the deed of an insane person is void: Farley v. Parker, 6 Or. 105; Bowman v. Wade, 54 Or. 347 (103 Pac. 72). The plaintiffs aver in their complaint and assert in their brief that the deeds involved herein were made without consideration. The plaintiffs are heirs, not creditors. As to them, a purely voluntary conveyance from the father to his sons would have been valid. It is well settled in this state that, as against these parties, their heirs, or those who represent their rights only, the question of consideration is not material, for neither a grantor nor his heirs can impeach a voluntary conveyance. That principle is announced in Carnagie v. Diven, 31 Or. 366 (49 Pac. 891), where this court, speaking through Mr. Chief Justice Moore, said: “Every person of lawful age who is seized of real property in this state may dispose of his interest therein agreeably to his wishes, and, in the exercise of this right, may make a voluntary conveyance thereof binding upon the parties thereto: Bradtfeldt v. Cooke, 27 Or. 194 (40 Pac. 1, 50 Am. St. Rep. 701).” To like effect, see 8 R. C. L., p. 961. More than a year after the execution of the deeds, Mrs. Hunter, a daughter residing in Canada, came to Wallowa and took up with her • father the matter of his action in the execution of the deeds involved in this suit. She said to him: “Why did you deed the boys this land?” And he replied, “Because I wanted them to have it and they deserved it.” The daughter then said, “You are not getting two per *506 cent on yonr money.” Her father answered, “I am getting all I asked for. I didn’t ask for any more.” According to the testimony of Mrs. Allen, other similar conversations were had between the grantor and his daughters, Mrs. Hunter and Mrs. Graham, and it is plain that he never wavered in his purpose to convey the lands to his sons. An analysis of the record discloses that Mr. Allen recognized the fact that a will is an ambulatory instrument, and that he might revoke his will and make another whenever he chose. He gave his sons Jess and Joe all he intended that they should have. He realized that he was suffering from a diseased heart, and other afflictions as well, and that he might live a brief time only, or for years. He had formed an estimation of the business ability of the five plaintiffs. He was not yet ready to vest in these heirs title to any of his property. He was of the belief that they had failed to demonstrate their ability to care for the property and he seemed to think that it might be dissipated if turned over to them at that time. For that reason he intended to defer his gifts to the plaintiffs to a later date. Mrs. Allen testified: “He said the reason he willed it that way was because he wasn’t ready to fix it up and he didn’t know whether he would live to finish it, and he left it that way so I could fix it up afterwards. He left it in my power so I could fix it up in place of him. “Q. Fix it up with reference to what or to whom? “A. Why, with the other five. He said he had given Joe and Jess what he intended to give them; and the rest of it he said he would leave it to my judgment to give it where I seen fit to the other five. * * He said if I * * seen they deserved it he said I need not wait until I die; that I could fix it up before I died, and then if I had anything left after *507 I died, it could be divided up amongst the other five.” An unnatural disposition of property may be considered as a circumstance with other facts in determining the validity of a devise of property. But, clearly, from this record, it was not the intention of the grantor to cut from under the feet of plaintiffs all -claims to his bounty. He had three farms and three sons. The record cleaiiy shows that he intended these farms for his sons but that he failed to deed the third farm to Earl because he believed Earl was unsuccessful as a farmer. The following excerpt from the testimony of Ernest F. Johnson, an old-time friend of the grantor, is thoroughly illustrative of what was in the grantor’s mind, as shown by other similar statements: “He wanted to dispose of his property amongst his children while he was able to do it; * * he mentioned that he had thought about deeding to some of his children land and giving some of them money, and # * he wanted * * to be sure his wife was protected. ’ ’ He later carried out this plan by deeding tracts Nos. 1 and 2 to Jesse C. Allen and Joseph W. Allen, providing for himself and wife by taking back mortgages on the lands deeded, whereby each grantee was obligated to pay to himself and wife during their lifetime, and to the survivor, $500 per annum. He delayed in carrying out his plan of making provision for Earl and the daughters because he had not determined how he wished to divide the remainder of his property among them, nor whether they would preserve his bounty if they acquired immediate possession. For this reason, he willed the remainder of the property to his wife, giving her power to convey *508 to any one of the five heirs last above mentioned during her lifetime, and directing that, at her death, any portion then remaining should descend to the five plaintiffs, share and share alike. The will also gives the beneficiary a general power to convey and devise. No doubt Mr. Allen believed that such a power might be beneficial to the estate he was leaving. The measure of mental capacity that a grantor shall possess before he can validly convey his real property by deed has many times been set down by this court. See Carnagie v. Diven, 31 Or. 366 (49 Pac. 891); Swank v. Swank, 37 Or. 439 (61 Pac. 846); Dean v. Dean, 42 Or. 290 (70 Pac. 1039); Hamilton v. Holmes, 48 Or. 453 (87 Pac. 154); Reeder v. Reeder, 50 Or. 204 (91 Pac. 1075); Wade v. Northup, 70 Or. 569 (140 Pac. 451); Magness v. Ditmars, 81 Or. 598 (160 Pac. 527); Rowe v. Freeman, 89 Or. 428 (172 Pac. 508, 174 Pac. 727). A consideration of the facts in this case convinces us that the grantor’s mental capacity measures up to the true rule established by the foregoing precedents. Prom these facts and circumstances it satisfactorily appears that the grantor, when making the deeds conveying his lands, understood fully the nature of the business in which he was engaged. He comprehended the extent and nature of his estate. He had in mind all of those who by relation might have been the objects of his bounty. He recollected the names and various residences of his children. He knew the description of the lands he intended to convey and did convey. He remembered the consideration and the terms of payment thereof. Prom all these concurring circumstances, shedding their light upon the mentality of the grantor, we conclude that C. J. Allen, on August 13, 1921, possessed suffi *509 eient mental capacity to execute the deeds involved herein. He was neither insane nor a victim of undue influence. The various steps resulting in the execution of the deeds were free and voluntary upon his part. The testimony shows that Allen was not easily influenced. He possessed a mind of his own. Although consulting with his wife, he carried out his own plan with reference to devising these farms. Unnatural and unjust as it may seem, the grantor desired and determined that his farms should descend to his sons who knew how to farm and who actually did farm. The testimony in this case is largely a repetition of the testimony in a companion ease brought to this court, wherein the five plaintiffs herein contest the validity of the will of C. J. Allen, the defendants herein defending the will. For a more comprehensive statement of the facts involved, see that case decided this day. The decree is affirmed, without costs to either party in this court. Affirmed..