Appellants, who are children or grand-children of P. B. Berry, deceased, filed a bill of complaint against A. B. Berry and wife, to set aside a deed executed by Luther Berry, deceased, to respondents. Both A. B. Berry and Luther Berry were sons of P. B. Berry, deceased. The bill also sought a sale of the land for division.
The bill charged that the deed was void because Luther Berry was not mentally competent to make the conveyance. After a final hearing, the trial court denied relief and dismissed the bill.
P. B. Berry had, during his lifetime, deeded the 20 acre "homeplace" to his youngest son, Luther Berry. P. B. Berry died in 1951, his wife in 1952. Luther Berry had been admitted to Bryce Hospital on September 29, 1945, furloughed November 30, 1945, readmitted December 2, 1950, furloughed July 6, 1951, and discharged for record purposes six months later on January 6, 1952. On this second admission "he was diagnosed as a dementia praecox, catatonic type. It is now called schizophrenic reaction, catatonic type."
The deed in question was executed on March 3, 1953. The homeplace was conveyed to A. B. Berry and wife in exchange for a deed to 40 acres of land owned by A. B. Berry in Marshall County.
The trial court's written opinion and decree states, in part:
After discussing the evidence, the opinion continues:
All the assignments of error, except No. 3, charge in effect that the court erred in holding that Luther Berry was a person of sound mind when he executed the deed in question.
There was ample evidence to sustain the decree of the court. There was evidence that after his return from Bryce Hospital in 1951, Luther Berry farmed, bought and traded tractors, borrowed money at the bank, worked in the State of Michigan four months, sold timber, and executed deeds to a sister and two brothers who are among the complainants in the instant case.
The only medical testimony was that of Dr. Albert B. Stephens, Jr., assistant psychiatrist at Bryce Hospital, who last saw Luther Berry on April 9, 1951. He testified on direct examination that "These individuals may show periods of bizarre behavior and then have periods in which they are fairly rational between. I would say that most probably we would have to consider that he was not competent, but I could not, without having examined him at that time, make a definite statement and say that he was either competent or incompetent."
Assignment of error 3 charges that the court "erred in excluding the testimony of Dr. A. B. Stephens, Jr. as to the sanity of Luther Berry." This assignment is without merit because the opinion of the trial court shows on its face that the doctor's testimony was not excluded, and the decree
The decree of the trial court is due to be, and is, affirmed.
LAWSON, SIMPSON and STAKELY, JJ., concur.