Marback v. Marback

ROTH, P. J.

— Appellants Sidney and Fannie Marback appeal from a judgment nullifying a deed executed on June 2, 1961, by Sidney’s invalid mother, Nancy Marback Robbins (Nancy), purporting to transfer to him a one-half interest in certain real property. For some years prior thereto and on the date of the deed the property transferred was held by Nancy and her son Norman, appellants’ brother, in joint tenancy. The basis for the trial court’s judgment, entered

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subsequent to a like advisory jury verdict, was that Nancy was mentally incompetent and was under undue influence exercised by appellants at the time of execution. Appellants contend that the evidence was insufficient to sustain the advisory verdict and the judgment. We, therefore, set forth the evidence in detail.

Prior to December 1960, Nancy had been an astute business woman who, though widowed for a number of years, had managed her own business and who had enjoyed good health. The property in question had been conveyed by Nancy in joint tenancy to herself and respondent Norman in two several conveyances in 1952 and 1959. In 1958, at a time when there was no question of her competency, Nancy executed a will whereby she disinherited Sidney and a third son who is not connected with the present litigation and left her entire estate, except certain minor items, to respondent.

In December 1960, Nancy, then 79 years old, as a consequence of a heart attack, was hospitalized. Continued care was imperative and she was transferred to a private sanitarium. She remained there until her death in January 1962.

The attending physician, Dr. Herzen, who had been Nancy's doctor since 1947, testified that on December 24, 1960, Nancy was suffering from arterio lateral coronary occlusion, showing signs of lapse of memory, disorientation and occasional hallucinations, and arterio sclerotic heart disease with cerebral anoxia. The disorientation took the form of talking about one subject and without reason suddenly switching to another. Dr. Herzen further testified that as of January 27, 1961, Nancy was suffering from senility, which he characterized as a degenerative disease, and that from January 27, 1961, until June 2, 1961, there was progressive deterioration. In addition, Dr. Herzen’s records showed that on February 13, 1961, Nancy failed to recognize him; complained to her nurse that the doctor had not seen her in a month or more; that on occasion she thought she was in a card parlor; on April 8 she was failing both physically and mentally; on May 11 her mental condition was getting progressively worse; and on May 25 it was noted that her mental condition “is bad.” On June 6, four days after the execution of the deed, Dr. Herzen noted “Patient is very confused and incoherent. Wants to see people who have died. States she hasn’t seen her son or nurses. ...”