
    Gilbert v. Gingles, Administrator.
    (Decided January 13, 1925.)
    Appeal from Calloway Circuit Court.
    1. Contracts — Where Issues were Decedent’s Mental Capacity, Fraud, and Undue Influence, Plaintiff was Untitled to Recover, if at all, According to Terms of Contract. — In an action on written agreement of one deceased to give plaintiff certain property in consideration of services rendered, where issues were decedent’s mental capacity, fraud, and undue influence, plaintiff, if entitled to recover at all, was entitled to recover according to terms of contract.
    
      2. Trial — Where Consideration, of Value was Admitted, it was Improper to Instruct that Jury Must Find that Contract was Based on Reasonable Consideration as Condition Precedent to Recovery. —Where it was admitted that services of value were rendered in consideration of contract sued on, and sole issues were fraud, undue influence, and mental capacity of decedent, it was error to instruct that, to warrant recovery by plaintiff, jury must find that agreement was based on reasonable consideration.
    M. E. GILBERT and COLEMAN & LANCASTER for appellant.
    SPEIGHT & CRAWFORD for appellee.
   Opinion of the Court by

Judge Sampson

Reversing.

On September 2,1922, Mrs. Mary M. Graham, widow, executed the following writing:

“For and in consideration of services rendered to me by Walter Gilbert since- the death of my husband, John Graham, I hereby promise the-said Gilbert my pony and buggy and seventy-five dollars he now owes me and five hundred dollars to be paid out of my estate before any distribution shall be- made under a will heretofore'made by me.
“Mary M. Graham."

After the death of Mrs. Graham her administrator declined to comply with the terms of the instrument, and this suit was commenced by appellant W. P. Gilbert against Gingles as- administrator of Mrs. Graham to enforce it.

The answer admitted the execution of the writing by Mrs. Graham but pleaded- that the instrument was executed by her on the day of her death and that at the time she signed and delivered it she was an invalid and had been such for many weeks theretofore and that she did not have mind enough to know the contents of the- writing or its effect, and that she signed same at a time when she was mentally incapable of making a contract or of knowing her rights thereunder, all of which was well known to appellant Gilbert; and that Gilbert with knowledge of her incapacitated condition and weakness of mind and will, fraudulently persuaded and induced her to sign the writing and to deliver it to him. The answer also contained a counterclaim on the $75.00 note at that time owing by Gilbert to- the estate of Mrs. Graham. When tbe issues were made up a jury trial was had resulting in ■ tbe following verdict:

“We, tbe jury, find for tbe plaintiff one pony and buggy, and tbe cancellation of tbe $75.00- note.”

Tbe issue was as to whether Mrs. Graham at tbe time of tbe making of tbe writing, which is tbe basis of tbe action, bad sufficient mental capacity to enter into such a contract and if she did, whether appellant Gilbert, through fraud, induced her to sign and deliver the contract at a time when she would not have done so except for tbe exertion of undue influence. Appellant 'Gilbert was therefore entitled to a verdict in bis favor for tbe pony and cart, and tbe cancellation of the seventy-five ($75.00) dollar note, and for $500.00, if Mrs. Graham was of sound mind at tbe time of tbe execution of tbe writing, and was not induced to make it through fraud or other improper influence on tbe part of appellant Gilbert or some other person acting for or on bis behalf. '

Tbe instructions given by tbe court to tbe jury were erroneous in several particulars. Tbe first one directed tbe jury to find for Gilbert tbe pony and buggy described in the paper, and also tbe cancellation of tbe $75.00 note, and tbe sum of $500.00, provided tbe jury believed from tbe evidence that Mrs. Graham signed said paper and that “at tbe time she did so she bad mental capacity-sufficient to know tbe contents of said paper and tbe effect of same, and knew and understood what she was doing, provided you believe from tbe evidence that tbe said paper was based upon a reasonable consideration

Tbe court should have directed tbe jury to find for Gilbert tbe pony and buggy, tbe cancellation of tbe $75.00 note, and $500.00, unless it believed from tbe evidence that Mrs. Graham was not of sound mind at tbe time she signed and delivered tbe writing sued on, or was fraudulently induced to execute the paper. There is no controversy in the- evidence but that Gilbert performed certain services for Mrs. Graham'before her death, and for which she was indebted to him at the- time of tbe making of tbe writing. Tbe value of those services is in dispute-They were of value, however. No doubt when she gave him the writing she expected to live longer than that day, for she was going about, and died while out on tbe porch. Appellant Gilbert bad been waiting on her during her sickness and bad sat up with her at night for about two or three weeks next before her death. Had she lingered for many more weeks no donbt appellant Gilbert would have been obliged, according to tbe contract, to look after and wait upon Mrs. Graham. At any rate the jury had no right, after it concluded that Mrs. Graham was of sound mind, as- evidently it did, and further found she was not unduly influenced to execute the writing, to make a new contract for the parties, giving to appellant Gilbert merely the pony and buggy and his $75.00 note, and striking from the writing the agreement to pay $500.00.

Appellant was entitled to recover the whole amount or was not entitled to recover upon the paper at all. Upon another trial the court will reform its instructions to meet these suggestions.

For the reasons indicated the judgment is reversed for new trial.  