161 P.2d 117 | Ariz. | 1945
The plaintiff administrator brought this action to cancel two gift deeds executed and delivered by the decedent to her niece, defendant Cecilia Serventi Aguirre, on the grounds of incompetency and undue influence. Defendants denied the *215 allegations of the complaint. The cause was tried with the assistance of a jury. In answer to special interrogatories, the jury found that at the time of the execution and delivery of the deeds the decedent was competent, the instruments were executed and delivered freely and voluntarily, and without undue influence, and the motivating consideration was love and affection which the decedent bore for the grantee. The trial court adopted these findings, and further specially found that the property included in the deeds and in a bill of sale from the decedent to her niece constituted all of the decedent's property owned by her at the time of the delivery of the deeds about January 28, 1943, and that after such date she had no property, exclusive of a small savings account of $42.80, and no earning capacity.
Inasmuch as all issuable facts were found against the plaintiff, it would serve no very useful purpose to recite the evidence, or any part of it. For an understanding of the issues raised, it is essential to state only the ultimate facts as proved and found by the trial court. Decedent, Teresa Amado, was the oldest of a large pioneer Tucson family. Her brother is the administrator of her estate. She was a spinster and a woman of dominating characteristics. Her niece Cecilia resided with her from early childhood, the decedent acting in loco parentis to her niece, the relationship being that of a devoted mother to a loving and affectionate daughter. Following the marriage of her niece to Yjinio Aguirre in 1939, and at the request of the decedent, the niece and her husband came to live with the aunt in 1940. Two children were born to the union of the Aguirres; both were reared in the aunt's home.
In 1941 Miss Amado executed and placed in escrow a deed to her niece Cecilia for part of her property, to be delivered on her death. In the latter part of 1942 she executed and delivered to her niece a bill *216 of sale to all of her furniture. On January 27, 1943, she executed and delivered to her niece a deed for the balance of her property. On the following day she secured from the escrow holder the deed executed in 1941, and delivered it to her niece. Both deeds were for a paid consideration of $10 and for love and affection. The attorney who drew the deeds had represented the defendant Aguirre, husband of the grantee, and his father. The aunt, as far back as 1933, had stated that she intended that her niece Cecilia would have her property, and after the delivery of the deeds told others that she had given all of her property to her niece. At the time of the execution of the first deed she was eighty years of age. She died on the 8th day of May, 1943, at the age of approximately eighty-two years. Although rather feeble and apparently suffering from some malady, she attended church and personally purchased groceries until a few weeks before her death.
The trial court entered judgment for the defendants, and denied motion for new trial, from which this appeal is taken.
On this appeal, plaintiff concedes the competency of the decedent as proved and found by the trial court. His position is that the undisputed facts disclose a confidential relationship between the defendants and the decedent, which raises a presumption of fraud, and casts upon the defendants the burden of proving that the gifts were entirely free of any undue influence on their part, and that defendants wholly failed to sustain such burden.
Plaintiff's assignments and propositions are to the following effect: The donor was an aged person, enfeebled in mind and body; she made an absolute gift of everything she possessed to her niece who occupied a confidential relation towards her; (a) the gift is void under the law, (b) the gift is void since the donor did not have independent, loyal and competent *217 advice, (c) the gift is void because the donee, who has the burden of proof, failed to prove utmost good faith, lack of undue influence and complete fairness, (d) the court failed to charge the jury as to this burden of proof.
[1] In considering plaintiff's propositions, we are confronted at the outset by the fact that both the court and jury found the donor was competent. In other words, that her mind was not so enfeebled that she did not know and appreciate the effects of her acts. We must also assume from the findings the absence of what may be termed active undue influence on the part of the defendants. The evidence which we have reviewed supports these findings and we are bound to consider the facts so found to be true. Stewart v. Schnepf,
Notwithstanding this, plaintiff argues that the undisputed facts and circumstances, and the inferences to be drawn therefrom, based upon the advanced age and physical infirmities of the donor, the fiduciary or confidential relationship existing between her and the defendants, and the fact that she conveyed all of her property to her niece without any reservation for support or otherwise, leaving her penniless, although without the use of any duress, fraud or undue influence on the part of the donee or other person, present a situation which, in the application of equitable principles, requires the vacation of the gift. It is said that old people need protection not only against designing persons but their own improvident acts, and that where the donor, as here, strips herself of everything she possesses, leaving her dependent upon public or private charity, the facts require the interposition of equity to set aside such a transaction. In support of this view, there is cited Slack v.Rees,
[2-7] We are bound to consider this case in the light of the facts and circumstances, and the legal and equitable rules which govern causes of this character. For instance, we may not presume mental weakness or disability from advanced age alone. This court has held that sickness and old age do not, of themselves, amount to incapacity to execute a deed. Pass v. Stephens,
[8-10] It is undoubtedly true that where the donee occupies a confidential relation towards the donor, a gift to the former will be scrutinized with care and when challenged will be held valid on clear and convincing evidence. ". . . utmost good faith, and an absence of all undue influence, advantage, or imposition" must be shown. Starkweather v. Conner,
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[12] From what has been said, and in view of the law generally on the subject, we cannot say that the gift deeds under the circumstances existing in this case are void. The donor knew what she was doing. She was actuated by love and affection. She, not the niece, was the dominating character. She wanted all of her property to be vested in the niece who had been, from the evidence, a daughter to her. She had this right. The New Jersey and English cases cited have been followed to the extent only of requiring that a gift, under the circumstances alleged to be existing here, will not be sustained unless the donor had competent and independent advice. This will be discussed under plaintiff's second proposition.
[13, 14] There are numerous decisions on the question of independent advice necessary to sustain a gift whenever a relationship of trust and confidence exists between the donor and the donee. It must be borne in mind, however, that the rule is applied only where the donee is the dominant person in the relationship. New Jersey and Tennessee hold that the gift will not be sustained whenever there is a relationship of trust and confidence unless the donor had competent and independent advice. This also appears to be the English and Canadian rule. However, in the greater number of the states the rule is that independent advice is not essential to the validity of the gift, although a fiduciary relationship exists between the donor and the donee, but the absence of such advice is a circumstance to be considered in determining whether the gift should be avoided because of undue influence or fraud. Brown v. Canadian Industrial AlcoholCo.,
[15] We think it unnecessary to discuss the third proposition advanced by plaintiff. We have already mentioned the rule that in cases of this character, if the donee is the dominant party in the transaction, the gift is void unless the donee acted in the utmost good faith, and without using any undue influence, advantage or imposition. We cannot say, as a matter of law, from the evidence that the donee in this case was the dominant character. The trial court evidently found otherwise. Both the jury and court found that defendants acted in good faith and used no undue influence or advantage.
[16-18] This brings us to the last proposition made, that the burden of proving good faith and complete fairness was on the defendants, and that the court failed to properly instruct the jury as to this. As we have already stated, this is the rule when a fiduciary relationship exists. However, the burden of proving such fiduciary relationship, or in this case dominance, rests on the party attacking the gift. 38 *222
C.J.S. Gifts, § 65; Klaber v. Unity School, etc.,
[19, 20] Even if the instruction complained of was not correct, the plaintiff cannot complain. The rule established in this jurisdiction follows the great weight of authority to the effect that since the jury's verdict in an equity case is advisory only, error in instructions is not prejudicial. Here the trial judge adopted the answers of the jury and they became the decision of the trial court itself. Wilson v. Coerver,
The judgment is affirmed.
STANFORD, C.J., and LaPRADE, J., concur. *223