Boyle v. Robinson

KebwiN, T. Tbe execution of tbe deed and tbe transfer •of tbe certificates of deposit by deceased, .Bridget Duffy, are attacked by plaintiffs on tbe ground of want of consideration, undue influence, and incompeteney. Tbe court below found against tbe contention of appellants on these questions of fact, and upon well-established principles such findings must be •sustained, unless tbe clear preponderance of tbe evidence is against them. Chase v. Hinkley, 126 Wis. 75, 105 N. W. 230; First Nat. Bank v. Buetow, 123 Wis. 285, 101 N. W. 927; Tate v. Jerman, 123 Wis. 368, 101 N. W. 679; Hutchins v. Bautch, 123 Wis. 394, 101 N. W. 671. 1. Respecting want of consideration or failure on tbe part of Margaret Robinson to carry out ber agreement made contemporaneously witb tbe deed, providing for tbe support, care, and maintenance of the deceased, Bridget Duffy, during ber life, and at ber death tbe payment of certain amounts specified to tbe beneficiaries, there can be no question .upon this appeal, so we shall confine our discussion here to tbe question of incompeteney and undue influence. The deceased, Bridget Duffy, and defendant’s father, Michael Duffy, intermarried over forty years before tbe execution of tbe deed. The defendant is tbe only surviving child -of Michael and Bridget Duffy. Plaintiff Mary Boyle is a married woman apparently in good circumstances, and plaintiff James Whalen testified that he went out of tbe laundry business in 1898, since which time be has lived on bis principal, and has no family dependent upon him for support; that be lived in tbe family of Michael Duffy only six or eight months. Tbe defendant, Margaret Robinson, is the mother •of five children. Pier husband became paralyzed in 1878 and since has been unable to work or aid in tbe support of tbe family, during which time defendant has supported herself and family, witb tbe exception of some aid received from berson and daughters. There is testimony tending to show that it was tbe desire of tbe defendant’s father that defendant — 575 — should have the property in question; that the deed was prepared after Bridget Duffy had fully considered the-matter and had been advised in respect thereto,- — so it appears that the transaction was not carried out hastily or without due consideration on the part of Bridget Duffy. Testimony- was offered on the part of the plaintiffs respecting the peculiar actions of Bridget Duffy for some time prior to the execution of the deed, to the effect that deceased was failing rapidly and was weak in mind for some time before Ber death; also testimony in a general way that she was not fit to do business from May, 1902; that she would at times do peculiar things, and appeared to exhibit symptoms of forgetfulness, and at times when on the street would lose her way when within a block of her home, and that she would make large purchases, far beyond what was necessary; also testimony by servants that she appeared strangely, would go about the house from top to bottom as though looking for something; that she would go to bed at 9 or 10 o’clock in the forenoon -and ask if it were not night, and would go to bed three or four times a day and get up again; that defendant at times said she did not know what she was going to do with deceased, and that a guardian ought to be appointed over her; that deceased would at times offer to pay for things purchased a second time, and did not seem to know clerks at the store with whom •she had previously traded; and that she would get up at all Tiours of the night and very early in the morning; did not know persons with whom she had been well acquainted. On the part of the defendant there is evidence tending to ■show that up to about the time of her death deceased was of ■sound mind and competent to do business; that she did the purchasing for the house; although weak physically did not -seem weak mentally; talked about selling her property; was perfectly rational, active, and smart until shortly before her death; was a very clear-headed, sensible, astute, keen woman three weeks before her death, unlettered, but clear-headed; — 576 — was mentally, though not physically, strong three weeks before death; talked about things that happened many years before; was secretive about her affairs and kept her own counsel, and was competent to transact business at the time the deed was made; that she lived nine months after execution of the deed. Some of the witnesses who testified on the part of the defendant had known deceased for many years and were intimately acquainted with her. Mr. Kershaw, who witnessed the deed, testified that he had known deceased for many years, and that he drew the deed in question at Mrs. Duffy’s direction and took her acknowledgment, and that she was mentally competent when the deed was. executed. Dr. Burgess, a physician in Milwaukee, whom deceased consulted concerning the transfer of her property, testified that the day preceding the execution of the deed, when he had a conversation with her about her property, and during the time he was there, up to the time Mrs. Robinson began to speak about her mother’s physical condition, deceased was mentally competent to transact business; that he had a high appreciation of her intelligence. Jeremiah Quin, a prominent and respected resident of the city of Milwaukee, who had known Bridget Duffy for over thirty years, testified that he conversed with deceased about three weeks before she died; that she was a very clear-headed, sensible, astute, keen woman, unlettered, but very clear-headed, and that she was in mind mentally sound and competent, unquestionably; considered her of very sane mind, clear in her faculties and all right in every way;. nothing in her actions, behavior, or conversation at any time prior to her death indicating that her mind was losing its power or that she was incompetent; she was certainly, to his mind, as vigorous three weeks before she died as she had been a year before; there was no substantial difference in her appearance or manner mentally, or the way she talked, three weeks before her death and conversations had for years past. We have not attempted to review all the evidence, nor shall — 577 — we do so. We have given merely a general idea of tbe evidence offered on both, sides respecting the competency of Bridget Duffy. On the question of undue influence there is but little evidence. Counsel for appellants relies mainly upon inferences drawn from the relation of the parties, the fact that defendant installed herself in the home of Mrs. Duffy, and shortly thereafter obtained the deed, together with the alleged claim that the transfer by Mrs. Duffy was improvident and made no ample provision for protection. There is evidence that