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son. Subsequently the bill was amended so as to make some of the other heirs also complainants. The bill alleged Thom Hillison died intestate October 29, 1917, leaving Carrie McAyeal, his sister, John Hillison and Mons Hillison, his brothers, and six children of a deceased sister, as his only heirs-at-law. The bill alleged deceased was the owner in fee simple of 160 acres of land in Champaign county; that what purported to be a deed conveying to John Hillison 80 acres of said land was made October 15, 1917, but that at the time it was executed Thom Hillison was sick in a hospital and so mentally weak and deranged in mind as to be wholly incapable of transacting any business or understanding the nature and effect of his act. The bill prayed that the deed be set aside and the land partitioned. John Hillison answered, denying that deceased was mentally incapable of making the deed and understanding the nature and effect of it. The cause was referred to the master in chancery, who heard the testimony and reported recommending a decree as prayed. Exceptions to the report were overruled by the chancellor and a decree entered setting aside the deed and for partition of the entire 160 acres, from which decree John Hillison has prosecuted this appeal.
Thom Hillison was about seventy years old. He came to this country from Norway many years ago and first lived in Ford county, about three miles from the village of Elliott, a Norwegian settlement. He was never married. For a time his father, brothers and sisters lived with him. About 1890 he bought a farm of 160 acres in Champaign county, six miles from Elliott, and moved there. Neither of his sisters lived there with him, but his two brothers John and Hill lived with him and helped with the farm work until Hill's death, about 1910, and John continued to live there until Thom's death. It is undisputed that John, from the time he was old enough, worked on the farm all the time and received nothing for his labor except board and clothes "and a few dollars now and then.” Thom was
headstrong, of taciturn disposition, talked very little and seldom volunteered conversation except about necessary business. He would talk more freely in Norwegian than in English. He drank some and would talk more when drinking than at other times. He would use profane language at times without regard to where he was or the presence of ladies. The sisters had married and neither of them lived with Thom for more than twenty years. The father died many years ago, and the brother Mons has been in an insane ayslum for many years. Hill was accidentally killed some years before the death of Thom. There is no controversy that prior to his illness in 1917 Thom was a strong character, mentally sound and capable. He had not been seriously sick prior to his last illness. Three or four months before he died he called a physician, Dr. Donovan. The doctor testified he was suffering from an asthmatic condition, and after treating him three or four weeks the doctor took him to Mudlavia Springs, Indiana. He remained there about three weeks and then returned home, and the doctor treated him there a few weeks. His condition became worse, and October 7, 1917, the doctor, a neighbor, Dwight Day, and Julia Halverson, then and for several years previous the housekeeper at the Hillison farm, took Thom in an automobile to a hospital in Bloomington and left him there for care and treatment. He was suffering from what is commonly called bladder disease and what appeared to be dropsical blood poison near his feet and ankles. Dr. Chapin, a member of the staff at Brokaw Hospital, in Bloomington, where Thom was taken, testified that when he was brought to the hospital an examination disclosed he had degenerative disease of the blood vessels, known as arterial sclerosis, and as a result of that, interstitial nephritis and a condition of the heart known as myocarditis,—heart degeneration. He was uræmic and dropsical, the skin of his legs was sore and he developed gangrene of the legs and feet to some extent. His uræmic condition
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inclined him to be stupid and at times it was difficult to get him to comprehend. On October 15, 1917, W. A. Cameron, Dwight Day and Julia Halverson visited Thom at the hospital, and while they were there the deed to John Hillison for the west half of the quarter section constituting the Hillison farm was executed. It was witnessed by Julia Halverson and Day and was acknowledged by Cameron, a notary public.
