I am not unmindful of the great benefit this gift of some $200,000 will be to a worthy educational institution and to the young people whose education may be advanced by its provisions, but our decision should be based upon the law and the evidence, which, in my opinion, do not sustain the judgment of the trial court.
The important facts to keep in mind are these: At the time the contract and deed were executed, Miss Banning was on her deathbed; she was then 70 years of age; she executed the contract about 24 hours after she suffered a severe heart attack and the deed about 12 hours prior to her death; she was in great pain or in a stupor practically all the time after she was stricken; none of the three doctors expected her to recover; the details of the transaction had not been fully agreed upon before she was stricken, but a contract was to be drawn and submitted to her for study; it is not clear that she had finally decided to make the gift to the University, since she told witnesses during the week preceding her last illness that Mr. Hogan and Dr. Smith were trying to get her to make the gift but that she had worked too hard to give her property away and she intended to see that Fred Anselman was well provided for; in 1934 the two sisters made reciprocal wills under which each devised and bequeathed to the other all her property, and each will provided that in event the other died prior to the death of testatrix the property should go to certain named relatives; neither will was ever revoked and both were admitted to probate so that the last survivor was at least under a moral obligation to let the property go according to the will; the contract is long, covering twelve pages of the record, and containing 15 numbered paragraphs, exclusive of the 14 paragraphs of the description; she had not *Page 540 seen the contract prior to its presentation to her for execution, and had not had an opportunity to study it; the contract was intricate and involved and contained several technical provisions that it would have taken a capable lawyer some time to fully understand; by the contract and deed she stripped herself of all her real estate, of the value of some $200,000, except the home where she resided, and which she and her sister had spent their lifetimes accumulating; the transfer was without consideration and was not to a close relative; it does not appear that she asked any questions as to the meaning of any of the provisions of the contract; she was suffering from shock and was in a stupor and under the influence of sedatives and opiates most of the time after she was stricken and, as Dr. Bradley, her attending physician, testified, she signed the contract and deed automatically; she went into a stupor at short intervals; her speech came haltingly; she could not give the nurse a history of her case; much haste was exercised in procuring her signature to the instruments, evidently because it was thought that she was likely to die at any time; she did not have the benefit of competent independent advice, in private, at the time she execuated said instruments, though she had on Saturday prior to her being stricken conferred privately with a competent attorney, but the details were not finally agreed upon at that conference; she was frequently delirious as shown by the fact that she seemed to think her deceased sister, Sophia, was still living and wondered if she would approve of the transfer to the University, and she imagined, so Swisher testified, that apples were on the dresser about noon Saturday when there were none there. At the time she was told that Hogan was there Thursday afternoon with the contract she said: "If I could just have some rest, but people keep bothering me." Thursday night she complained to the nurse, Miss Hull: "If they would go away and leave me alone I could get some quiet and rest and would be all right." Dr. Langston, a witness for the defendant, testified that it "certainly would exhaust her to do a lot of talking and thinking and so forth, would certainly be exhausting" and his written report recited: "She is critically ill and it is very problematical as to the outcome."
The record discloses that after Miss Banning suffered the heart attack Wednesday afternoon and before she was taken to the hospital about 9 o'clock that night, she was given two doses of morphine of 1/4 grain each; that while she was in the hospital she was given three doses of morphine of 1/8 grain each, four doses of dilaudid of 1/32 grain each (the equivalent of 1/4 grain of morphine each), nine doses of pheno-barbital and one dose of nembutal. These medicines were intended to induce sleep and relieve pain. And she was given other medicines.
The contract was signed about 3:00 p.m. on Thursday. On that morning at 9:30, Miss Banning was given a dose of phenobarbital, and at 12:45 p.m. she was given 1/8 grain of morphine. At 4:10 p.m., soon after the signing of the contract, she was given 1/8 grain of morphine.
