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sight, and began to try to regulate the Bap | fendants' answer, being the deeds and contist church, of which she was a member, and veyances by which Jerome B. York confinally created such disturbances at the Bap- veyed to the defendants the property in contist church at Pine Bluff, Ark., where she troversy, were executed without consideraworshiped, that it became very embarrassing tion other than a nominal consideration, and to the members of the church, and that were executed by Jerome B. York as alleged Jerome B. York, at the request of the mem in the petition of the plaintiff; that said 10bers of the church that something must be struments were executed while under the done to restrain his wife, together with the undue influenco exercised over Jerome B. other members of the family, agreed that York by the defendants. it was best that the plaintiff be treated by On the 9th day of September, 1921, the some competent nerve and mind specialist. court, after having heard the evidence of Thereupon she was taken to Cincinnati Sani- the respective parties to said action, found tarium of Ohio, where she was treated. the issues made under the pleadings in favor

The answer in detail alleged the con of the defendants, and entered judgment definement and treatment of the plaintiff in creeing that the plaintiff's petition be disthe Cincinnati Sanitarium at different times missed. A timely motion for new trial was until October 13, 1908, the removal of the filed by the plaintiff, which was by the trial family from Pine Bluff, Ark., to Memphis, court overruled, exceptions allowed, and the Tenn., and the sending of the plaintiff from plaintiff prosecutes this appeal to reverse the Memphis, Tenn., to Oak Grove Sanitarium order of the trial court denying her motion at Flint, Mich., upon the recommendation of for a new trial and to vacate the judgment. two or more eminent specialists in mental Numerous errors of assignment have been and nervous diseases.

assigned as grounds for reversal of the judg. The defendants alleged that the plaintiff ment of the trial court. remained at Oak Grove Sanitarium for On an examination of the record in this treatment until she was clandestinely taken cause two questions are presented that apfrom the sanitarium in July, 1913, by her pear to be decisive of this appeal. The first daughter, Mrs. Charles Nelson, of Louisville, is, this being an equitable action, whether Ky., against the advice of the physicians in the judgment of the trial court is clearly charge of the sanitarium.

against the weight of the evidence. The The answer alleged that Jerome B. York second, the legal question, is expressed in at all times had uppermost in his mind the the language of the counsel for the plainidea of always providing for his wife, the tiff as follows: plaintiff, and arranging it so that his wife would have every comfort and care as long

"Can a married man, by gifts inter vivos, give as she lived, and, with this end in view, de-away personal and real property acquired

during coverture by the joint industry of himvised to respondents, in whom Jerome B. self and wife, and thus defeat his wife of any York had implicit confidence, and knowing, interest in such property?" too, that the respondents had great love for their mother, and would do everything in

The record of the evidence introduced on their power for her comfort, $70,000 in trust, as shown by his will, to be invested by his the trial of this cause is quite voluminous. executors in a safe way for her benefit, and Numerous witnesses testified orally and by from the income of same to pay plaintiff the deposition; many instruments of writing, consum of $300 per month, or such sums as may sisting of deeds, conveyances, and transfers be needed to provide for her every comfort of property, and many letters of correspondand attention; that on the 25th day of Janu-ence were placed in evidence by the reary, 1918, Jerome B. York conveyed certain spective parties. personal property and real estate to the de- It is clearly established by the evidence fendants for certain valuable and monetary introduced that Jerome B. York, husband considerations, and for the love and affection of the plaintiff, was a man of extraordinary which he had for them, a copy of the con- business ability, intelligent, competent, and veyance being attached to the answer as an successful as a business man; that during exhibit

his active business career for about one-half The answer in great length detailed the century he accumulated an estate of the transactions between the defendants and value of several hundred thousand dollars. Jerome B. York, deceased, during his life- It does not appear from the evidence at the time, and prayed the judgment of the court time he made the gifts and conveyances of dismissing the plaintiff's petition, and that his property in controversy just what the defendants' title to the property involved amount of property he owned. He owned be quieted against any claims of the plain- several thousand acres of real estate located tiff, and for all proper equitable relief. in Tennessee, Mississippi, and Oklahoma, of

