Hepler v. Hosack

Opinion by Mb. Justice Mestbezat, This is an action of ejectment for the undivided one fourth of 140 acres of land in West Bethlehem township, Washington county. The defendant is Ard M. Hosack, and the plaintiffs are the children of the deceased sister of defendant and of John T. Hosack, who died intestate on January 16, 1899, leaving to survive him the parties to this action. The father of Ard M. and John T. Hosack, by his will probated January 7, 1873, devised to his two sons two tracts of land in West Bethlehem township, Washington county, known as the “Rickets” and “ Home ” farms. The former contains 144 acres and the latter 140 acres. This land was held by the two brothers as tenants in common, after their father’s death, until January 16, 1899, the day on which John T. Hosack died. This action is for an undivided interest in the “ Home ” farm. The plain [640] tiffs allege that upon, the death of their uncle, John T. Hosack, who was the owner of the undivided one half of the tract, the title of the one half of his interest therein became vested in them, and that, therefore, they are entitled to recover in this action the undivided one fourth of the tract. The defendant denies that his brother, at the time of his death, was the owner of any interest in said land, or in the “ Rickets ” farm, and alleges that his brother conveyed to him his undivided interest in both tracts of land on January 16, 1899. This is the only defense the defendant sets up in this action. On the trial of the cause in the court below the plaintiffs attacked the validity of the deed from John T. Hosack to his brother Ard M. Hosack. They seek to invalidate the deed on the ground that at the time of its execution and delivery the grantor was incapacitated, mentally and physically, to such an extent as to render him incapable of making a deed. JohnT. Hosack executed the deed between twelve and one o’clock of the day it is dated. He died about 3:30 p. M. of the same day. He had been unwell for some time prior to his death. He was visited by a physician the evening prior to and the morning of the day he died. The scrivener wrote the deed immediately before its execution in the room of the deceased, and attested it and took the grantor’s acknowledgment. The determination of the issue in this case requires the consideration of the sanity or mental condition of John T. Hosack at the time it is alleged he executed and delivered the deed to his brother. If he understood what he was doing, what business he was transacting, and voluntarily executed and delivered the deed with the intention of conveying his undivided interest in the property to his brother, then John T. Hosack’s title to the land in controversy passed to the defendant and the plaintiffs could not recover. This question was submitted to the jury by the learned judge of the court below with very full instructions, and a verdict was rendered for the plaintiffs. The assignments of error relate to the admission of certain testimony offered by the plaintiffs, to portions of the charge, to the answers of the court to the plaintiffs’ second and eighth points, and to the refusal of the defendant’s point that under all the evidence the verdict should be for the defendant. The plaintiffs’ testimony, covered by the first three assign [641] ments, tended to show the business incapacity or mental condition of John T. Hosack at the time he executed the deed, and was clearly admissible for that purpose. The defendant objected to the admissibility of the evidence of the plaintiffs embraced in the fourth, fifth, sixth, seventh, eighth and ninth assignments, for the reasons that the witnesses were not qualified to give an opinion regarding the competency of John T. Hosack to execute the deed, and could not be interrogated as to his competency “ to transact legal business.” All the witnesses except Dr. Storer, who is an expert, and, therefore, entitled to express an opinion without stating the facts on which he bases it, testified fully to the facts in regard to Hosack’s condition before they were interrogated in regard to their opinion as to his capacity to execute the deed. We think the facts disclosed by their testimony were sufficient to afford a foundation for the opinions expressed by the witnesses. This being true, there could be no objection to the evidence: Doran v. McConlogue, 150 Pa. 98. In the case of Dean v. Fuller, 40 Pa. 474, relied upon by the appellant to support his contention in this respect, the offer was to ask the opinion of the attesting witness as to the competency to make the deed before the witness had stated the facts on which he based his opinion. This court held that the evidence was properly excluded. The difference between the question asked the witness in this case and the witnesses in the case at bar is apparent. The witnesses having stated the facts on which they based their conclusions, we cannot see that it was error to permit the plaintiffs to ask them their opinion as to the competency of the defendant’s grantor to transact important legal business. The reply to this question, founded on the facts given to support it, would enable the jury to determine the grantor’s fitness to make the deed. It will be conceded that the execution and delivery of a deed is an important business matter. A negative answer to the question complained of would justify the jury in finding the incompetency of the grantor to execute the deed, and an affirmative reply would clearly be evidence to sustain a contrary finding. An answer responsive to the question would, therefore, be evidence from which the jury could determine the issue presented for its consideration. We think there was no error [642] in admitting the question. For the same reason the eleventh assignment is not sustained. The tenth and twelfth assignments complain of the court’s instructions as to the delivery of the deed. We think they were as favorable to the defendant as he had, under the evidence, any right to expect. The question of the delivery of the deed was for the jury, as was also the credibility of the witness relied on to establish it. The language used by the learned judge in submitting the question could not have misled the jury. The delivery of the deed, like its execution, turned on the mental condition of the grantor. The learned judge told the jury that the turning point in the case was the mental condition of the grantor at the time the deed was executed and acknowledged, and thus the question of the delivery of the deed was practically eliminated from the case. The thirteenth assignment alleges error in the refusal of the defendant’s point requesting the court to withdraw the case from the jury and direct a verdict for the defendant. We agree with the learned trial judge that when the deed was signed John T. Hosack was undoubtedly in extremis. His attending physician saw him the night before he died, and told the defendant that he thought him a very sick man and that he did not expect him to recover. He also saw Hosack between eight and nine o’clock on the following morning, when he found him much worse, “ going down rapidly,” and testifies that he expected his death during tbe day. That morning the defendant went to ’Squire Gayman and requested him to come to his, John’s, house to prepare the deed. Between twelve and one o’clock the ’Squire arrived at the house, and by the defendant’s direction wrote the deed. Aside from the testimony of Ard M. Hosack there is nothing to show that John T. Hosack requested ’Squire Gayman to write the deed or that he was consulted about the consideration named in it, or that he desired to convey his interest in this land to his brother. On the contrary, the uncontradicted testimony of the scrivener is that after he had written the deed and read it to John, his assent to it. was by “ a nod only, but it was a weak one ; ” and when it was presented to John to sign “he made no effort himself to write ” his signature to it. The scrivener, placing the pen in the sick man’s hand and taking the hand in his own, wrote the [643] name of John T. Hosack to the deed which is alleged to be “the act and deed” of the man whose name is subscribed thereto. ’Squire Gayman testifies that, at the time the deed was executed, Hosack was “notoriously unfit” to transact any business with which he was not familiar. The only testimony in the case that he had any knowledge of an intention to convey his interest in these lands to Ard M. Hosack or knew anything of the transaction prior to the execution of the deed, is that of the defendant himself. It is unnecessary to refer to the testimony in detail on this branch of the ease. It was amply sufficient, if believed, to justify the jury in finding that the conveyance of January 16, 1899, was not the deed of John T. Hosack and did not convey his interest in the land in dispute to the defendant. "Whatever may have been his intention as to the disposition of his property by deed or his desire to convey it to his brother, the evidence produced on the trial of this case leaves but little doubt that John T. Hosack failed while in his conscious moments to carry such intention into execution. The assignments of error are overruled and the judgment is affirmed.