Clark v. Abrams

STEPHENS (Jess E.), J. pro tem.

Appeal was taken herein from a judgment in favor of defendants.

[498]

Plaintiff was the daughter of Mabel Pearl Abrams, who was deceased at the time of bringing the action, and defendant Prank Rouse was administrator of her estate, being sued in his representative capacity only; defendant Emanuel Abrams was the surviving husband of said decedent. Plaintiff was the daughter of decedent by a prior marriage.

It is alleged that some six or seven months prior to her death decedent executed a deed conveying certain real property to defendant Abrams and herself as joint tenants; that at the time of the execution of said deed “the said Mabel Pearl Abrams was mentally incompetent to sign or execute said instrument, by reason of the fact that she was then, and had been for many months prior thereto, in an intoxicated, inebriated and debilitated state and condition, by reason of her continual consumption of excessive amounts of alcoholic liquors, and that the said defendant Emanuel Abrams knew of her condition at said times and procured her to sign or execute said conveyance while she was in such state of intoxication, inebriety and mental incompetency; and that by reason of said intoxication, inebriety and mental incompetency the said Mabel Pearl Abrams could not and did not know or understand that she had signed or executed said deed”; that by reason of the said “purported joint tenancy deed” defendant Abrams claims title to said real property, is in possession thereof and refused to turn over said real property or the rents collected therefrom to defendant Rouse, as administrator ; that said Rouse, as administrator, has refused to bring any action on behalf of the estate or to join plaintiff therein, and has demanded that he be made a party defendant herein; and that for these reasons he is made a defendant in his representative capacity as administrator. A second cause of action is set forth, attacking a claimed gift of personal property upon exactly the same grounds.

In her specifications of error appellant sets forth nine findings of fact and nine conclusions of law, but makes no contention that the findings are not supported by substantial evidence. Portions of the testimony are quoted and authorities cited in support of the apparent contention that the trial court did not give sufficient weight to the evidence presented by her, or required too high a degree of proof on her part. It is of course a thoroughly established rule in this state that where, upon a question of fact, the testimony in