Richards v. Donner

Paterson, J. This action was brought by A. W. Peck in his lifetime (for whom his executor, Richards, has been substituted), for the purpose of canceling a deed of gift made by said Peck to the defendant, M. E. Donner, while he was in such an enfeebled mental condition that he did not understand or appreciate the nature and consequences of the execution and delivery of the deed.

A judgment was rendered for the plaintiff, and from that, and an order denying her a new trial, the defendant has appealed.

The court found, in substance, as grounds for rendering judgment for the plaintiff, that A. W. Peck, while a [208]visitor at the house of the defendant’s mother, where the defendant resided, on the twelfth day of April, 1882, received a severe paralytic stroke, which greatly weakened his physical and mental faculties; that while in such condition, on the twentieth day of April, 1882, still sojourning in the house of defendant’s mother, he proposed to make a will of the property in controversy to the defendant, towards whose family for many years he had entertained intimate and familiar friendship; that on the next day, by the advice of John Walker,, a neighbor and friend of that family, and the acting executor of the defendant’s father, he was induced to consent that a deed, rather than a will, should be prepared, Walker having assured him it would be more advantageous, and less trouble and expense, so to transfer the property to Mary E. Donner; that he had no other advice on the subject, and that Walker did not explain to him the difference between a will and a deed in their effects and consequences as to him, A. W. Peck; that on that day, and following immediately such advice, and without such explanation, a deed of grant, bargain, and sale, upon consideration of love and affection, was prepared and presented to 'him, which he there and then signed and acknowledged, and that it was the deed under consideration in the cause,—he believing, at the time he signed the deed, that he was in imminent danger of death, having informed the party witnessing the same that “he might not be living on the following day”; that after the signing and acknowledging of said deed, it was at his request taken in charge by the notary taking the acknowledgment thereof; that he afterwards, on the third day of May, 1882, procured his old friend Beach to correct the description therein of the property conveyed, and gave it to the mother of the defendant for the latter; that there was no consideration moving him, in the execution of the deed, save love and affection; that at all those several times he stated he was to have the