The plaintiff filed a reply denying gener- which there is no evidence as to the value. ally the affirmative allegations of the de. On the date of these gifts and conveyances fendants' answer, and alleged that the in- to the defendants, and date of the will, it is struments attached as exhibits to the de- quite clear that he must have had an estate

(209 P.) of the value of more than a half million “Mrs. C. L. Nelson, Louisville, Ky.-Dear dollars.

Daughter: I am so as to be up most of the The evidence unquestionably establishes time but am not well but think if I am careful the fact that in the year 1901, while the of myself for a few days I will be all right. I plaintiff and her husband, Jerome B. York, that I pay your mother fifty thousand in cash

have thought carefully over your proposition resided in the city of Pine Bluff, Ark., the and five hundred per month and I see no reason plaintiff's mind became affected to such an why I should do this. If she is ever well I extent that it was the unanimous opinion of of course will want her to be with me that is the entire York family and physicians whose if she ever gets in a condition where it would integrity and ability is unquestionable that be wise to keep her out of a sanitarium but as the plaintiff be sent to a sanitarium for treat-long as she is in the condition that Dr. Burr ment. After proper consideration of the mat- writes me that she is in I do not think it best ter by the family, the plaintiff was sent to for her to be away from a sanitarium under the Cincinnati Sanitarium of Cincinnati, she seems to be satisfied with you and you are

the care of a competent doctor. However, if Ohio, for treatment, and was treated at this in a position to take good care of her in sanitarium at different times until some time every way I am willing for her to stay with in the year 1908. In the year 1908 the fami- you until she shows signs of growing worse for ly moved to Memphis, Tenn. While living want of proper sanitarium treatment. there in the year 1911 it became necessary to

"Of course while she is with you I want to send the plaintiff to a sanitarium for treat- pay all proper expenses for her comfort care ment again by reason of her mental condi- with her in every way and let me know if she

and attention you will have to be very careful tion. She was sent to Oak Grove Sanitarium becomes dissatisfied. I will pay the bills at Flint, Mich., for treatment, where she re- which you have already sent to me on her acmained until she was abducted from the count and herewith inclose you my check for sanitarium by her daughter, Grace York Nel- $150 to be used for her comfort and support son, some time in the year 1913. After her and I will remit you from time to time while abduction from the Sanitarium at Flint, she is with you money to cover her board and

all other expenses. Mich., in 1913, she instituted a divorce action at Memphis, Tenn., against her husband, Jer- but let me know when anything is needed or

"You will please not charge anything to me ome B. York, in which she charged Jerome B. when she needs money and I will send it. York with immorality and other charges of "Hoping you & Mr. Nelson arrived home safe a very serious nature.

and found all well. It appears that the two daughters Grace "As ever your father, York Nelson and Minnie York Anderson were

“[Signed] J. B. York." responsible for the abduction of the plaintiff from the sanitarium and the institution of

On October 24, 1913, replying to the letter the divorce action. It is apparent from the of Mrs. Grace York Nelson of October 20th, evidence that Jerome B. York was very the following paragraph of Mr. York's letmu hurt and grieved over the abduction of ter to his daughter show the attitude of Mr. his wife from the sanitarium and the institu-York towards his daughter with reference tion of the divorce action; that the divorce to her demands upon him for the care of his action came on for trial in the year 1914 at wife, Mrs. Elizabeth York. Memphis, Tenn., and that the two daughters "I received your letter of Oct. 20th. It Grace York Nelson and Minnie York Ander- seems to me that you are trying in every way son took a very active part against their fa- possible to embarrass and annoy me. As soon ther, Jerome B. York, in the trial of the as you got your mother out of the sanitarium causé. The action was dismissed after the where she was being treated for mental disorintroduction of the evidence on behalf of husband made most unreasonable demands up

der, and got her in your custody, you and your Elizabeth York.

