| Ill. | Mar 31, 1890
delivered the opinion of the Court:
The burden was upon appellees to satisfactorily prove, either, first, that William Burt, at .the time that he executed the deeds in controversy, did not have sufficient mental capacity to execute a deed; or, second, that the execution of the deeds was because of the undue influence of James W. Burt or John H. Burt, or of both, over the mind of William Burt. The court below found the last proposition proved, and therefore decreed that the deeds he set aside. But if either propo-, ' sition was proved, the decree was right. Since, however, we \ are unable to agree with the conclusion reached by the court below, we must necessarily pass upon both propositions.
First—The evidence is too voluminous to attempt to state it at large. Many witnesses testified that, in their opinion, William Burt did not have sufficient mental capacity to execute a deed at the time these deeds were executed, and many witnesses testified that, in their opinion, he did at that time have sufficient mental capacity to execute a deed. It was proved that his memory was not as good as it had been,—that he remembered events that occurred many years ago much more vividly than recent occurrences, and that sometimes, in conversation, he would forget himself, and not be entirely intelligible. These are frequent concomitants of old age, and while they tend to prove an impaired or weakened mind, do not prove disease, and are not irreconcilable with sufficient mental capacity to control and dispose of property by deed or will. It was also proved that he spent a considerable portion of his time with. machinery, endeavoring to produce perpetual motion, under the belief that he could succeed, and thereby obtain a large premium from the government. There is other evidence tending to .show that this was done as an amusement, merely, and' with no firm belief in obtaining success. In any view, however, it only goes to his intelligence. It may be inexcusable ignorance to not know that it has been demonstrated that perpetual motion is impossible; but the fact that very great ■ minds have deemed it necessary to make such demonstrations is conclusive that the impossibility of perpetual motion is not so apparent to the uneducated mind that to believe in it is ■evidence of idiocy or imbecility. Such ignorance has no perceptible tendency to disqualify for the control and disposition of property.
The evidence shows that William Burt was in his eighty-first year when these deeds were executed. A year or so be-, fore their execution he had become blind in one eye, and there was a sore upon the eyelid of the other eye, which kept it so far closed that he was compelled to lift the eyelid up with his hand in order to see with any distinctness. He was hard of hearing, and he was in feeble general health, and it is evident that to these circumstances are attributable many of the unfavorable impressions testified to in regard to his mental condition. We have frequently said that the circumstance that the grantor or testator is of advanced age, very infirm physically, and somewhat enfeebled in mind, is not conclusive of his incapacity to dispose of his property,—that if he has capacity to comprehend and act rationally in the transaction in which he is engaged, it is sufficient. Miller v. Craig, 36 Ill. 109" date_filed="1864-04-15" court="Ill." case_name="Miller v. Craig">36 Ill. 109; Myatt v. Walker et al. 44 id. 485; Lindsey et al. v. Lindsey, SO id. 79; Baldwin v. Dunton, 40 id. 188; Stone v. Wilbern et al. 83 id. 105.
The evidence is ample that William Burt fully comprehended what he was doing, and the effect of his acts, when he executed these deeds. They were drawn by a justice of the peace named Asher. He is apparently disinterested, and he is uncontradi'cted as to what occurred at the time, and he is unimpeached. He testified that he had no deeds or papers from which to obtain the numbers; that William Burt gave him the numbers from memory, correcting witness once in writing them down, when witnesp was making a mistake as to a fractional piece. There is no evidence tending to show that he had forgotten who his children were, or any material matter affecting his relations to them; and Asher testified,that the clause in the deed expressing the undertaking of James W. Burt was written from the dictation of William Burt, alone. There is evidence that William Burt was, after the execution of these deeds, in the habit of loaning money in considerable sums, and that he acted with judgment and caution in doing so. He made no mistakes. He exacted sufficient security, kept his business in his mind accurately, and could compute interest in his head rapidly and correctly. A year after these deeds were executed, he purchased lots in Armington, some improved and others unimproved. He caused some repairs and improvements to be made upon them, and he conducted the negotiations unaided, and with satisfactory prudence and care. He made purchases of his own necessaries at groceries and stores, and it does not appear that in any business transaction in which he was engaged, near the time when these deeds were executed or subsequent thereto, he evinced a want of perception or comprehension adequate to the occasion. When the evidence of these transactions is considered, in connection with the testimony of the witnesses who express the opinion that at the time these deeds were executed he had sufficient mental capacity to make a deed, the preponderance is clearly on that side.
