Whitten v. McFall

HARALSON, J. — When a lost or destroyed deed or will is sought to be established, the proof of its contents — 623 — ought to be such as to leave no reasonable doubt as to its substantial parts. The evidence of what it contained should be clear, full and satisfactory. — Elyton Land Co. v. Denny, 108 Ala. 553. The burden of proving the contents of such a paper is on the party seeking an interest under it. — Newell v. Homer, 120 Mass. 277. Another well recognized principle is, that when intimate personal and business relations exist between the parties, and one has advantage or superiority over the other, the validity of a deed made between them for the benefit of the one occupying such superior advantages, should be scrutinized with jealous care, and the bona ■fides of such transaction and its entire freedom from fraud and undue influence should be fully shown. — Ryan v. Price, 106 Ala. 584. “In determining whether an instrument be a deed or will, the main question is, Did the maker intend any estate or interest whatever to vest before his death and upon the execution of the paper? Or, in other words, did he intend that all the interest and estate should take effect only after his death? If the former, it is a deed; if the latter, a will; and it is immaterial whether he calls it a will or deed, the instrument will have operation according to its legal effect.” — Gillham v. Mustin, 42 Ala. 366; Trawick v. Davis, 85 Ala. 342; Abney v. Moore, 106 Ala. 131. Another rule of construction is, that if the paper is on its face equivocal, the presumption is against its operating as a testamentary disposition, unless it is made clearly to appear that it Avas executed animo. testandi, or being intended by the maker to operate as a posthumous disposition of his estate. — Abney v. Moore, supra. The evidence in the case tends to show that the instrument by defendants’ father, Z. M. Johnson, under which they claim, Avas a deed, and in some of its phases that it Avas testamentary in character. It is made certain that he executed a paper of some sort, either a deed or will, in Avhich he granted defendants, Nancy Whitten and her husband, John Whitten, his property. It is also certain, that he afterwards destroyed the instrument. — 624 — Tlie chancellor npon consideration of the evidence, ascertained that the paper was testamentary and revocable, and that the party executing it, having destroyed it, he thereby transferred to the grantees no property rights under it; but if it were construed as a deed, that it had been obtained through undue influence of the grantees. We have carefully examined the evidence in the cause, and are unable to agree with, the learned chancellor in his conclusions. Having reference to the competent evidence which was introduced, it appears that the instrument was a deed and not a will. It particularly described the land that was conveyed as it was described in the deed of the grantor’s grantor, by its land office numbers, unusual in a will. That deed was used for the purpose of an accurate description of the property in the one that was made. It was acknowledged before a justice of the peace, — an unusual and unnecessary procedure in execution of a will, — in the manner to make it a deed, and in all his references to the paper, after its execution, the grantor referred to it as a deed and never as a will. There were two witnesses examined for defendants, who are uncontradicted and who, if their testimony is to be believed, make it satisfactorily clear that it was a deed the grantor executed. So far as appears, they were disinterested, and without motive to misstate the facts they knew. One was I. M. Richardson, the justice who took the acknowledgment. He gives the date of the acknowledgment; states that he received a message from the grantor to come to the grantees’ house where he lived to do some writing for him; that the grantor told him on his arrival, that he did not know how long he had to live, and how much trouble he was going to be, and desired to get his business fixed up so that if he should take another spell and die, his daughter, Nancy, (the defendant) with whom he had then for some time been living, Avould get AArhat ■ he had; that he had got John (Whitten)- — the husband of Nancy, and both of whom were the grantees in the deed — to write the deed, and he guessed he wrote it all right, as he had — 625 — been getting him to do his writing for fifteen years, and he always did it as he told him; that the land embraced in the deed was the home place of the grantor on Cypress creek in said county-and State; that the instrument recited the boundaries, and the consideration expressed was, that they, the grantees, should take care of him; “it warranted, guaranteed and defended the deed,” as the witness expressed it, — something again foreign to a will, — and further recited that they were to clothe and feed him, give him a comfortable bed, put ordinary rock (as a monument) at his feet when he died, and after the doctor’s bill and burial expenses were paid, then he desired Nancy (his daughter, the defendant) to have what he had left. He further testified that the grantor signed and acknowledged the deed in his presence, and then he, the witness, folded it up and started to hand it to the grantor, who told him to give it to George, who was his grandson, the son of the grantees, and said to George, who was present, “take that now and Avhen your Pa comes home, give it to him,” and the paper was given to George. Dr. J. W. Lee, the attending physician of the grantor, testified, that the grantor told him in the presence of Mr. Whitten, that he was going to let him and Mrs. Whitten have his property Avith the understanding that they were to take care of him for his lifetime, pay his expenses, bear his burial expenses and the expense of putting a tomb-stone at his grave; that when he had a paralytic stroke before that time, he told witness to tell Esquire Richardson to come to Mr. Whitten’s and take his acknowledgment of the deed to the property on Cypress creek; that his mental condition was good.at that time for one of his age, but he was unbalanced before he died. He also testified that he had no other place that he knew of, except the one referred to as Cypress creek place. The evidence also shows, that the grantor was seventy-eight years old; had before he made the instrument suffered a paralytic stroke which affected one whole side, from which he partially recovered; that he had a short while before, lost his wife and was in deep distress — 626 — and grief thereat, and. had gone to the house of his daughter, Nancy, to live with her and her husband; that they cared for him while he lived and gave him burial at his death. If they, failed to perform the conditions required of them as a consideration for the deed, it does not appear, but on the other hand, the evidence tends to show, they fully performed those conditions. Moreover, it does not appear that either of the grantees ever influenced him to make said deed, but it was the result of his own volition. The evidence also shows, that while the old man had lost much of his physical and mental vigor, and was not capable as formerly of attending to his business, he yet had mental capacity sufficient to know what he was doing when he made the deed, and the circumstances were such, at the time, as to impress one, that in making it, with the conditions and considerations imposed, he acted well and wisely. He seemed to realize that he would be an incumbrance and a care for the balance of life, and what he stipulated for as a consideration for the deed, would seem to be Avhat one in his infirm, solitary and forlorn condition most needed, — a home Avith his daughter and her husband for the remainder of his days, not as a dependent object of charity, but making compensation, as far as he could, for the inconvenience, trouble and care they might experience by his presence in their home. It also appears that after he executed the deed his son-in-laAAr, Mr. Whitten, died, and this added very greatly to his discomfiture and sorroAvs. The decrepitudes of old age, and the loneliness it brings, as common observation teaches, are generally a heavy burden to bear even in the home of those nearest to the aged. This old man must have experienced great alleviation of these burdens, and had his closing days solaced in no small degree in the possession of means Avhich in his better days lie had most anxiously laid away, to compensate a daughter, even, for the filial care and attention she might bestOAV upon him when the bereavements of life and the infirmities of age were bearing so heavily upon him. Nor Avas it an unnatural thing for the daughter to accept this proffered remuneration for the provisions — 627 — she would make and bestow upon her aged and infirm parent. It is always a matter of more or less difficulty to establish the contents of a lost deed or will. It would seem, the evidence in this case is about as full and clear as can ordinarily be had for such purpose. It is not denied, as we have stated, that the paper was executed. The expressions of the grantor in the instrument, that after his expenses were paid, including his doctor’s and funeral bills and the cost of an inexpensive monument, he desired his daughter to have his property, — without which expressions the suggestion of a will could not have arisen, — did not change its character from that of a deed to that of a will, nor prevent the title to the property ■from vesting under it, in the grantees. The decree of the chancery court is reversed and one will be here rendered dismissing the cause out of the court below. Reversed and rendered.