You first demanded that I pay into The evidence plainly establishes the fact the hands of your mother $50,000, and pay her that after Elizabeth York became mentally de- $500 per month in addition, though you knew ficient and affected by insane delusions she she had been declared of unsound mind. After had a fised hatred and aversion for her hus- I declined this most unreasonable proposition, band, Jerome B. York, and it was impossible you, it seems, have tried to make a statement for him to reside with her as her husband; your home, and have made it so large that it is

of what your mother's expenses would be at that after Grace York Nelson abducted her out of all reason. mother from the sanitarium she planned to "I have already written you just what I will keep her with her in her home in Louisville, do for your mother while she is with you; it is Ky.; that before removing her mother from unnecessary for me to repeat it. No doubt, you the sanitarium she had written her father have my letters and you can read them over. that she would keep her mother for $3,000

"I have not been very well and expect to go per year, but after she removed her mother where I will go, but I will make proper provi

away for some time. I do not know just from the sanitarium she demanded that her sion for your mother before I go, and have the father pay her mother $50,000 in cash and money sent to you at intervals while she is with $500 per month, to which demand Jerome B.

you. York made the following reply:

"You will regret some day your conduct and

on me.

the ugly letters that you have been writing me, the residue, rest, and remainder of his esand I want to say that I will have no more of tate, both real and personal, to Mary York this. If you write me one more letter, such as Trigg and Robert York in equal shares. you have been writing, then all communication

Subsequent to the execution of this will, between you and me will be cut off. I will not in the year 1916, Jerome B. York deeded to receive any communication from you, but will return all letters unopened, and will not com- Mary York Trigg and Robert York certain municate with you in any way.”

real estate. Thereafter, on the 25th day of

January, 1918, by an instrument in writing, The evidence to our minds conclusively he made gifts to Mary York Trigg, his shows that Grace York Nelson was using her daughter, and Robert York, his son, by which mother, while in a demented condition of he gave them a large portion of his estate, mind, as a means to obtain unreasonable consisting of shares of stock in the York sums of money from her father, and that Lumber & Manufacturing Company and nuwhen she failed that she caused the institu- merous other companies, several thousand tion of a divorce action by her mother dollars in cash, bonds, notes, and a consideragainst her father.

able parcel of real estate. The evidence of Mrs. Lewis Miller, sister On the date of the death of Jerome B. of Elizabeth York, and James M. Bowman, York he was seized with an estate valued at brother of Mrs. Elizabeth York, who attend from $100,000 to $150,000. ed the divorce trial in Memphis in 1914, with [1] The evidence discloses that prior to regard to statements made by Jerome B. the institution of the divorce action, and beYork in respect to his attitude towards Grace fore Jerome B. York decided to disinherit York Nelson and Minnie York Anderson, his two daughters, Grace York Nelson and clearly establishes the fact that, because of Minnie York Anderson, he had been a kind the treatment of his daughters toward him and indulgent father towards his children. in attacking his character, and in humiliat. He at one time made a gift to each of his ing him by the divorce action, and numerous four children of about $20,000. We are uninsulting letters written to him by these able to concur in the view of counsel for the daughters, he had firmly resolved in his mind plaintiff that the gifts made to Mary York that these two daughters should not be the Trigg and Robert York in the years of 1916 beneficiaries of his estate upon his death. In and 1918 were obtained by the defendants a letter written by him on May 8, 1919, to through undue influence or fraud, but that his son Robert, he plainly expressed the the gifts were the free and voluntary acts of thought that he would not soon forget the an intelligent man of strong personal chartreatment he had received from them. acter, and that the judgment of the trial

