Lamb v. Wilke

ALLEN, P. J.

Action to set aside a deed executed by one James D. Watson, deceased, to appellant while deceased was of unsound mind and acting under undue influence of appellant. Plaintiffs and respondents are nephews and nieces of the deceased. The action was tried by the court, which finds all of the material allegations of the complaint to be true; that Watson was of the age of seventy-six years at the time of the execution of the deed and was of unsound mind and incompetent to make a contract; that at such time he did not possess a mind sufficiently clear and strong to enable him to know and understand the nature of the act in which he was then engaged, or to know and recollect those who were the natural objects of his bounty; that at the time of the execution of the deed he was sick and suffering from a disease causing his death two days thereafter; that he was upon his death-bed when the deed was signed; that deceased had no independent advice, but acted solely upon the inducement and advice of defendant; that no consideration was paid for the deed; that at the time of the conveyance of said property, and for some time prior thereto, Watson implicitly confided in and trusted defendant, and wholly depended upon defendant’s advice and counsel in matters of business, and a relation of trust and confidence existed between them; that said deed was delivered and recorded on the twenty-fourth day of January, 1908, the day succeeding the date of its execution and the day preceding the date of the death of the grantor; that defendant immediately took possession of the property; that Watson did not know the nature or consequence of his act, and was incapable of understanding its force and effect at the time of the execution of the deed, and was not then of sound and disposing mind. The court set aside the deed, and from this judgment and an order denying a new trial defendant appeals.

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The principal specifications presented by appellant relate to the insufficiency of the evidence to justify the findings. No good purpose would be served by incorporating herein a

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of the evidence. We think it sufficient to say that a careful examination of the entire record demonstrates that there was some competent evidence before the court justifying each and every finding by the court made. The cause was tried by a learned jurist, competent to weigh the testimony and consider the force and effect which should be given the statements of witnesses. These witnesses, whose statements were conflicting and irreconcilable, were before the trial court, and it determined to what statements credit was due, and it is not within the province of this court to weigh the testimony, thereby substituting its judgment for that of the trial court.