Patin v. Tersip

WOOD, J. Plaintiffs, who are nieces of John E. Tersip, deceased, sought by their amended complaint to set aside and cancel a deed by which he purportedly conveyed certain property to defendant Evelyn (Jeanne) Tersip and William J. Tersip, as joint tenants. Plaintiffs alleged that John E. Tersip, at the time of the alleged execution of the deed, was under the influence of drugs; and that the deed was false, forged, and not executed by John E. Tersip as a conveyance of the property. Defendant, in her answer, denied said allegations regarding the execution of the deed, and alleged that she, as the surviving joint tenant, was the owner of the property. She also filed a cross-complaint to quiet her title to the property. Plaintiffs, in their answer thereto, alleged that the deed was made by John E. Tersip by mistake, and that his consent was obtained through duress, menace, fraud and undue influence exercised by defendant and William J. Tersip, in that, John E. Tersip believed, at the time of executing the deed, that cross-complainant was the wife of William J. Tersip; that in fact she was not then and had not been his wife; that at the time of executing the deed the grantor was lying in a hospital, was nigh unto death, and was under the influence of drugs administered by or under the direction of cross-complainant.

The court found that John E. Tersip died on April 30, 1945; that on March 22, 1945, he executed a grant deed wherein he granted “to said William J. Tersip and Evelyn Tersip [defendant], husband and wife, as joint tenants,” the property involved herein; that at the time of the execution of said deed “John E. Tersip had full and complete capacity to execute and deliver said deed and was not acting under any fraud, duress or undue influence of the Defendant and Cross Complainant or of any person whatsoever, was not under the influence of drugs, and was not acting under any mistake of law or of fact.”; that William J. Tersip died on April 6, 1946, and upon his death his interest in the property passed by right of survivorship to the defendant; that none of the plaintiffs and cross-defendants has any right, title or [137]interest in said property. Judgment was in favor of defendant. Plaintiffs appeal.

Appellants contend that the court, erred in finding that John E. Tersip had full and complete capacity to execute the deed; and that it erred in finding that he was not acting under mistake, fraud, duress, or undue influence, or under the influence of drugs.

John E. Tersip and William J. Tersip were brothers. John met Jeanne Tersip, also known as Evelyn Tersip, in 1939 when John’s wife was a patient in a sanitarium that was operated by Jeanne. His wife died in 1940. In June. 1944, John was a patient in a sanitarium, and upon his request, William and Jeanne took him to his home, and performed nursing services for him. They also lived in his home. Jeanne, who was then a supervisor of nurses at a hospital, employed a housekeeper to care for John during the daytime, while she continued with her work at the hospital. Some of his ailments were high blood pressure (300 over 140), nephritis, arthritis, and hardening of the arteries. He was in bed from July, 1944, until the latter part of December, 1944. Jeanne testified that she and William lived together in John’s home and held themselves out as husband and wife. In February, 1945, John had a “stroke” and was taken to the hospital where Jeanne was employed. On March 22, 1945, William told an attorney at law that John wanted to see the attorney. About 7 p.m. on that date, the attorney went to the hospital and conferred with John concerning the preparation of a will. A will, which was then prepared by the attorney, was signed by John. After the will had been signed by him he asked the attorney about the procedure in probating the will. After some conversation between them concerning that procedure and concerning the effect of a joint tenancy deed, the joint tenancy deed here involved was signed by John and was handed to him by William, who then handed it to Jeanne, who then handed it back to William. On the next day a notary public went to the hospital, and John acknowledged his signature before him. The deed was recorded on that day. March 23, 1945. John died on April 30, 1945. William died on April 6, 1946.