The evidence shows that after November, court in this respect is amply supported by 1914, Jerome B. York, feeling so keenly with the evidence introduced in the trial of the humiliation the things he had suffered by cause. The rule is, in actions in equity the reason of the conduct of his two daughters judgment of the trial court will not be retoward him, refused to communicate with versed unless the judgment is against the them or receive their letters from the post clear weight of the evidence. Hogan et al. office which they would write him.

v. Grimes et al., 78 Okl. 184, 189 Pac. 353; Prior to the divorce action in 1914 Jerome Jones v. Thompson, 55 Okl. 25, 154 Pac. 1139; B. York had made two different wills in Miller v. Howard, 76 Okl. 237, 184 Pac. 773; which he provided that his four children Haynes v. Gaines, 76 Okl. 268, 185 Pac. 74. share equally in his property after making [6] It is admitted that the will of Jerome provision for the support of his wife in the B. York, under section 8341 of Revised Laws sum of $60,000. The evidence shows that, 1910, is void as to the wife of Jerome B. after the divorce action had been dismissed, York, the plaintiff in this action. The statJerome B. York returned to his home at Val- ute prohibits the husband or wife from willliant, Okl., and executed his last will and ing away from the other more than twotestament on December 12, 1914, in which he thirds of their property. In this situation it bequeathed in trust for his wife, Elizabeth is obvious that the wife has the right to elect York, for and during her natural life, the to take under the will or share as an heir sum of $70,000, naming Robert York and one-third of all of the estate with which the Mary York Trigg as trustees; said sum to deceased was seized on the date of his death. be invested by them in a safe way for the The gifts made by Jerome B. York to his benefit of his wife, and from the income of children Mary York Trigg and Robert York the same he directed that they pay to her were made in the years 1916 and 1918 by for her support the sum of $300 per month, proper conveyances in writing, acknowledged or such sums as may be needed to provide and recorded according to law, and an actual for her every comfort and attention. By the delivery of the property was made to the will he bequeathed to Minnie York Anderson donees. The evidence discloses that the do$500 and Grace York Nelson $100. After nees took the actual possession of the propmaking other minor bequests to other rela-erty. The last gifts were made on January tives, such as grandchildren, he bequeathed 25, 1918, more than 18 months prior to the (209 P.) death of the donor, and, under the universal, defrauding the wife, transfer his real or perrule adhered to by the authorities, every- sonal property. 18 C. J. § 114; Samson v. thing was done necessary to constitute a val- Samson, 67 Iowa, 259, 25 N. W. 233. id gift inter vivos.

In the case of Samson v. Samson, supra, The legal question presented and argued the same contention was made against the by counsel for plaintiff is that, Jerome B. right to make a gift by reason of the proYork being prohibited by section 8341, Re hibition in the statute against bequeathing vised Laws 1910, from bequeathing by will property by will, as is argued here, and the more than two-thirds of his property away court in disposing of the contention said: from his wife, he cannot do indirectly by

"It is finally contended that said gift is void gifts that which he is prohibited from doing as against public policy. By the transaction by a testamentary disposition of his property. the deceased was divested of much the greatThis position is untenable, and this court er part of his estate; and the argument of has decided the question adversely to the counsel is that, as the husband cannot by will contention made by counsel for the plaintiff. divest his widow of the distributive share which In the case of Garrison v. Spencer et al., 58 the law gives her in his estate, he should not Okl. 442, 160 Pac. 493, in the first paragraph tributing it during his lifetime to his heirs.

be permitted to accomplish that result by disof the syllabus, this court held:

The ready answer to this claim is that it is in “A married man may, during his lifetime, the personal property of which the husband give away his separate property, and such gift dies seised that the law gives the widow a diswill be valid and binding against his widow, tributive share. Code (1873] $ 2436. But durwhere she is not a creditor within the contem- ing his lifetime she had no inchoate right in plation of the statute against fraudulent con- such property, and he may make such disposiveyances."

