The Hocking sentinel. [volume] (Logan, Ohio) 1871-1906, 1889-01-17

II is claimed that if Jesse Spen
Ger, at the the time OF this ALLEGED
e assignment, was not wholly sso'
l coMt;s ,uezi;s, that his mind wa
v so far weakened aud impaired b.
a old age AID disease, as to max
, HIM susceptible and an easy sub
e ject of fraud, imposition AM
: undue influence. That such undu
r influence and fraud was practic
: ed upon hlm. and that the act il
: question was the result thereof.
We have already seen tha
5 mere weakness of mind is no
, sufficient 10 avoid the act of al
, otherwise sane man, but whel
= advantage is taken of such weak
ness, when fraud or undue inlln
, ence is resorted 10 in bringin,
. about the act in question, relic
will be granted. Gases af alleg
ed imposition and undue iniiu
ence prscticed upon old and en-.
teebled men come frequently be
fore the courts for investigation
and while the facts and circum.
stances differ in different cases
the general features are alway,
the same, and the result IS Of {
finding of such fraud, imposition
or undue influence.
Whethelher il is a contract en-.
tered into, deed or will pro-
cured TO be executed, or a giGl
obtained by such means. it is sci
aside as far as the parties 10 the
transaction are concerned, as well
as to all parties subsequently, be
coming connected with it or leas-
ing rights upon it by way of pur-
chase, ETC., providing such third
parties had knowledge Of such
fraud, imposition, or undue influ.
ence, or OF facts connected there
with, that the law would deem
equivalent 10 such knowledge.
So in this case. If the petition
shall be found to be true in that
respect, that this assignment was
procured of their father bv these
two sons, either by any
fraud or imposition practiced up
on his weakness or by means OF
any undue influence exerted over
him, then the assignment as to Sam.
uel and Marion IS not good, and
their father would have had the
right TO recover the money back
from them had he lived, and his
executor has that right now, he
having died. Furthermore, If the
Peoples Bank where such money
was ON deposit, had knowledge
or what the law deems equiva-
lent 10 such knowledge Of
The fact of such fraud or undue
influence before taking up this
certificate, the executors may
recover of it. For in such case
that bank would make itself
party to the wrongful act by
adoption, and no matter how
much it may have paid to others
would be compelled 10 pay to The
executors, and in such case would
have no defense 10 its certificate
in the lands Of The FIRST Bank nor
against the executor for the
money represented by Jesse
Spencer's orig;na! certificate of
deposit thus unlawfully taken
up.
These are the several issues
presented in the record, and |
have endeavored 10 scan the tes-
,imony carefully as il serves to |
illustrate them. The enquiry |
into the mental condition of a
man necessarily rests upon indl
rect or circumstantial evidence.
The extent to which witnesses
may speak 10 the direct question
is to give their opinion merely,
which is exceptional, the general
rule being in ali cases that wit
nesses may speak of facts only.
A distinction is made between
professional ana nonproiessional
men in this respect. A witness
whose business and profession
Is a medical man, whose expert
,nce equips hm with peculiar
md superior knowledge of men.
al as well as other diseases, mag
y've his opinion touching a mans
mental condition upon an exam
nation or knowledge of the man
himself or even upon hypothetI-
al questions pnt 10 him, assum-
ng such questions to be true.
The nonprofessionai witness. /,
Ipon the other hand, must give
long with his opinion the facts +;
within his knowIedge-such con-
uct as he may have observed,
ctions or conversations upon
,ilich such opinion is based. So
hat the court or tribunal trying ,
he fact may judge of the weight !
D be given TO such opinion from !
he facts upon which it is based.
| mass of testimony has been =
lken upon this question occupy Y