essence that he should have been led to do something which would not have been in accordance with his own wishes and desires if left perfectly free, it follows that we must take into account the measure of the susceptibility of his mind to outside influences, or, in other words, the degree of resistance which it is able to offer to the suggestion of a course of action naturally repugnant or undesired. And it is well known that in most cases, though not invariably, this susceptibility is increased, and those powers of resistance are weakened, by the effects upon the mind and will of advanced age, sickness, and the prostration of the physical powers. When these conditions exist, the field is ripe for any one possessing influence over the subject to exercise it. And if a gift or grant is made by a person thus enfeebled by age and infirmity to one shown to possess an influence over him, and especially if the transfer does not appear to be based upon any proper consideration or to be prompted by any adequate motive, a very strong showing of undue influence will have been made.83 Thus, in one case, evidence that a frail old man conveyed all his property, worth many thousand dollars, to his housekeeper, without any consideration, was held sufficient to avoid the deed for undue influence.84 And a similar ruling was made in a case where the grantor in a deed was old, sick with an incurable disease, and so broken in mind and body from the excessive use of stimulants as to be incapable of realizing what he was doing, and in a case where a woman, who sold her property for an insufficient price on the suggestion of the purchaser that she had best convert it into money so as to avoid a threatened litigation, was shown to have been in a condition of great mental distress in consequence of the death of her husband, and so agitated and despondent at and about the time of the transfer that she talked of suicide 85 83 See Haydock v. Haydock, 33 N. J. Eq. 494; Morton v. Davis, 105 Ark. 44, 150 S. W. 117; Casey v. Howard, 105 Ga. 198, 31 S. E. 427; Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087; Holland v. John, 60 N. J. Eq. 435, 46 Atl. 172; Caddell v. Caddell (Tex. Civ. App.) 131 S. W. 432. 84 Aldrich v. Steen, 71 Neb. 33, 98 N. W. 445, 100 N. W. 311. 85 Wolf v. Harris, 57 Or. 276, 106 Pac. 1016, 111 Pac. 54. and received the ministrations of a physician and a priest.86 Particularly does the law regard with grave suspicion a transfer of property made by a person upon his death-bed. There are indeed cases in which the mental faculties remain unclouded, and the will resolute, almost to the very moment of dissolution. But this is not usually the case, and if advantage is taken of a dying grantor, whose physical strength is spent and whose mind is weak, any influence brought to bear upon him, though it be no more than mere solicitation, will be an undue influence and justify the avoidance of the grant.87 But evidence of this kind is not conclusive. Though it be shown that a grantor or donor was aged, feeble, diseased, or even moribund, yet this alone is not ground for undoing his acts, and if it appears that he nevertheless understood clearly what he was doing and was fully informed of the facts which might or should have guided his decision, the transaction should not be set aside without positive proof of undue influence.88 It is said that undue influence in procuring an assignment of property rights cannot be inferred solely from the advanced age of the assignor,89 and in fact, that old age, physical infirmity, and feebleness of intellect on the part of a grantor do not raise any legal presumption of undue influence exerted upon his mind." And a written contract, executed by one in a dangerous illness and in contemplation of death, cannot be rescinded on his recovery if it is not shown that his mind was impaired, or that it was secured by fraud or undue influence.o1 § 248. Temporary or Permanent Mental Weakness of Subject. Contracts and conveyances made by persons who are mentally infirm, with feeble understanding and impaired or subnormal faculties of reasoning and judgment, will 86 Bruguier v. Pepin, 106 Iowa, 432, 76 N. W. 808. 87 Wiltsey v. Wiltsey, 153 Iowa, 455, 133 N. W. 665; Dooley v. Holden, 53 App. Div. 625, 65 N. Y. Supp. 713. 88 Montgomery v. Clark (Tenn. Ch. App.) 46 S. W. 466; Furlong v. Sanford, 87 Va. 506, 12 S. E. 1048. 89 Holmes v. Holmes, 129 Mich. 412, 89 N. W. 47, 95 Am. St. Rep. 444. 90 Teter v. Teter, 59 W. Va. 449, 53 S. E. 779. 91 Wallace v. McVey, 6 Ind. 300. be closely scrutinized by courts of equity to discover whether any fraudulent or sinister influence has been exerted upon them, and such transactions will be set aside if their nature justifies the conclusion that the party has not exercised a deliberate judgment, but that he has been imposed upon or overcome by cunning or undue influence.92 As observed by the Supreme Court of the United States: "It is sufficient to show that [the grantor] from her sickness and infirmities, was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the conveyance. From these circumstances, imposition or undue influence will be inferred. * It may be stated as settled law that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party or his representatives or heirs, interfere and set the conveyance aside." "3 To illustrate the application of this rule, we may first cite a case in which it appeared that the plaintiff was seventyfive years of age, sickly, childish, and eccentric, and generally considered by his