Opinion
08-25-1896
HOPPER et al. v. HOPPER et al. (two cases).
Peter W. Stagg, for complainants. Cornelius Doremus. for defendants.
Two suits by John G. Hopper and others, one against James G. Hopper and others, the other against Abram G. Hopper and others. Heard on bills, answers, replications, and proofs.
Peter W. Stagg, for complainants.
Cornelius Doremus. for defendants.
McGILL, Ch. The object of these suits is to set aside two deeds made by Garret L Hopper and his wife, on the 1st of December, A D. 1887, respectively, to two of the sons of Garret I. Hopper, James and Abram; the deed to James being for two parcels of land, represented as lots 11 and 12 on a map of the property of Garret I. Hopper, at Ridgewood, in Bergen county, and the deed to Abram being for a single parcel, lot 13, on the same map, the lots each being 50 feet wide and 225 feet deep, and worth about $200. The contention of the complainants is that, when the deeds were executed, Garret I. Hopper was so afflicted with paresis that he did not comprehend the import of his act, and was fraudulently prevailed upon to sign and acknowledge them. Mr. Hopper was a farmer at Ridgewood. He died, intestate, on the 16th of November, 1893, aged about 80 years, leaving, him surviving, his second wife and eleven children, four sons and seven daughters, four of whom, three sons and one daughter, were the children of his first wife. The disease from which he suffered appeared several years before his death, and because of it in November, 1892, a year prior to his death, under a commission out of the court of chancery, he was found to be so far insane as to be incapable of governing himself and his affairs. The inception of the disease was almost imperceptible. It first manifested itself by its subject's forgetfulness and needless repetition of his remarks and questions, and later by his inability to remember friends and kindred, progressing therefrom, by stages, until ability to comprehend and reason was entirely lost The disease undoubtedly afflicted him in December, 1887, when the deeds in question were executed, but to what extent it then affected his mental faculties is a mooted question in the case. His wife participated in the execution of the deeds, and was present when he signed them. She appears to have been in good health, and it is not intimated that she was not fully cognizant of their purport and effect; and hence it is difficult to understand how, if a fraud was practiced upon her husband, she could be other than, at least an acquiescent party to it. One of the grantees, James Hopper, to whom two lots were conveyed, was her son, and the other, Abram, to whom one lot was conveyed, was her stepson. She had other children of her own and other stepchildren, and no satisfactory reason is assigned why she should so far prefer James and Abram to those other children as to induce her to participate in an imposition upon her husband, that they might reap an advantage which would be detrimental to their brothers and sisters. It appears to be improbable that she would acquiesce in any such transaction. It is admitted that Mr. Hopper's estate amounted in value to about $15,000 when the deeds were executed; hence he then parted with about 4 per cent. of his estate. He did not part with that which yielded him a present substantial income. He gave vacant building sites, upon which the two sons might erect houses near him. A gift of this character would not be so unnatural and inequitable to the remaining children as to shock our sense of justice. It is not shown that Abram had special claim upon his father's bounty, but it appears that James resided with his father, and assisted him to work his farm, until he was 27 or 28 years of age, and to within a year of the time when the deed to him was executed, receiving such compensation only as the father was pleased to give him, and that, after he went away, he continually returned to see to the welfare of his parents.
If James is to be believed, the father first suggested a gift to him alone, and afterwards determined to give to Abram also. Neither the character nor the value of the gifts, nor the persons upon whom they were bestowed, are such as to present a glaring impropriety, which shocks the mind, as it approaches the inquiry which the complainants present The intendment is in favor of the validity of the act, and the complainants are required to clearly bear the burden of proof. The proof they offer comes mainly from two sons, a daughter and a sister of Mr. Hopper, and a neighbor, named Ackermann. One of the sons, John G. Hopper, says that his fatherbegan to be forgetful in 1875; that between 1880 and 1882 he became unfit to transact business; that, for instance, in 1882 he failed to understand an insurance note similar to notes of that character which he had been accustomed to give, and in 1887, when the witness, as assessor of taxes for the township, called to assess him for taxes, forgot that he had sold a $500 bond, and appealed to his wife to know if he had done so, and in November of the same year, at a silver wedding, away from his home, failed to recognize one of his married daughters. His sister Mary Naugle says that in 1887 he failed to recognize her when she called upon him. His daughter Mary L. Christopher instances his failure to recognize her in 1886, at his own house, and also in 1887, at the silver wedding referred to. His son Albert G. Hopper says that in December, 1887, or January, 1888, he mentioned to his father that he had heard that the father had given James and Abram each a lot, and that the father replied that he had not, but that James and Mrs. Hopper had been doing something which he did not understand. Garret G. Ackermann, the neighbor, says that in 1885, 1886, or 1887, while, as constable, he was conducting a sale about a quarter of a mile from Mr. Hopper's residence, Mr. Hopper came along, unable to find where he lived, and disputed with the witness when he was told which way to go. All these witnesses speak in a general way of Mr. Hopper's forgetfulness, but the instances they give of it date after the year 1887, except as stated. With the exception of Ackermann, they all appear to be interested in the event of this suit, in one way or another. The two brothers John and Albert and the sister Mary are complainants, contesting the deeds, and