Massey v. Kissire , 149 Ark. 215 ( 1921 )

Humphreys, J.

On the 10th day of March, 1920, ap-pellee, H. L. Kissire, instituted suit in the Conway Chancery Court to compel the Citizens’ Bank of Morrilton to cash a check for $3,578.49, drawn in his favor by his father, H. C. Kissire, against his father’s checking account in said bank.

The Citizens’ Bank of Morritlon interposed the defense that H. C. Kissire was insane, and, on that account, incapacitated to issue the check.

On the 19th day of April, 1920, appellant, W. O. Massey, the duly appointed guardian of H. C. Kissire, instituted suit against the appellee, H. L. Kissire, in the same court, to cancel a contract and deed of date February 24, 1920, purporting to have been executed by H. C. Kissire to H. L. Kissire, transferring and conveying all Ms personal property and real estate, upon the ground that IT. C. Kissire was insane at the time the 'contract and deed were executed.

Appellee, H. L. Kissire, filed an answer, admitting the execution of the instruments, and alleging that, at the time of the execution of them, his father, H. C. Kissire, was of sound mind.

The causes were consolidated and submitted to the court upon the pleadings and evidence, which resulted in a decree sustaining the validity of the contract and deed, and vesting all the property, both personal and real, of H. C. Kissire in H. L. Kissire, from which decree is this appeal.

The record reflects that H. C. Kissire was stricken in the late summer or early fall of 1919 with paralysis; that he never transacted any business after that time except to execute the contract and deed on February 24, 1920, transferring all his property to his son, IT. L. Kis-sire, and to sign his name in order to cash a stamp at the postoffice. The deed in question conveyed lots 1, 2 and 3, in block 8, Brown’s Addition to the town of Morrilton, Arkansas, which constituted H. C. Kissire’s 'home, to his son, IT. L. Kissire, for a recited consideration of $25 in cash, support for the balance of his life, and love 'and affection. The contract, in substance, transferred all the personal property of H. C. Kissire to his son, H. L. Kis-sire, consisting of a bank account of $3,578.49, $700 in bonds and stamps, and a few other items of personal property, for a recited consideration of love, and affection, $25 in cash, and support and burial expenses, and such assistance as IT. L. Kissire might desire to render his other two sons, Oliver and Melvin, and to furnish Oliver and Melvin a home as long as' they conducted themselves in a manly way and were not abusive to H. L. Kissire or his wife. The contract contained a proviso to the effect that, should' H. L. Kissire fail to furnish H. C. Kissire support, or fail to render assistance to Oliver and Melvin as agreed upon, such failure should abrogate tlie contract, in wliicb event tbe casb consideration of $25 should be paid back and snck property as was remaining turned back to H. C. Kissire, except the lands conveyed by deed. H. L. Kissire was thirty-fonr years of age and almost blind, and resided in the home of H. C. Kissire, with the other two sons who were also blind at the time the instruments aforesaid were executed.

On behalf of appellant, T. J. Kissire, a brother of H. C. Kissire, W. 0. Massey, the duly appointed guardian of H. C. Kissire, Mrs. Addie Crook, a neighbor, and M. H. Dean, county and probate judge of said county, testified that H. C. Kissire was mentally incapacitated to transact business at the time he executed the contract and deed. T. J. Kissire stated that he had visited H. 0. Kissire frequently after he suffered the paralytic stroke until the early days of March, 1920; that his mental and physical condition was “pretty sorry,” and that, during the entire period, he was incapable of transacting business; that he was incapable of understanding the nature of a contract or a conveyance of any kind. Mrs. Addie Crook stated that she had seen him, during the period he had lived near her, from one to three times a day; that she had heard him talk, and was of the opinion that he was unfit to transact business of any kind during the entire time. W. 0. Massey testified that H. C. Kissire had not been able to transact any business since his misfortune in the late summer of 1919; that he came to the bank the latter part of August, 1920, in company with his son and W. J. King. The following interrogatory and answer appears in the evidence of W. 0. Massey:

“Q. What did he say to you at that time, if anything, about his business at the bank?”

“A. He came into the bank and said he come to- see about his business. Wanted to see about $116 worth of cotton. I asked him about it, and he kept talking about cotton, and I told him we had no record of a deposit of that kind, and I asked his son what the old man meant by it, and he said he did not know, and the old man said something about coming to the 'Bank of Morrilton to see about his account, and I told him I had been over there and looted after that, that his account was square with the Bank of Morrilton, but they had $100 bond over there, and I got the bond and had it put away for him. Then his mind flashed a little bit, and he said something about the boys had pretended to take care of him, and stood awhile and did not say anything more for a few minutes. I went and got his account and told him the amount he had on deposit, and also told him that the interest due on his account at that time would amount to about $150, but he did not seem to realize the amount he had to his credit. His mind seemed to be on, and he kept asldng about, some cotton, $116 worth of cotton. Then he turned around and went out and said, ‘ Take care of my money until I call for it.7 That was all.”

Judge M. H. Dean testified that he saw H. C. Kissire often during the fall of 1919, and later visited him at his home and tried to engage him in conversation; that he became convinced, from his visits and conversations, that H. C. Kissire was not capable of transacting business or protecting his interests; that he saw him during the latter part of January and through February, 1920, and found him wholly incapable of transacting business; that, on March 12, 1920, H. C. Kissire’s mind was a blank on what one might ask him; that, on one occasion, in February, he tried to talk with him on business matters ; that he could not talk intelligently, and denied that he owned his home upon which he was residing at the time, and which belonged to him.

On behalf of appellee, he, Oliver. Kissire, Melvin Kis-sire, Oma Kissire and J. A. Eades, wlm prepared the contract and deed and took the acknowledgment of H. C. Kissire to the deed and the acknowledgments of both of the parties to the contract, all testified that the contents of the instruments were suggested by H. C. Kissire himself, and that his mind was clear and mental condition good at the time he executed the instruments; that he understood the nature and effect of both instruments. TI. L. Kissire, in describing the general condition of his father’s mind, said that “part of the time he talked with good sense, and part rambling.” He said, however, that, on the day he executed the instruments, his mind was clear.

After a careful reading and consideration of the evidence. we are convinced that H. C. Kissire was not capable of comprehending the nature and effect of the contract and deed executed by him to his son on the 24th day of February, 1920. The son, to whom he conveyed the property, was almost blind. The provision made for his two younger sons, who were blind and in a way helpless', was dependent in a large measure upon the will of H. L. Kissire and his wife. Considering the condition of himself, that of his two younger sons, as well as the affliction of the son to whom he conveyed all the property, the contract, in its very nature, was an improvident one. When the nature of the contract is considered in the light of the evidence of disinterested witnesses, who had ample opportunity to judge of the mental capacity of H. C. Kissire from association and conversation, we think the great weight or preponderance of the evidence supports the view that II. C. Kissire was incapable of transacting business when he executed the deed and contract in question. The chancellor’s finding was contrary to the weight of the evidence, and, for that reason, the decree is reversed and the cause remanded with instructions to cancel the contract and deed.