Watson v. Jackson , 294 S.W. 328 ( 1927 )

Careful consideration of the evidence in the statement of facts sent to this court has convinced us that it did not warrant a finding that appellee was without mental capacity to make the deed to his mother in question, and that the trial court therefore erred when he refused appellant's request that he instruct the jury to return a verdict in their favor.

The burden was on appellee to prove such mental incapacity, and we think he wholly failed to discharge it. There was evidence that the kind of epilepsy from which appellee had suffered 20 or more years was incurable, and that its effect was to gradually weaken and finally destroy the mind of its victim; but there was no testimony of probative force showing that in appellee's case mental incapacity wrought by the malady had progressed so far that he was at all times incapable of binding himself by such a contract as the one in question. The testimony was that before appellee executed the deed such incapacity existed only during the time he was in the throes of a fit and while recovering from one; and there was no testimony showing he was suffering from a fit or the effects of one at the time he executed the deed. The only direct testimony on that point was that of Dr. Bass, the superintendent of the epileptic colony, and it was that appellee was not then suffering from the effects of an epileptic fit.

As we understand the rule applicable, an inference that a grantor was mentally incapable of binding himself at the time he executed a deed cannot be drawn from testimony showing he lacked such capacity at other and different times, unless it appears that such incapacity at such other and different times was in its nature permanent and continuous. Where, as in this case, incapacity existed only at times and the grantor at other times did not lack mental capacity, a presumption of incapacity at a particular time cannot be indulged, and to support a judgment invalidating the grantor deed there must be evidence of probative force tending to show that he was mentally incapable of binding himself by a contract at the very time he executed the deed. It has often been held that "neither insanity nor testamentary incapacity can be presumed from the fact that a testator has long suffered from epilepsy." Re Will of Derusseau,175 Wis. 140, 184 N.W. 705, 16 A.L.R. 1412, and note at page 1418; and see, as authorities more or less directly supporting what is said above, Caddell v. Caddell, 62 Tex. Civ. App. 461, 131 S.W. 432; Armstrong v. Burt (Tex.Civ.App.) 138 S.W. 172; Furlong v. Tilley, 51 Utah, 617,172 P. 676; 13 C.J. 262; 18 C.J. 218, 221, 428, 443; 22 C.J. 146; 32 C.J. 760; 1 Elliott on Contracts, § 366; 1 Alexander on Wills, §§ 356, 357; Goldberg v. Homestead Co., 78 N.J. Law, 70, 73 A. 128; State v. Kelly, 77 Conn. 266, 58 A. 705.

The judgment is reversed, and judgment will be rendered here in favor of appellants.