tion of it during his lifetime as he sees fit. If

he sells it, or makes any other disposition of it In this case the court adhered to the rule by which he is divested of the ownership, the announced in Farrell v. Puthoff, 13 Okl. 159, wife has no claim upon it after his death. The 74 Pac. 96, where the rule was announced as law has placed no restriction or limitation on follows:

the power of the husband to make such dispo,

sition of his personal property during his life"A married man, during his lifetime, may give time as he may elect." away his separate property, real or personal, acd such gift will be valid and binding as In the case of Vosburg v. Mallory et al., against his lawful heirs after his death, and 155 Iowa, 165, 135 N. W. 577, Ann. Cas. where the effect of such gift is not to defraud 1914C, 880, the Supreme Court of Iowa adhis creditors, the administrator of his estate hered to the rule announced in Samson 'v. cannot maintain an action to recover the prop. Samson, supra. In this state, under section erty so transferred."

8419, dower and courtesy were abolished, This court in Farrell v. Puthoff approved and the wife's interest in her husband's prop the rule announced in Williams v. Williams erty, both personal and real, is by inherit(C. C.) 40 Fed. 521, where the circuit court of ance. the United States said:

[3, 4] It must be observed that there ex“The main question, in its broadest sense, is ists a well-defined distinction between a gift simply this: Can a married man give away inter vivos and a testamentary disposition his property, during coverture, for the purpose of property. A gift inter vivos is complete of preventing his wife from acquiring an in- upon a delivery by the donor of the property terest therein after his death? The law seems to the donee during the life of the donor, and to be that if such gift is bona fide, and accom- the property passes absolutely to the donee. panied by delivery, the widow cannot reach the It is unnecessary to the validity of a gift that property after the donor's death. Neither the wife nor children have any tangible it be made under the same formalities that interest in the property of the husband or fa- are required under the statutes for the exther during his lifetime, except so far as he is ecution of a valid will. A valid gift may be liable for their support, and hence he can sell by parol and a delivery of the property, and it or give it away without let or hindrance the title of the same thereby passes to the from them. Of course, the sale or gift must be donee irrevocably. But in the disposition of absolute and bona fide, and not colorable only. And if the sale or gift would bind the grantor it property by will the testator may revoke the would bind his heirs."

will at his pleasure, and the same does not

become operative or effective until the death [5] The rule under the common law was, of the testator and its probation. under the statutes, where the wife had the Many authorities hold that a donatio morright of dower in the land of her husband, tis causa is in form a testamentary disposiand the right had once attached, the hus- tion, for the reason it is revokable during the band could not by gifts deprive the wife of donor's life, and on his death, if there be a her dower interest in the lands. But under deficiency of his assets, the subject of his rights of inheritance conferred upon the wife gift is subject to his debts, and does not beby statute, the rule is that the husband may, come an absolute gift until the donor's death. during his lifetime, by gifts or conveyances Jones v. Brown, 34 N. H. 439; Baker v. made in good faith, without any intention of Smith, 66 N. H. 422, 23 Atl. 82; Schouler, Personal Property, 138. But other author-, as an incompetent, and in all sales and conities hold that, while a donatio mortis causa veyances of such property had the guardian resembles in certain particulars a testamen- of his wife join in such sales and conveytary disposition, still it is distinguishable as ances under proper orders of the probate to the subject matter of the gift in that the court. We are clearly of the opinion that gift is delivered to the donee during the life there is no restriction or limitation upon Jerof the donor, and that the property at the ome B. York in disposing of his property death of the donor does not pass into the during his lifetime in the absence of fraud. hands of the executor or administrator, but Small v. Small, 56 Kan. 1, 42 Pac. 323, 30 L. remains with the donee. In this species of R. A. 243, 54 Am. St. Rep. 581; Walker v. gift, on the death of the donor the donee Walker, 66 N. H. 390, 31 Atl. 14, 27 L. R. A. takes the title to the property instead of the 799, 49 Am. St. Rep. 616; Deke v. Huenkeheirs, according to the intention of the donor meier, 289 Ill. 148, 124 N. E. 381; Hall v. as expressed during his lifetime, by deliver- Hall, 109 Va. 117, 63 S. E. 420, 21 L. R. A. ing the property to the donee, although he (N. S.) 533'; Dudley v. Dudley, 76 Wis. 567, may have reserved to himself the income 45 N. W. 605, 8 L. R. A. 814; Roberston, from such property during his lifetime. Vos- | Adm., V. Roberston, 147 Ala. 311, 40 South. burg v. Mallory et al., supra; Conner v. 104, L. R. A. (N. S.) 774, 10 Ann. Cas. 1051. Root, 11 Colo. 183, 17 Pac. 773; Marshall v. Counsel for the plaintiff contend that the Berry, 13 Allen (Mass.) 43.