neighbors to be insane. Being without ready money or means of support, and having no one to care for him, he conveyed his farm to the defendant in the action. This was done at the defendant's solicitation, and upon his promise to maintain and support the plaintiff during the remainder of his life. But the farm greatly exceeded in value the probable cost of such maintenance for the period of plaintiff's reasonable expectation of life. In addition, there was evidence showing that the plaintiff failed clearly to understand the nature of the transaction, and the E. 381; McDowell v. 92 Elmstedt v. Nicholson, 186 Ill. 580, 58 N. Edwards' Adm'r, 156 Ky. 475, 161 S. W. 534; Mo. App. 356, 134 S. W. 572; Bennett v. Bennett, 65 Neb. 432, 91 N. W. 409, 96 N. W. 994; Meyer v. Fishburn, 65 Neb. 626, 91 N. W. 534; Mott v. Mott, 49 N. J. Eq. 192, 22 Atl. 997; Baugh v. Buckles, 2 Ohio Cir. Ct. R. 498; Zeigler v. Shuler, 87 S. C. 1, 68 S. E. 817; Du Bose v. Kell, 90 S. C. 196, 71 S. E. 371; Crebs v. Jones, 79 Va. 381. 93 Allore v. Jewell, 94 U. S. 506, 24 L. Ed. 260. 70 stance may be sufficient to rebut an inference of undue influence arising out of the other circumstances of the case.7° Thus, where a widow, who was a woman of firm character and good business capacity, and who contemplated remarriage, went with her children to the office of a notary and there executed a deed to them conveying land which the children themselves had helped to pay for, reserving to herself a life estate therein, and it appeared that the notary fully explained the effect of the deed before she signed it, and also that she had consulted a lawyer in reference to the transfer before going to the notary, it was held that the fact that the deed contained no power of revocation would not prevent the settlement from being deemed her free and voluntary act. Even the opportunity to obtain independent advice, with a warning that it will be best to seek it, may be enough to show that there was no fraud or coercion in obtaining a deed. Thus, in a case in Tennessee, it was held that a conveyance by a married woman of her realty to her brother to satisfy a default of her husband, which the brother agreed to assume, made within a day after she learned of such default, should not be set aside as obtained by fraud and undue influence, where she fully understood the transaction, was advised by the brother to consult others in reference to it, and was warned by him that the execution of the conveyance would mean giving up her home." But if the advice in respect to the transaction comes from a source that is not disinterested, or is even hostile to the person to be advised, it is of course not such as the law requires, as, for instance where it is given by counsel for the party to be benefited by the transaction. And in this case it may operate strongly against the validity of the conveyance, instead of in its favor. But in general, where one has the mental capacity to contract, and no fraud 72 70 Vrooman v. Grafflin, 96 Fed. 275, 37 C. C. A. 475; Zeok v. Mercantile Trust Co., 194 Pa. 388, 45 Atl. 215; Chambers v. Brady, 100 Iowa, 622, 69 N. W. 1015. 71 Valter v. Blavka, 195 Ill. 610, 63 N. E. 499. 72 Maney v. Morris (Tenn. Ch. App.) 57 S. W. 442. 73 Hubert v. Traeder, 139 Mich. 69, 102 N. W. 283; James v. Groff, 157 Mo. 402, 57 S. W. 1081. is practised upon him, he cannot plead that he acted under bad advice, as a ground for rescinding his contract.74 § 245. Time of Exerting Influence with Reference to Gift or Grant.-To warrant the avoidance of a gift, grant, or other transaction on the ground of its having been procured by undue influence, such influence must be shown to have existed and been exercised at the time of the execution of the deed or the making of the transaction in question. Thus, a grantor cannot procure the vacation of his deed on the mere ground that he reposed great confidence in the grantee, and that his influence due to former confidential relations still remained, without also showing that the execution of the deed was the result of the exertion of that influence." 76 But the mere fact that the grantee was not in the room while a deed was being executed is not sufficient to show that the influence of a confidential relationship which existed between the grantor and grantee did not subsist and operate upon the mind of the grantor at that moment." But deeds executed by a father to his sons, accomplishing the same result which was achieved by the grantor's executing a will six years before, at a time when no doubt existed as to his freedom of action, will not be set aside for undue influence, notwithstanding the court may have doubts as to the weight of the evidence on the subject of the fairness of the influence exerted by the sons, 78 § 246. Degree or Measure of Influence Required.—The undue influence which will justify the avoidance of a gift, grant, or other transaction must have operated with such power and stress as to place the subject in vinculis, destroy his free agency, dominate his will to make it serve the purpose of another, and so coerce him into doing something 74 Carroll v. People, 13 Ill. App. 206. 75 Sears v. Vaughan, 230 Ill. 572, 82 N. E. 881; Riordan v. Murray, 249 Ill. 517, 94 N. E. 947; Curtis v. Kirkpatrick, 9 Idaho, 629, 75 Pac. 760; Mallow v. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; Kline v. Kline, 14 Ariz. 369, 128 Pac. 805. 76 Banner v. Rosser, 96 Va. 238, 31 S. E. 67. 77 White v. Daly (N. J. Eq.) 58 Atl. 929. 78 Taphorn v. Taphorn, 32 Ohio Cir. Ct. R. 96. |