APPEAL from the Circuit Court of Edgar County; the Hon. JOSEPH
R. SPITZ, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 30, 1979.
By order of June 6, 1978, the circuit court of Edgar County set aside a June 24, 1976, deed of Milton D. Pearson (hereinafter "grantor") to defendants Wesley S. Pearson and Norma L. Pearson on the ground that grantor, on that date, was incompetent to execute the deed. The deed was given without consideration and purported to convey grantor's 120-acre farm to grantees, reserving a life estate therein. The suit was initiated during grantor's lifetime by his conservators and upon his death, plaintiff, The Citizens National Bank of Paris, was substituted in their behalf. On appeal, defendants contend: (a) an improper standard was applied to test grantor's mental capacity to execute the deed; (b) the finding of grantor's incompetency to execute the deed was contrary to the manifest weight of the evidence; and (c) an order adjudicating grantor an incompetent and appointing a conservator was improperly admitted into evidence. Defendants further assert that the trial court erred in awarding costs to plaintiff.
Thirteen witnesses testified on plaintiff's behalf, among these being: (a) seven employees of the Shady Rest Nursing Home in Paris, Illinois, where grantor resided from early 1975 until his death, each of whom had daily exposure to grantor on and around June 24, 1976; (b) a medical doctor who had conducted a number of examinations of grantor; (c) grantor's family attorney; and (d) two longtime neighbors of grantor. Repeated corroborating testimony was given that (1) grantor was unable to transact ordinary business and incapable of protecting his own interests in an adversary situation; (2) grantor could not carry a thought process through to conclusion; and (3) grantor could not have understood the nature and effect of a transaction occurring during June and July of 1976. Further testimony indicated that grantor could not have originated the thought of executing a document such as the deed. Seven witnesses stated that, in their opinion, grantor was not of sound mind and memory at the relevant time.
Grantor was otherwise variously described by these witnesses as "confused," "disoriented," "disoriented as to time and place," unable to carry on a normal conversation, "forgetful," unable to remember the day or season, and disoriented as to persons. The evidence was disputed as to whether he could recognize longtime friends and acquaintances.
A registered nurse employed at the nursing home testified that although grantor knew his name, he would often give incorrect responses to questions as to where he was or what time it was. A nurse's aide at the home testified that grantor appeared to understand his mail when it was read to him and also appeared to know his visitors most of the time. A licensed practical nurse at the home stated that often grantor could not remember what day it was or carry on a coherent conversation. Longtime neighbors of grantor testified that he had to be reminded what season it was and that he was at the nursing home rather than at his farm.
The medical doctor testifying on plaintiff's behalf had examined grantor in January, April, and July of 1976. He stated that grantor had an advanced case of cerebral arteriosclerosis and that this condition undoubtedly had an effect upon grantor's mental ability. When asked whether grantor would have been of sound mind on June 24, 1976, he responded "I would have to say sound mind, no." He admitted that grantor's ability to understand a thought process would vary from day to day but stated that his underlying condition would remain the same.
Robert Reel, a longtime friend of grantor, and the attorney who prepared the deed in question, appeared on defendants' behalf, giving testimony relevant to grantor's mental state on the date of the execution of the deed. Reel testified that grantor had initiated the idea of the deed at Christmas time, 1975, and had requested him, Reel, to have an attorney prepare the deed. According to Reel, grantor stated that he did not want the farm to go to those persons so designated in his will but wished the farm to go to defendant grantees who were his only heirs at law. Reel further testified that in June of 1976, grantor told him that it was time to take "care of" the deed and "get my business in order." Reel maintained that grantor never failed to recognize him.
The parties do not dispute that at the time of the execution of the deed, present in addition to grantor were Reel, the attorney obtained to draft the deed, a registered nurse, the nursing home's secretary-bookkeeper, and the attorney's secretary. The testimony as to what transpired then and the opinions of the witnesses present as to grantor's then capacity will be set forth later in our discussion of the weight of the evidence.
1 Greater mental capacity is required to make a deed than is required to execute a will. (McGlaughlin v. Pickerel (1943), 381 Ill. 574, 46 N.E.2d 368.) However, no greater mental capacity is required to make a deed of voluntary settlement reserving a life estate than is required to make a will. (McGlaughlin; Harrington v. Travis (1932), 349 Ill. 606, 182 N.E. 769.) Defendants contend that, in testing grantor's mental capacity, the trial court erroneously applied the standard applicable to one executing a deed.
In its memorandum opinion, the trial court stated:
"Defendants argue that since Pearson retained a life estate the proper test regarding his capacity to make a valid conveyance is the same as the capacity needed for the making of a valid last will and testament. Plaintiff argues that * * * the test should be that declared by our Courts> of review in cases where no life estate was reserved: that is, did the grantor have the capacity to transact ordinary business.
[R]egardless of the arguments of the parties as to which criterion the Court should follow in determining Pearson's mental capacity on June 24, 1976, the Court finds the evidence to be overwhelming that the grantor, Milton D. Pearson, did not have adequate mental capacity to make the deed in question. The credible evidence presented to this Court ...