Second—In considering the evidence relating to the question of undue influence, it is to be noted that it clearly appears that William Burt was under no delusion as to the location, quantity and quality of his lands, and of the value of the improvements thereon, and there is no evidence tending to prove that he was, by any act for which James W. is responsible, placed under a delusion -as to their value. There is evidence that when he fixed the amount that James W. was to pay, he fixed it at $10,006, and that James W. then said, in súbstance, that he was charging him more than he could pay. But this plainly had reference to James W.’s ability to raise the money by the time required, and not to the actual value of the lands. The evidence shows that William Burt, and his wife, in her lifetime, had wished that James W. should have this farm, but that he did not intend to give it all to him. He did not want the farm divided, but he wished to tax James with some amount which he could pay, and give him the residue, and he had some difficulty in determining what this amount should be. John H. Burt, the oldest son of William Burt, testified: “The first time my father spoke to me about conveying this farm to my brother James was in 1879. There had been some trouble with some of the estates in the neighborhood, and I remarked to my father, if he had arranged his business as he wished it to be, and he said he had not. We talked about it some little, and he said the only thing that was troubling him was to know how much to tax my brother for it. He said he intended the place for him, but he did not intend to give it all to him,—that was, the home place. I made the remark, why not cut off a piece if he did not give it all to him. He said he did not want to divide it; he intended the farm for my brother, but he did not intend to give it all to him, nor to divide the place.” And so when it came to making the deeds, he first proposed to charge James W. with $10,000, but upon James W. objecting his inability to pay that amount, he fixed the amount at $8500, $6000 of which was to be paid to William Burt in person, and $2500 to his other children,—five in number,—in equal amounts, within twelve months after his death.
The evidence totally fails to prove that John H. Burt influenced William to make these deeds. He expressly denies that he even requested him or advised him to do so. He is not contradicted or impeached, and it is not apparent that he will gain by having James succeed in this suit. There is evi- . -dence that he once spoke to one of the complainants, before the deeds were executed, and inquired whether she would take $1000 for her interest in their father’s homestead; that upon ■another occasion, when it was rumored that William was going to donate $10,000 for some church purpose, he went to one ■of the complainants, requesting her to talk to their father and prevent his making the donation, saying, in effect, that he was incompetent to manage his property; and upon another occasion, that he claimed that one of his brothers-in-law had said that the children of William Burt had agreed that these deeds be executed, which statement was denied by the son-in-law,— .and this is, in substance, all that is urged to his discredit, apart from the fact that William Burt had provided liberally for him many years before.
The witnesses who were present when the deeds were executed not only fail to prove the exercise of undue influence at that time, but they affirmatively prove the reverse. There are, however, some circumstances claimed to discredit their evidence, but they are, in our opinion, inconclusive in their character, and we do not deem it necessary to refer to them in detail.
These facts relied upon by appellees are clearly established: In 1864 William Burt owned the lands conveyed by these deeds, and also stock and farming utensils thereon of the aggregate value of about $6000, all of which he then turned over • to James W., who was only twenty years of age, to manage, and James W. has, since that time, continued to live upon the lands and receive the rents thereof, and he has sold and disposed of the stock and farming utensils in his own discretion and for his own purposes. William has neither exercised nor attempted to exercise control over the farm or stock or farming utensils during that time, but has confined his attention chiefly to the loaning of money—some $10,000—and collecting interest upon it. In 1869 William and James W. erected a large brick house upon the farm, costing about $6000, a considerable part of which was paid out of funds belonging to William. When the house was finished it was occupied by James W. and his family, William and his wife continuing to occupy the old house for a while, and then to occupy a frame addition to the new house, until the death of William’s wife in 1814, and after that William occupied that part himself until November, 1882, when he went to reside with his widowed daughter, Mrs. Bowles, in Armington. It is also proved that the appellees received from William Burt but a comparatively small amount of property. James W. was the youngest child, and when he took charge of the farm and property, the other children had all left home. He was then unmarried, and so remained for a few years, during which time he resided with his father and mother. They were evidently much attached to him, and, beyond question, far more munificent in their gifts to him than they had been to their other children, and especially to the complainants.
