Tuttle v. Bessey

PEEK, J. The present controversy arises out of two deeds; the first from the decedent to herself and her son, Francis Marion Bessey, as joint tenants; and the second from herself and her son to himself and his wife, Pearl Bessey, as joint tenants. The plaintiff administratrix, who is a granddaughter of the deceased, filed her action to set aside both deeds upon the ground that decedent was of unsound mind at the time of the execution thereof; that defendants paid no consideration therefor; and that the execution was procured by fraud and undue influence. Defendants denied generally the specific allegations of plaintiff’s complaint. At the conclusion of the trial on the issues so joined, the court found in favor of defendants. Plaintiff’s appeal from the judgment is essentially an attack upon the sufficiency of the evidence and appears to be without merit.

The record shows that when the deeds were executed, the decedent was 85 years of age. Her eyesight was poor, and she wore a hearing aid. She remembered anniversaries and birthdays, wrote letters to friends and relatives until her last illness, kept her appointments, was active and attended church regularly. A neighbor, Riordan Hayer, testified that decedent visited him about once a month; that her memory was better than average for her age; that in his opinion she knew, the [727]effect of a deed; and that she told him in 1942 that the property in question was to go to her son, Francis, when she died. A grandnephew, Richard Bessey, testified he saw her for several hours at a time once or twice a week; that her memory was good and that she knew the effect of a deed; that she had told him on several occasions that she was going to arrange matters so that the property in question would not be willed, because wills could be broken, and that the property would go to her son. A neighbor, Mrs. Russell, testified that decedent was alert to her last illness, and she believed her to be competent. Mrs. Russell’s husband, LeRoy, testified that he had known her for several years, saw her daily and talked with her approximately twice a week. To him her memory seemed about the same as that of many older persons, and in his opinion she knew what she was doing. She told him that she originally owned 10 acres; that a daughter, Mrs. Cory, had received 5 acres; that a stepson, Jimmy, had received 3 acres; and on several occasions she had told him that the defendant, her son, would get the house and the 2 acres which were left. The witness further testified that decedent asked him if he knew where a deed could be prepared, and together they went to a realtor’s office where the second deed was prepared and signed; that the realtor asked decedent, following the preparation of the deed, if that was what she wanted, and she replied that it was.