Bennett v. Bennett

CONREY, P. J.

The plaintiff appeals from a judgment in favor of the defendants.

The complaint refers to three deeds made by plaintiff’s testator, one made on March 18, 1913, purporting to convey a described lot to defendant Nelson D. Bennett; one made on June 21, 1913, purporting to conyey another described lot to defendant Edward D. Bennett, and one made on August 12, 1913, purporting to convey a third described lot to defendant Nelson D. Bennett. It is alleged that each of said deeds was executed while plaintiff’s testator, Mary K. Bennett, was insane, feeble, and mentally incompetent to attend to her business affairs, and that at the stated times and while the said Mary K. Bennett was so insane, etc., the defendants unduly influenced her to make said deeds;

[538]

that the deeds were executed without any consideration therefor. It is further alleged that the deeds were never delivered, but were handed to the defendant Edward D. Bennett by the^aid Mary K.. Bennett, with instructions to take said papers and take care of them for her for fear something might happen to her; that thereafter, without said deeds ever having been delivered, they were placed on record by the defendants for the purpose of cheating the said Mary K. Bennett and her estate out of said property. It is further alleged that said Mary K. Bennett never intended to part with the title or any part thereof during her lifetime, but intended said deeds to operate as wills or transfers of the property after her death; that “she was insane, feeble in mind, and mentally incompetent and did not know the difference between a deed and a will, and supposed when she signed said deeds that she was making a disposition of her property in the same way that she would by a will properly executed.”

Based upon these allegations and the alleged facts that on the eighteenth day of March, 1913, the said Mary K. Bennett was the owner and in possession of said lots, and that she died on the sixteenth day of October, 1913, and that the plaintiff is the duly qualified executor of her last will and testament, the plaintiff “therefore alleges that the said real estate hereinbefore belonged to the said Mary K. Bennett at the time of her death, and she was the owner and holder thereof in fee simple, and the same is now a part of the estate of the said Mary K. Bennett and now belongs to this plaintiff as executor of the estate.” The prayer is that said deeds each be declared to be null and void and be delivered up and canceled; that it be adjudged that plaintiff as executor is the owner of said land'and that the defendants have not any right, title, or interest therein, and that defendants be forever debarred from asserting any right, title, or • interest therein.