Mrs. Naugle admits that the complainants have secured her favor by expressing to her a willingness to pay her some money she claims from their father's estate. The testimony as to the condition of Mr. Hopper at the silver wedding, and the general assertions of the complainants' witnesses concerning the degree of Mr. Hopper's forgetfulness in 1887, are disputed by the witnesses upon the part of the defendants; and those witnesses outnumber the complainants' witnesses. Dr. Vroom, a young physician, who saw Mr. Hopper for 20 minutes in 1891, ventures the opinion, based upon Mr. Hopper's condition then, as he was able to note it in his short visit, that Mr. Hopper must have lacked capacity in 1887; but evidently the doctor has failed to take into account the well-known characteristic of paresis, which was stated by Dr. S. Preston Jones, a well-known expert in diseases of that character, in Wilkinson v. Sherman, 45 N. J. Eq. 420, 18 Atl. 231, in this language: "These patients will have a bad spell, and take a slip downward, and then they will live for months without a change; then they will have another spell and another slip downward. After these spells, they never rise up to where they were before." It may be that in 1887 the stage or plane of the disease from which Mr. Hopper suffered admitted of his capacity to execute the deed, and that thereafter, when Dr. Vroom saw him, he had suffered slips downward. Dr. De Mund, a physician of 31 years' experience, testifies that he made three professional calls upon Mr. Hopper in January, 1889, and one call upon him in June of the same year, without at these times noticing any marked peculiarity in his conduct. I need not recite the evidence further. It is enough to say that it satisfies me that, when the deeds were executed, Mr. Hopper's intellect, although to some extent impaired and weakened, was not so far impaired as to deprive him of capacity to understand the deeds and the import of his act when he executed them.
It is admitted that James Hopper got the map of his father's property from him, and took it to a scrivener, whom he instructed as to the preparation of the deeds, and, when they were drawn, accompanied him to his father's house, where they were signed and acknowledged, and was present at the execution of them by his father, and immediately thereafter took possession of them, and paid the scrivener for his services. Standing unexplained, such conduct, coupled with proof of the mental weakness of Mr. Hopper, undoubtedly awakens strong suspicion against the instruments, and leads the mind to a close scrutiny of the circumstances which surround the execution of them; but, when that execution is regarded in the light of those surrounding circumstances, manifesting, as they do, an absence of all clandestinity, I think that the conduct is not sufficient to raise a presumption against the fairness of the transaction. James Hopper testifies that for a long time his father had promised him some ground, and that one morning, in October, 1887, while he was paying his father a visit, the father announced that he had made up his mind to give James a lot, and then directed James to get some one to prepare the deed for him; that thereupon James saw Mr. A. Z. Demarest, a lawyer, and asked him to draw the deed, and Mr. Demarest agreed to do so, but said that he would need the father's map for that purpose; and that thereupon James again saw his father, and together they looked over the map, and the father pointed out two lots that he would give James, and one lot that he would give Abram; and thereupon James took the map to Mr. Demarest, and had the deeds drawn for the lots indicated by his father, and on the 1st of December, 1887, with Mr. Demarest, went to his father's house, where the deeds were handed to his father, who commenced to examine them, and finding that they were in Mr. Demarest's handwriting, handed them to Demarest, and said that, as they were in Demarest's handwriting, he had better read them; and that thereupon Mr. Demarest readthem, and then they were signed and acknowledged by Mr. Hopper and his wife. Mr. Demarest corroborates this testimony, and says that he read one of the deeds to Mr. Hopper, and the description of the land in the other of them, saying that in other respects the deeds were alike. He says that, when he entered the room where the papers were executed, Mr. Hopper sat at a table, and his wife and two younger ladies were in the room. He failed to notice anything peculiar in Mr. Hopper's conversation and conduct. James Hopper says that his sister Kate was in the room, but, although this sister was produced as a witness to show that her father had capacity to execute the deeds, she was not interrogated as to the execution of those papers. Probably she left the room before they were executed, for, in answer to a question upon cross-examination, she says that the first she knew of the execution of the deeds was the morning after they were signed. She does not say that she had not previously heard of the deeds. Who the other woman who was in the room when Mr. Demarest came was does not appear. Neither she nor Mrs. Hopper was produced as a witness. It is explained that the failure to examine Mrs. Hopper was on account of her feeble physical condition. It is regretted that she was not examined as a witness, for, if there be fraud here, as I have said, she must have been a party to it, either active or acquiescent. The transaction thus appears to have been an open and fair one, unmarked by clandestinity. The testimony of Albert Hopper regarding the interview with his father when he questioned him whether he had made deeds to Abram and James fixes the time of his interview almost immediately after the execution of the deeds, and evinces that the giving of the deeds was immediately known in the family. Mr. Hopper lived six years after the deeds were given, and it was not until five of those years had expired that his family took steps to have him adjudged to be a lunatic, and to have a guardian appointed for him. In the meanwhile, James and Abram had asserted their title to the lots conveyed to them, by planting upon them, and paying the taxes assessed against them, and improving the street in front of them. I think that the complainants have failed to make out their case, and I will therefore dismiss their bills, with costs.