Opinion
No. 32422.
November 30, 1936.
1. WITNESSES.
In suit by widow to cancel contract executed by herself and deceased husband for their maintenance which materially encumbered homestead rights of widow and interest of each of heirs of estate of deceased, testimony of widow and daughter in reference to alleged mental incapacity of deceased held properly excluded as confidential communication between husband and wife, and because testimony tended to establish claim or defense against estate of deceased originating during deceased's lifetime.
2. WITNESSES.
In suit by widow and heirs of deceased to cancel contract executed by widow and deceased husband for their maintenance, testimony of other heirs of deceased which did not tend to establish any claim of their own, but which tended to support validity of contract and materially affected and reduced their right of inheritance, held properly admitted.
3. CONTRACTS.
In suit by widow and heirs of deceased to cancel contract executed by widow and deceased husband for their maintenance, testimony of widow, to effect that she had been unwilling to sign contract and had merely done so to avoid appearance of being contentious, if admissible, was insufficient to show undue influence.
4. CONTRACTS.
In suit by widow and heirs of deceased to cancel contract executed by widow and deceased husband for their maintenance, fact that deceased's son aided in drawing up of contract did not create presumption of contract's invalidity, where son was not party to contract and did not profit thereby, but had right of inheritance burdened by contract.
5. WITNESSES.
In suit by widow and heirs of deceased to cancel contract executed by widow and deceased husband for their maintenance, attorney of deceased held competent to testify as to conditions existing and matters appearing at time of execution of contract, where there were no confidential consultations and all matters testified about took place in presence of numerous persons other than deceased.
6. CONTRACTS.
In suit by widow and heirs of deceased to cancel contract executed by widow and deceased husband for their maintenance, evidence that mind of deceased was all right at times and at other times not held to support finding of chancellor that deceased was not mentally incapacitated to execute contract.
APPEAL from chancery court of Itawamba county. HON. J.W.P. BOGGAN, Special Chancellor.
I.L. Sheffield, of Fulton, for appellant.
The agreement or contract was made between father and mother on one side and a daughter and son-in-law on the other side. R.B.K. McFadden is not shown to have had any outside competent advice of any party disinterested in Mr. and Mrs. Welch. Nor is it shown that Mrs. T.A. McFadden had been consulted with in any way and the proof showing as it does that Mr. McFadden's mind was weak as well as his physical being, I submit that under the law governing fiduciary relationships the instrument is void or at least voidable at the election of Mrs. McFadden.
69 L.R.A. 393; 2 L.Ed. (N.S.) 285; Watkins v. Martin, 147 So. 652, 167 Miss. 343; Bourne v. Bourne, 140 So. 310, 163 Miss. 71.
Actual undue influence is not necessary to be shown. If the fiduciary relationship existed, and that is admitted by all, then the burden is upon him who claims under the instrument to show that the parties signing the deed signed with a full clear understanding of its contents and without undue influence and the courts have said that perhaps the only way to make such proof was that the grantor, R.B.K. McFadden, in this case acted on advice of some competent party disconnected with the grantee and wholly devoted to the interest of the grantor. Such was not done in this case nor was it attempted. Therefore I submit that the testimony with reference to mental incapacity connected with undue influence on the part of one to a fiduciary relationship, as in this case, was sufficient to raise the presumption of invalidity and therefore that we are entitled to a decree.
Section 1412 of the Code of 1930 provides that where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood as long as it is occupied or used by the widow, unless she consent. In this case the widow has the right to exercise this option.
It is provided in section 1778 of the Code of 1930 that in order to convey a homestead the wife must join her husband in such conveyance. There is no conveyance of the homestead in this case nor is there any instrument imposing a lien, encumbering or otherwise alienating the rights of this widow in this homestead.
Johnson v. Hunt, 79 Miss. 639, 31 So. 205; Mosley v. Larsen, 86 Miss. 288, 38 So. 283; Bourland v. Lily, 85 Miss. 344, 37 So. 811.