The question for determination is whether the proof sustained the allegations of the bill that Thom Hillison was so mentally weak and deranged as to be wholly incapable of transacting any business or knowing and understanding what he was doing. While age and disease may and do impair the mind and are proper elements to be considered on the question of mental capacity to transact business, the mere circumstance that the mental powers have been impaired by age or disease is not, alone, sufficient to invalidate a deed if the grantor fully comprehended its meaning and effect and was able to exercise his will in executing it. The mental impairment that will render a deed invalid must be to the extent that the party making it was incapable of comprehending what he was doing and knowing the nature and effect of his act. Whether the deed here assailed is valid or not must be determined from the testimony of the witnesses testifying for the respective parties.
Thom Hillison at the time of his death had been in the hospital where he died since October 7, 1917. Dr. Chapin had been from 1893 to 1897 a physician in the State Hospital for the Insane at Jacksonville and a member of the hospital staff of Brokaw Hospital sixteen years. It is a hundred-bed hospital.' Thom made outcries indicating he suffered pain. He was noisy and disturbed other patients, so that he had to be removed to the ground floor. The doctor prescribed for him and gave him more or less morphine and some heroin. He testified that from his observation of the patient, in his opinion he was not mentally capable October 15, 1917, to transact business of importance,—any business that would require a material amount of judgment,—and that was his condition all of the time the doctor saw him at the hospital. In the doctor's opinion Thom was not mentally capable on October 15, 1917, to appreciate the importance of executing a deed to 80 acres of land worth $16,000 or more. He was not capable of transacting the simplest business understandingly at any time the doctor saw him. He was not in a stupor but was stupid, and that condition gradually increased. At times he appeared to intelligently realize what was said to him and to answer questions. He could carry on a conversation when limited to direct questions and answers, but it is doubtful whether he knew the objects of his bounty if he wished to dispose of his property. The doctor never tried to carry on a conversation with the patient further than to inquire about his ailments. The doctor never talked with him about what property he had or who were the members of his family and was never present when his brother John visited him. He never made any effort to find out whether he understood his business affairs, had no knowledge of his habits or characteristics, but most of the talk was about his ailments.
Ruth Carson was employed as a nurse in Brokaw Hospital and took care of Thom Hillison from October 8 to 11. She testified that part of the time he was restless but slept under the influence of opiates. When he was awake witness tried to converse with him but he would not always talk. Sometimes he answered questions and sometimes he did not. Witness never tried to talk to him about anything but his condition. Sometimes he answered questions satisfactorily and sometimes he did not. Witness did not think his mental condition such that "he could take care of any business.” He was not rational most of the time. Witness never saw him until he became her patient and knew nothing about him. He was quiet when not complaining of
pain. Witness could not understand him when he talked Norwegian. Sometimes he talked rather rough. He never said anything about his family or his property. The question whether he was able to attend to business never entered witness' mind. He was anxious to know whether the doctor thought he would recover. He would not notify witness when he was going to have a movement of the bowels or kidneys.
Matilda Strohmeier, a nurse in Brokaw Hospital, had constant charge of Hillison from October 11,-seven days. She testified he was in a semi-conscious condition most of the time. He would groan and moan a good deal. Witness gave him heroin, morphine and atropin to relieve pain and cause sleep. He told witness he was not married and that he lived at Elliott with his brother. He was not inclined to talk. Dr. Donovan and another man called at the hospital to see Hillison on October 14 and stayed thirty or forty minutes. Witness left the room while they were there. Cameron, the housekeeper and a farmer visited him October 15 and the following day two men called to see him. The man with Cameron and the housekeeper on October 15 said he was a neighbor and introduced Cameron and the housekeeper to the witness. Cameron asked Hillison if he knew him, and he said, “Mr. Cameron.” Witness thought the housekeeper talked and that the neighbor talked to him about his condition. Witness went out of the room into the corridor. They remained in the room thirty or forty minutes. Cameron asked witness where he could find a pen and ink, and witness showed him the desk where he would find them. She saw Cameron writing at the desk but heard nothing that was said afterwards. After Cameron finished writing he went into the room with a paper and they all remained there ten or fifteen minutes. When they came out they said nothing about having transacted any business. After they left, witness returned to the room where Hillison was and asked him who was there. He said he did