case of In re Estate of Stone (No. 10636; It would undoubtedly require a strained Okl. Sup.) 206 Pac. 246, opinion filed April and unwarranted construction of section 11, 1922 (not yet officially reported), and the 8341, Revised Laws 1910, prohibiting the case of Davis v. Davis, 61 Okl. 275, 161 Pac. husband from bequeathing more than two- 191, support their contention that the plainthirds of his property away from his wife, tiff had a tangible vested interest in the propto construe it as providing a prohibition or erty of Jerome B. York during his lifetime. restriction against a married man disposing We cannot agree with counsel that these of his property by conveyance, gift, or other cases support their position. wise during his lifetime. The statute is not In the Stone Case the court was construing susceptible of such construction.

the second paragraph of section 8418, ReUnder section 3351 of Revised Laws 1910, vised Laws 1910, wherein it is provided that, the husband owes the duty to his wife of sup- if the decedent leaves no issue, the estate porting her out of his property. It is plain goes one-half to the surviving husband or that the only claim or interest that the wife wife and the remaining one-half to the dehas against the property of her husband dur- cedent's father or mother unless the property ing his lifetime is that it is liable for her was acquired by the joint industry of the proper support. It appears from the evi- husband or wife during coverture; then, in dence in the case at bar that Jerome B. York that event, the whole estate should go to the during his lifetime at all times amply pro- survivor. The statute has no application to vided for the support of his wife, the plain- a case except where there is no issue. tiff in this action. In his will he made.ad- In Davis v. Davis, supra, the question inequate provision for her support. Should she volved was the jurisdiction of the district elect not to take under the will, she would court where the husband and wife were liv. inherit a one-third interest in the estate of ing separate and apart, but neither had sufher deceased husband, valued from $100,000 ficient grounds upon which to secure a dito $150,000. Under no view of the facts can it vorce. It was held under section 4966 of Rebe said that the deceased failed to discharge vised Laws 1910 the court was vested with any marital duty that he owed to the plain- jurisdiction to make an equitable division of tiff in this action during the existence of the property of the parties or of either of such relation. Any conveyance or gift by them. It is true that the court used the lanthe husband of his property not in fraud of guage if the property had been acquired durthe marital rights of his wife are valid as ing the wedded life of the parties by their to her.

joint effort, the wife had a vested interest in The evidence in this action clearly estab- such property which she does not forfeit even lishes the fact that for 30 years prior to the though her conduct cannot be justified. The death of Jerome B. York his wife, the plain- question as to the interest of the wife in proptiff in this action, by reason of being insane, erty acquired during coverture was not a was wholly mentally incompetent to transact material question in the case, and we are of the ordinary business affairs of life, and, if the opinion the phrase "vested interest” was the contention of counsel for the plaintiff is not used in the sense as contended for by to be sustained that Jerome B. York was re- counsel for the plaintiff. It is clear that the stricted in the conveyance or transfer of his wife had no vested interest in the property property, it would have been necessary for until the court had decreed her title to her him in order to carry on the ordinary trans- equitable portion of the property as provided actions with reference to his property to for in the statute. While it is true that have had a guardian appointed for his wife courts of equity will be vigilant in protect

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