It is the policy of the law to preserve the homestead for the widow and children, if any, and it has been repeatedly held that statutes dealing therewith will be liberally construed so as to effectuate the generous and wise purpose of the Legislature in dealing therewith.
The property described in the bill filed herein was exempt to the widow. There is nothing in the contract made September 28, 1932, to the contrary. Not a provision therein to preclude her from the use and occupancy or consenting to the sale for partition and this court has repeatedly held under section 1412 of the Code by saying that the widow is entitled to the occupancy of the same as against the heirs of deceased.
Martin v. Martin, 86 Miss. 323, 88 So. 322; Tully v. Tully, 108 Miss. 84, 66 So. 328; Williams v. Williams, 111 Miss. 129, 71 So. 300; Tizer v. McKane, 113 Miss. 776, 74 So. 660.
Several objections were made to the testimony of Mrs. T.A. McFadden and Mrs. J.A. Thomas concerning the mental condition of R.B.K. McFadden prior to and at the time of the making of said contract of September 28, 1932. The contract in question creates no claim in favor of Mrs. McFadden and upon which she relies and if it be construed to be beneficial to her she certainly renounced its beneficial provisions by going into court in an effort to free her homestead from the effects thereof. I submit the learned chancellor was in error in refusing to permit these witnesses to testify as to the mental condition of R.B.K. McFadden.
The testimony of the witness, Attorney Cleveland, was objected to by appellants on the ground that it was privileged communication being as to things that transpired between attorney and client. R.B.K. McFadden is dead. The attorney was retained to represent him and, I take it from the proof, also Mrs. T.A. McFadden.
It is elementary that being in such relation to the parties he could not testify over the objection of one of the parties. Our statute on privileged communications prohibits this.
W.L. Elledge and A.T. Cleveland, both of Fulton, for appellees.
A deed or contract cannot be set aside on the ground of insanity if the person had sufficient mental capacity to understand in a reasonable manner the nature of the particular transaction in which he was engaged and its consequences and effects upon his rights and interests. It is sometimes said that a person has capacity to make a deed if he has sufficient mind to be capable of transacting ordinary business affairs, or of pursuing his own ordinary business in his usual manner. But this is too loose. The proper inquiry is whether he was capable of understanding and appreciating the nature and effect of the one particular act or transaction which is challenged.
Gillis v. Smith, 114 Miss. 665, 75 So. 451.
If the contract be held invalid, all of these rights, both homestead and property rights, immediately inure to Mrs. T.A. McFadden. The effect of her testimony that R.B.K. McFadden was mentally incompetent to execute the contract would be to immediately entitle her to all these rights free from all claims of the Welches. If she should establish by her own testimony that her own signature to the contract was obtained by undue influence, the same result follows. As a wife she possessed a veto power. If she should decline to join her husband in the execution of this contract it would not be valid and binding. If she should freely join him in the contemporaneous execution thereof, the contract would be valid against her. When she offers to testify that she was unduly influenced, the effect of her testimony is to destroy the contract. So in either event, whether testifying as to her husband's mental incapacity, his or her own act under undue influence, the effect of the testimony is to destroy the contract, and with its destruction, she, ipso facto, comes into the enjoyment of her said homestead and property interest in said land and she is thus brought squarely, in my judgment, under the rule in Whitehead v. Kirk, 104 Miss. 776, 61 So. 737.
Section 1529, Code of 1930; Burnett v. Smith, 93 Miss. 566, 47 So. 117; Baldridge v. Stribling, 101 Miss. 666, 57 So. 658; Graham v. Taylor, 117 Miss. 736, 78 So. 706; Garner v. Townes, 134 Miss. 791, 100 So. 20; Brown v. Parker, 143 Miss. 291, 108 So. 492; Jacks v. Bridewell, 51 Miss. 881; Davis v. Crawford, 168 So. 261.