The deed was signed at about 2:30 o'clock p.m., on Saturday. Dr. Bradley was called at noon. At 12:20 p.m. she was given a dose of medicine prescribed by Dr. Bradley. At 1:20 p.m. she was given a vitamin brown tablet. Soon after the signing of the deed she was given a dose of phenobarbital.
The attending physician, Dr. Bradley, and the two nurses, Miss Hull and Miss Baubien, were in better position to know her actual condition than were the other witnesses, and they were positive that she was in a stupor much of the time, largely as a result of taking the sedatives and narcotics, and that she was nervous and restless most of the time, and that she was unable to comprehend the nature and effect of the contract and deed. Miss Hull *Page 541 thought that she could possibly understand the words of the contract but not its meaning.
The majority opinion states that Miss Banning called Mr. Hogan on the morning after she was stricken and asked him to have the contract brought out for her to sign. In view of her critical condition that morning, it is more probable that some one interested in getting the contract signed called Mr. Hogan, as argued by the appellant. This was within 24 hours after she suffered the heart attack, and she was so ill that morning that Dr. Smith prevailed upon the hospital authorities to give her a private room, which was done.
That Miss Banning was in no condition, physical or mental, to execute the instruments is shown by the testimony of Mrs. Hayes, a witness for the University, that it irritated her (Mrs. Hayes) for them to present the instruments to Miss Banning for her to sign, in view of her condition, and that Miss Banning became very nervous after signing the deed, and asked Mrs. Hayes if she thought she had done the right thing and if she thought Sophia would approve of the gift. This shows that she should have had independent advice at the time she signed the deed. That she did not know what she had signed on Thursday is shown by the fact that on Saturday she asked Swisher to find out what she had signed, and she then stated that "they made me sign it."
According to the testimony of the defendant, it was tentatively agreed at the conference on Tuesday before she was stricken that Mr. Lytle would prepare a contract and will to re-arrange her affairs. The will was never presented to her, so that the tentative agreement was not fully carried out. The record does not disclose why the will was not presented to Miss Banning at the time the contract was presented to her.
The rules of law that, under the record, should cause a reversal of the judgment are as follows:
1. An action for cancellation of instruments is one of equitable cognizance, and on appeal from a judgment in such an action this court will weigh the evidence and reverse the judgment if it is clearly against the weight of the evidence. Hogan v. Leeper, 37 Okla. 655, 133 P. 190.
2. "The test of capacity to make a deed or conveyance is that the grantor shall have the ability to understand the nature and effect of the act at the time the conveyance is made." Antle v. Hartman, 193 Okla. 524, 145 P.2d 756.
3. "It is settled law that where there is a great weakness of mind in a person executing a conveyance of land, arising from age, sickness, and any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party or his representatives or heirs, interfere and set the conveyance aside." Powell, Adm'r, v. Hughes, 189 Okla. 241, 116 P.2d 896.
4. "Where an aged grantor, in the last hours of her life, executes a conveyance purporting to convey her entire estate without any, or grossly inadequate, consideration, to a stranger to the blood of the grantor, a court of equity will presume that the grantor did not appreciate the consequences and effect of the grant, and the burden is cast upon the claimant under the conveyance to overcome this presumption by showing that the grantor had the benefit of proper, independent advice concerning the proposed grant."
"And, 'proper, independent advice,' in this connection, means that the grantor had the benefit of previously conferring privately and fully with reference to the proposed grant, with a person disassociated from the interests of the grantee and competent to properly and impartially advise such grantor of the consequences and effect of the proposed grant." Zwirtz v. Dorl, 123 Okla. 284, 253 P. 75.
In view of the principles of law just *Page 542 stated and the evidence above briefly summarized, it is my opinion that Miss Banning was not mentally competent to understand the nature and effect of the contract and deed at the time they were signed; that, in any event, she should have had the benefit of competent independent advice, in private,at the time she was asked to sign them, as to the effect and wisdom of signing them, but that she had no such advice; and that the contract and deed should be set aside.
For the foregoing reasons, I respectfully dissent.
OSBORN, J., concurs.