Brown v. . BrownBrown v. . Brown
This is an action for partition in which the defendants plead sole seizin. George W. Brown, during his lifetime, was seized and possessed of certain lands in the county of Yadkin, described in the deeds referred to in the issues. The plaintiffs and the defendants are his children and heirs аt law. The defendants claim the lands hy virtue of the said deeds, and the plaintiffs aver that thе said deeds were obtained by fraud and undue influence of the defendants, and that the said George W. Brown did not have sufficient mental capacity to make a deed. Thеre are a number -of exceptions taken by the plaintiffs on the *651 trial wbicb it is unnecessary to comment upon in view of tbe fact that there is to be another trial.
The сourt instructed the jury that “There is no evidence that the execution of the deeds in question by George "W. Brown was procured by the fraud or the exercise of undue influencе of any of the defendants upon the said George W. Brown, and you are, thereforе, instructed to answer the fifth issue ‘No.’ ”
In this we think there was error, as in our opinion there is some evidence that the defendants, Mark and Henry Brown, procured the execution of the deeds by the exercise of undue influence. This particular influence, while in some eases denominated a fraudulent influence, does not necessarily require thе proof of active fraud. It is really a coercion produced by importunity or by a silent and strong influence, which a strong will will often exercise over a weak onе, and which influence cannot well be resisted. Undue influence is said to be that which destrоys free agency and constrains one whose act is brought in judgment to do what he otherwise would not do if left to himself. 39 Cyc., p. 687.
It is an influence which acts to the injury of the person who is swayed by it. Experience has shown that direct proof of undue or fraudulent influenсe is rarely attainable, but inference from circumstances must determine it. Undue influence is generally proved by a number of facts, each of which standing alone may bе of little weight, but, taken collectively, may satisfy a rational mind of its existence. For а discussion on the subject, see
Everett's Will,
There is evidence in this case tending to prove thаt at the time of the execution of the deeds to the defendants, their father, George "W. Brown, was a very old and infirm man; that he was of a weak and unsound mind; that two of the defendants, Mark and Henry Brown, were living with him and had the entire control and management of his business and property; that he drank a great deal and generally was in a condition not to exercise sound judgment. There is also some evidence of inadequacy of consideration and that the defendants said the land did not cost them much, and also evidence tending to prove that George W. Brown did not know what he was doing when he made thе deeds.
These two sons occupied a very confidential relation towards thеir father, and there cannot be any doubt but that they had opportunity— whether it was taken advantage of or not — to procure from him these deeds for an inadequate consideration.
It is very generally held, when a will or deed is executed through the intervеntion of a person occupying a confidential relation to the maker оf the instrument, whereby such a person becomes a large beneficiary, the circumstances create a strong suspicion that undue influence has been exertеd. Generally, evidence of power over a testator, especially of one of weak mind, or suffering from age and bodily infirmity, though
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not to such extent as to destroy testamentary capacity/ has been held to be sufficient to raise a presumption that ought to be made and overcome before a will is allowed to be еstablished.
Robinson v. Robinson,
203 Pa. St., 403;
Miller v. Miller,
Professor Wigmore says: “Where the grantee or other beneficiary of a deed or will is a person who has maintained intimate relations with the grantor or testator, or has drafted or advised the terms of the instrument, a presumption of undue influence or of fraud on the part of the beneficiary has often been applied.” Wigmore on Evidence, see. 2503.
We think his Honor erred in withdrawing the consideration of the fifth issue from the jury. He should have submitted it upon the evidence for their determination under proper instructions.
New trial.