We say with confidence that Col. Cleveland may have injected some irrelevant matters in his narrative, but they did no harm. On such parts of his testimony as are relevant and material he was entirely competent and there was no objection whatever. There was nothing privileged about his testimony.
Of the parties present at the execution of the contract, only two were competent witnesses, Mr. Thomas for the complainants, Col. Cleveland for the defendants. Thomas said the old man was not at himself, never opened his mouth. Mr. Cleveland said he was mentally competent. This testimony was conflicting. The chancellor resolved this testimony in favor of the version given by Mr. Cleveland.
If the court should hold that a fiduciary relationship existed between these parties, either the Welches or W.C. McFadden, and their parents, and that therefore the burden of proof shifted to the Welches to show the fairness and good faith of the contract, we confidently believe and contend that the appellees have more than met and overcome such burden. They show beyond question by this record that this contract was entered into in all fairness.
There is no conflict with benevolent homestead laws; Mr. and Mrs. McFadden simply encumbered the homestead before his death in such manner that said encumbrance continued to exist throughout both of their lives, regardless of which died first.
On September 28, 1932, R.B.K. McFadden and his wife, Mrs. T.A. McFadden, entered into a contract with their daughter, Mrs. A.E. Welch, and her husband, J.E. Welch, for the support and maintenance of the McFaddens for the balance of their lives. At the time of the execution of this contract, Mr. and Mrs. McFadden were an elderly couple who lived alone on a farm which they had occupied for many years as their homestead. Mr. McFadden was in bad health, and this aged couple had reached the point where they could no longer maintain and care for themselves. Their three children were all married and lived nearby. Mr. McFadden first made a proposition to J.A. Thomas, the husband of one of his daughters, to take over the care and maintenance of himself and wife upon certain stated terms. Mr. Thomas declined the proposition, and a few days later an agreement was reached between said R.B.K. McFadden and Mr. and Mrs. Welch. Mr. McFadden then outlined the terms of the agreement to his son, W.C. McFadden, who usually advised with him about his business affairs, and directed his said son to have his (R.B.K. McFadden's) attorney of many years' standing to incorporate the terms of the agreement into a written contract. The attorney prepared the contract in accordance with the terms outlined to him, leaving blank the amount of compensation to be paid to Mr. and Mrs. Welch, in excess of the rents, issues, and profits from the farm.
Shortly thereafter, W.C. McFadden, the son of R.B.K. McFadden, and his two daughters, together with their husbands, and the attorney, assembled at the said homestead for the purpose of executing the contract. The contract was read and explained to the assembly by the attorney, and R.B.K. McFadden fixed the money compensation to be paid to the Welches, and at his direction a provision was added that the Welches should not be required to pay physicians' and medical bills. Mrs. T.A. McFadden manifested some hesitation about signing the contract, and she was advised by her son that if she was unwilling to sign it, she need not do so, but after a conference with one of her daughters, without any particular protest, she signed the contract and it was finally executed.
Under the terms of the contract it was agreed that the Welches would move into the home of Mr. and Mrs. McFadden, and operate the farm for the rents, products, and profits to be derived therefrom, and that, in consideration thereof, and the further consideration of ten dollars for each of the McFaddens, the Welches were to provide everything required for the support, health, comfort, and happiness of the McFaddens, except physicians' and medical bills, so long as they should live. It was further provided that the Welches should pay all taxes accrued or to accrue against the property after the year 1932, and that the ten dollars per month compensation provided therein should not be payable until the death of both of the McFaddens, and that the sum accumulated at the death of the McFadden last surviving should be a charge on and payable out of the real estate then owned and occupied by them as a homestead. It was further expressly provided that if the Welches breached the contract in any respect, they would forfeit all claims against the estate for any compensation accrued, or to accrue.
