
    Widen v. Widen et al. (Two cases.)
    (Decided July 8, 1929.)
    
      Mr. Percy R. Taylor and Messrs. Charles K. $ Stanley M. Friedman, for plaintiff.
    
      Mr. Ralph Emery, for defendants.
   Richards, J.

These two cases were heard together and may be conveniently disposed of in one opinion. In the first case the plaintiff seeks an accounting for certain money in bank, which he turned over to Bessie Widen, his daughter-in-law, and in the second case he seeks to set aside a deed for certain real estate in the city of Toledo which he conveyed to his son Charles C. Widen. The common pleas court- rendered a decree for the plaintiff in each case, from which the defendants have appealed.

The evidence shows that Charles Widen was a native of Sweden who emigrated to the United States more than 40 years ago. He left a wife in Sweden, with whom he had had some domestic trouble, and also left a son and daughter. The son afterwards came to the United States and resides at Canton in this state.

Charles Widen was a steady, industrious man, employed by the Toledo Machine & Tool Company for nearly 40 years, until, in the course of time, he retired by reason of infirmities, and on retiring was granted a pension of $15 a week by his former employer. During his long term of employment in Toledo he accumulated about $2,800, which he had in bank, and had purchased and paid for a duplex, and a house adjoining, all of the value perhaps of $25,000 to $30,000. Some time after coming to the United States, he and a woman began living together as husband and wife, and so continued harmoniously until her death on September 4, 1927. One child was born to them, a son, the defendant Charles C. Widen, who, on reaching manhood, intermarried with the defendant Bessie Widen. In the summer of 1927, when plaintiff’s American wife became seriously ill, their son Charles C. Widen and his wife Bessie Widen came to live with them in order to help care for her. Very shortly after her death they besought the plaintiff to convey to the son the real estate mentioned, and he did execute to the son a deed for the same on September 12, 1927; the recited consideration being love and affection and the agreement that the son would care for the father during his life. At about the same time he caused the money which he possessed to be placed in a branch of the Commercial Savings Bank & Trust Company in the name of his daughter-in-law, Bessie "Widen, with the agreement that she was to pay bills which might be incurred by him while in the hospital. At the time of these transfers he was about 71 years of age, was suffering pain, and was feeble in mind and body.

Shortly after the transfers were made, it became necessary to remove him to a hospital in the city of Toledo, where he remained as a patient for more than 17 weeks, during which time he suffered three severe, major, surgical operations. During his convalescence at the hospital his physicians prescribed a liquid diet, and soft foods and fruits, and the same diet was prescribed for him after he was removed to the upper duplex apartment in the building which he had owned and conveyed to his son, and where they resided. He remained in an enfeebled condition for a long period of time. Almost immediately after his return from the hospital, the defendant Bessie Widen exhibited unfriendliness and animosity toward him and subjected him to spiteful treatment. The treatment of the father by the son was not so objectionable, but he did openly aid and abet his wife in her ill treatment. She taunted him with living on charity, called him a sneak, and an adulterer. With slight exceptions they failed to provide him with the kind of food that he should have, and at no time after the conveyance did they purchase for him any clothing. While he was in the hospital they mortgaged the real estate for $3,500, and they have failed to keep up the payments on this mortgage, have failed to pay the taxes, have failed to pay the amount due the surgeon, although they have received the rents from the premises amounting to some $90 a month and have appropriated his pension of $15 per week coming from the Toledo Machine & Tool Company. They barred his entrance to the parlor by keeping the door locked, and locked him from the kitchen. In the basement of the duplex was a water heater, which was kept burning only when needed, and they locked the door to the basement so he could not get in to heat water for taking a bath or for use in shaving.

The evidence does not show that Bessie Widen ever read the Tragedy of King Lear, but her pitiless ingratitude seems copied after the heartless conduct of the two daughters, G-oneril and Regan, who by false pretensions of love and affection for their father, poor old Lear, obtained his. all and then cast him out into the world cold and naked.

The plaintiff now seeks the recovery of the balance of the money not expended for his benefit which he delivered to Bessie Widen and the cancellation of the deed and return of the property to him. By reason of the conduct of the defendants, the plaintiff has been taking his meals at another place, although he still occupies a room in the apartment conveyed to the son. The evidence leaves no room for doubt of the utter failure to care for him and provide him with a comfortable home and maintenance, and the animosity displayed toward him almost immediately after the transaction unmistakably points to the fact that they contemplated securing his property without complying with the contract to care for him and provide him with maintenance and support during his life. The evidence shows that the contract, made as it was while he was depressed immediately after the death of his wife, and while he was sick, suffering, and enfeebled, was attended with fraud, and that the transfer and conveyance should be set aside.

It is urged in defense that the deed itself contains no forfeiture clause for failure to comply with its terms, and that therefore plaintiff’s only remedy is to recover damages for the breach, and to sustain that contention counsel cite City of Cleveland v. Herron, 102 Ohio St., 218, 131 N. E., 489. We have no doubt of the correctness of that decision as applied to the facts then before the court, but cannot extend the principles to a case of this character. That case did not involve an improvident contract made by an enfeebled man for his care and support, and the contract in that case was made without any undue advantage or suggestion of fraud on the part of any one. As said in Baltimore & Ohio Rd. Co. v. Baillie, 112 Ohio St., 567, 148 N. E., 233, the syllabus must be interpreted in view of the facts found in the case. The case at bar is more like Tracey v. Sacket, 1 Ohio St., 54, 59 Am. Dec., 610, and Reid v. Burns, 13 Ohio St., 49. See also Glocke v. Glocke, 113 Wis., 303, 89 N. W., 118, 57 L. R. A., 458.

We think the plaintiff is entitled to the equitable relief sought, and a decree will be entered in his favor in each case.

Decree for plaintiff.

Williams and Lloyd, JJ., concur.  