Mrs. Duffy was a self-willed woman, and when her mind was made up she could not be turned; that she stated that she was going to give the property to defendant, because she was -poor and needed it and because her father wanted her to have it. She made the deed and took the agreement after consultation not only with her lawyer, but with one- of her neighbors in whom she had confidence. Obviously she entered into the transaction with care and deliberation. Some point is made' by appellants upon the fact that defendant kept the transfer to her a secret and did not inform relatives of it, and also gave instructions when the deed was recorded to prevent publication of the recording thereof in the Milwaukee papers. But defendant testified that this was the wish of her mother. It also appears that at or about the time of the making of the deed defendant remonstrated and said: “I don’t want mother to do this. It will make trouble with my sister.” And Mrs. Duffy said she had been thinking about it a long time and that was what she wanted to do, and that there would be no trouble if defendant would keep her mouth shut. So it is very evident that Mrs. Duffy desired the matter kept quiet. Hence the instructions that the recording of the deed be not published. There is nothing in the evidence tending to show that the burden of proof was upon defendant. In Winn v. Itzel, 125 Wis. 19, 32, 103 N. W. 225, referring to Davis v. Dean, 66 Wis. 100, 26 N. W. 737, cited by counsel for ap — 578 — pellants, tbis court, speaking through Mr. Justice Wikslow, said: “After as well as before that decision it was the duty of the court at the close of the plaintiff’s case to decide whether a prima facie showing of fraud had been made, if the question was raised by proper motion on the part of the defendant. After as well as before that decision, in case the trial court held that a prima facie showing of fraud had been made, the defendant could either stand upon the plaintiff’s proofs and challenge their sufficiency in this court, or he could introduce his own proofs tending to rebut the plaintiff’s case and establish his innocence. 'In this sense, and in this sense only, the burden of proof shifts. When the plaintiff makes a prima facie -case, entitling him to relief if the proof stops there, the defendant must take up the burden and meet the case so made by other evidence. This is the case in all contests of fact. It is not peculiar to fraud cases. The rule of Davis v. Dean did not change the long-established rule, nor did it tend to do so. It simply announced what facts would be considered as prima facie proof of fraud, requiring explanation by the defendant.” 2. Respecting the certificates of deposit, it is clear that they were freely and voluntarily turned over to defendant by Bridget Duffy, and that defendant drew the money and deposited it in her own name, and afterwards drew it at various times from October 13,1903, to August 10, 1904, in amounts varying from $100 to $1,200, and $1,000 of it was drawn after Mrs. Duffy’s death. It also appears that defendant applied part of the money so drawn with the consent and for the use of Mrs. Duffy, and there is evidence to the effect that part of the money was applied by defendant in ¿payment of Mrs. Duffy’s debts. But just how much was so applied does not definitely appear. We do not think the evidence shows that defendant became the owner of these certificates. We are in doubt whether the court below intended to so find, or whether the judgment is capable of such construction. The judgment decrees that the certificates were transferred to de — 579 — fendant, but whether in her own right, or for the use and benefit of Bridget Duffy, does not clearly appear. The judgment should therefore be so modified as to make it clear that the defendant’s title to this money, or the portion remaining at the time .of Mrs. Duffy’s death, is not passed tipon in this action. 3. Complaint is also made by appellants because the judgment makes the payments specified in the agreement of October 7, 1903, referred to in the statement of facts, conditioned upon the payment of costs and disbursements by the plaintiffs “and the defendant’s expenses in connection herewith, and conditioned further upon the final termination of the action by consent or otherwise in accordance with this judgment.” We think the judgment should be further modified by striking out the above-quoted portion, but we.see no objection to the part which makes the payment of the amounts specified in said agreement conditioned upon payment of the costs and disbursements of this action. 4. Error is assigned upon the admission of evidence of Mr. Kershaw, an attorney who drew the deed and agreement in question. He was requested by Mrs. Duffy to sign the papers as a witness and did so. Upon the trial he was interrogated respecting the mental competency of Mrs. Duffy at the time of the execution of the papers, and the testimony was objected to and the objection overruled. The admission of his evidence was proper. McMaster v. Scriven, 85 Wis. 162, 55 N. W. 149; In re Will of Coleman, 111 N. Y. 220, 19 N. E. 71. Dr. Burgess, a prominent physician of Milwaukee, was also called and examined as a witness respecting the mental competency of Mrs. Duffy, and objection was made to his evidence on the ground of privilege. It does not appear, however, from the evidence that the answers to the questions asked Dr. Burgess involved disclosure of any communications received by him while attending her as a physician. Besides, it appears he signed the deed as a witness. His evidence was — 580 — therefore competent. There may be doubt as to whether the testimony of Dr. Kelly was properly admitted, but it is wholly immaterial in this case whether competent or not, since there is abundance of evidence to support the findings without it, and therefore, upon well-established principles, its admission, even if improper, cannot affect the judgment. Winn v. Itzel, 125 Wis. 19, 103 N. W. 220; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Hill v. Am. S. Co. 112 Wis. 627, 88 N. W. 642; Duncan v. Duncan, 111 Wis. 75, 86 N. W. 562. By the Court. — The judgment of the court below is modified by adjudging that' the certificates of deposit were transferred, but defendant’s title to the money thereby represented is not passed upon; and further modified by striking out the last part of the nineteenth paragraph, which reads, “and the defendant’s expenses in connection herewith, and conditioned, further, upon the final termination of the action, by consent or otherwise, in accordance with this judgment;” and as so modified is affirmed. No costs will be allowed either party in this court, except that respondent pay the clerk’s fees-.