After the execution of the contract, the Welches moved into the home with Mr. and Mrs. McFadden, and until the death of Mr. McFadden ten months later, they faithfully and fully performed all the obligations imposed upon them by the contract, and no dissatisfaction was expressed by either the father or the mother of Mrs. Welch. Shortly after the death of her husband, Mrs. T.A. McFadden moved into the home of her daughter, Mrs. J.A. Thomas, on account of, as she alleges, "uncongenial relationships in the home of J.E. Welch," and shortly thereafter this suit was filed by Mrs. T.A. McFadden and her daughter, Mrs. J.A. Thomas, seeking the cancellation of the aforesaid contract and partition of the lands belonging to the estate of the deceased. The bill of complaint sought a cancelation of the contract on the ground that at the time of its execution the said R.B.K. McFadden was mentally incapable of understanding or comprehending the terms and conditions thereof, and that he and the complainant, Mrs. T.A. McFadden, were induced to sign the contract by undue influence brought to bear upon them.
At the conclusion of the trial of the cause, the court found that the evidence wholly failed to show mental incapacity of R.B.K. McFadden at the time of the execution of the contract, or that there was any undue influence which induced either of the McFaddens to execute the contract; and dismissed the bill of complaint.
On appeal, the exclusion of the testimony of Mrs. T.A. McFadden and Mrs. J.A. Thomas is assigned as error. These witnesses were offered to show the alleged mental incapacity of R.B.K. McFadden in an effort to strike down the contract which, in effect, materially encumbered the homestead rights of the widow, and the interest of each of the heirs of the estate of the deceased. The facts here bring the case clearly within the principles announced in Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L.R.A. (N.S.) 187, Ann. Cas. 1916A, 1051, and no error was committed in excluding the testimony of these witnesses.
The appellants also assign as error the admission of the testimony of the widow and daughter of W.C. McFadden, deceased, a son of R.B.K. McFadden. The testimony of these witnesses did not tend to establish any claim of theirs against the estate, but, on the contrary, their testimony tended to support the validity of the contract which materially affected and reduced their right of inheritance, and, consequently, no error was committed in admitting their testimony.
There was no affirmative evidence of undue influence brought to bear upon either Mr. and Mrs. McFadden. The testimony of Mrs. T.A. McFadden was properly excluded, but, as it appears fully developed in the record, it amounted merely to the statement that while she was unwilling to sign the contract, she did so merely to avoid the appearance of being contentious. Testimony to this effect, if it had been admissible, was wholly insufficient to show duress or undue influence which induced her signature, and upon this phase, the case must find its basis, if any, in the presumption of invalidity of the contract arising from a confidential relationship existing between the father, R.B.K. McFadden, and his son, W.C. McFadden.
Assuming for the purposes of this decision the existence of this confidential relationship, the presumption of invalidity does not follow for the reason that the son was, in no sense, a party to the contract, and did not profit thereby financially, but, on the contrary, the contract imposed a material burden and encumbrance upon his right of inheritance which, in the course of events, might consume the entire estate. Furthermore, any such presumption was here met by the showing that R.B. K. McFadden acted throughout on the advice of an attorney who, for many years, had advised with him and had transacted all his legal business. While some of the testimony of this attorney as to preliminary matters was wholly immaterial and should have been excluded, that part of his testimony could not have affected the decision of the court. The attorney was competent to testify as to conditions existing and matters occurring at the time of the execution of the contract, as there were no confidential consultations, and all matters testified about took place in the presence of numerous persons other than R.B.K. McFadden. There is no suggestion in the evidence of any undue influence exercised by either Mrs. A.E. Welch, or her husband, J.E. Welch.
As to the mental incapacity of R.B.K. McFadden at the time of the execution of the contract, there is some conflict in the evidence; but the testimony is amply sufficient to support the finding of the chancellor that he was not mentally incapacitated to execute the contract. Most of the testimony bearing upon this issue may be summarized in the words of his physician that, "at times his mind was all right, at other times it was not."
The decree of the court below will therefore be affirmed.
Affirmed.