Smith v. Gardner

Grant, J.

(after stating the facts). The grounds upon which recovery is sought are incompetency, undue influence, and want of consideration.

Under the established facts in the case, the defendant Edward, then 39 years old, had no property except $200, which he paid his father. His father desired to sell the farm to him upon a contract. He refused to accept a contract, and insisted upon a deed and mortgage. His father and mother assented. He then procured the discharge in question. The effect is to leave the widow without a dollar for her support. It is in the power of Edward to dissipate the entire estate. He is financially irresponsible. This action on the part of the husband and father is unnatural. The mortgage and notes accompanying it were not surrendered. Edward testified to the only reason which can be given for his father’s retaining them, and is found in a conversation between him and his father at the execution of the discharge. His testimony is excluded by the statute as equally within the knowledge of the deceased. But if it were not, we should not hesitate to disbelieve it. No good reason is given for virtually disinheriting his wife with whom he had lived for half a century, and for a desire to keep the discharge a secret from her.

The defendant filed his answer April 1, 1905, evidently in ignorance of the fact that the notes had been found. He alleged that the three notes were one for $1,500, and two for $2,200 each, and that one was due in 7 years, one in 12, and one in 17. A transaction so important to him made so little impression upon his memory that he had forgotten the amounts and times of payment. The facts of the condition of Aaron Gardner at the time must be considered in connection with the unnaturalness of the transaction. The evidence disclosed, as stated by his physicians, that: “ He had all the symptoms of senile decay. He was worn out, and was not competent to transact business of importance.”

We think the learned circuit judge reached the correct conclusion, and the decree is affirmed.

McAlvay, C. J., and Carpenter, Blair, and Montgomery, JJ., concurred.