There is seemingly, in the common mind, an apprehension that there is a natural equity in favor of the equal distribution of the property of the parent among all his children, and jurors are quite prone to act upon this hypothesis whenever one child, without any apparent satisfactory reason, has been given more of the parent’s property than the other children. But no rule of law requires the parent to distribute his property among his children equally, or upon any ratable basis of relative merit. He may prefer one and cut off another, with or without a reason, or he may cut off all his children and give his property to a stranger, and the only inquiry admissible is, was he, when doing so, of sound mind and free of the undue influence of others. Undue influence means wrongful influence. But influence secured through affection is not wrongful, and therefore, although a deed be made to a child at his solicitation, and because of partiality induced by affection for him, it will not be undue influence. (Dickie v. Carter, 42 Ill. 376" date_filed="1866-11-15" court="Ill." case_name="Dickie v. Carter">42 Ill. 376; Yoe v. McCord, 74 id. 44; Brownfield et al. v. Brownfield, 43 id. 153; Meeker et al. v. Meeker, 75 id. 269.) The influence, to render the conveyance inoperative, must be of such a nature as to deprive the grantor of his free agency. 1 Bedfield on Wills, 522; Roe et al. v. Taylor, 45 Ill. 491.
We are not unmindful that the rule is, where the natural position of parent and child is changed, and the parent becomes subject to the dominion of the child, any gift from the parent . to the child will be viewed with great suspicion, and set aside unless the most satisfactory evidence is produced that it was unaffected by undue influence; and we are also mindful that if the evidence once shows the existence of such dominion, it will be presumed to continue, and the burden will be upon the child receiving a gift afterwards from the parent, to show its removal. But ordinarily the “parent does not yield obedience to the child further than duty or affection prompts; and it is in accordance with the promptings of nature that parents should make gifts to their children.” (Bigelow on Fraud, 264.) In our opinion, the evidence in this record fails to show that child-like dependence, which marks the absence of capacity for self-control in the parent, by William Burt upon James W. Burt. William Burt, as has been before stated, retained in his owm hands a large sum of money, which he loaned and managed at his own pleasure. He was at no time dependent for pecuniary favors upon James W. Burt. He was permit- ' ted to go where he pleased, and he seems always to have been abundantly supplied with means, under his own control, to more than gratify his every want. There is no evidence that James W. was in the habit of rendering him peculiar attentions, which made him feel that their continuance was indispensable to his happiness or his comfort. It is shown that he left a personal estate, apart from any interest in these lands, amounting to $16,000; and beyond the gifts that it is claimed that he made to James W., there is no evidence that James W. controlled or managed his property to any marked extent.
A large number of witnesses testify to declarations made by William Burt subsequent to the execution of the deeds, tending to show that he had not acted voluntarily; but evidence of this kind is not allowed to defeat a deed. (Dickie v. Carter, supra; Higgins v. White et al. supra.) And besides, there is evidence of other declarations showing that he has since repeatedly expressed himself as satisfied with the deeds. The fact that James W. threatened to leave the farm and go West unless William should execute the deeds, is proved; but we think ■ the evidence shows that that was not the real cause of William’s executing the deeds, but that he had, long before that, resolved that he would execute the deeds.
A circumstance of importance, if not conclusive of itself, is this: The deeds were executed on the 9th of July, 1881. The •deed for the land in Tazewell county contains the following, immediately after the description of the lands: “And it is further stipulated by me, the said William Burt, that I reserve the north rooms now occupied by me, for my natural lifetime; and it is further agreed, that my son, James William Burt, shall furnish me, the said William Burt, with board and fuel; and it is further agreed, that James William Burt shall, after my death, pay to my children $2500, said $2500 to be divided into five equal shares, and that each child shall have $500, to be paid within twelve months after my death, and in case ■one or more of my children should die, their share shall go to the heirs of said deceased.”
In November, 1882, as we have before observed, William purchased property in Armington, and went with his daughter, Mrs. Bowles, and resided upon it, and on the 17th of November, 1882, he made his last will and testament, in the words following:
“I, William Burt, Sen., of the Township of Hittle,- in the ■county of Tazewell, and state of Illinois, of the age of 81 years, and should it pleas God to so order that I should live to the tenth day of December, 1882, I will be 82 years oald, and being of sound mind and memory, do make, publish and declare, this my last will and testament in the manner following, that is to say, that in addition to the five hundred dollars, each to the following children, that I have made arrangements with my son, James W. Burt, that he shall pay to each of the fol? lowing named children, Elizabeth Quisenberry, five hundred ■dollars; to my daughter, Sallie Britt, five hundred dollars; to my daughter, Polly Quisenberry, five hundred; to my son, ■ John H. Burt, five hundred dollars; and to my daughter, Louisa Bowles five hundred dollars; that the said James W. Burt is to pay to each of the above named heirs the above named within one year after my deceas or to there heirs attor.neeys or attovneeys:
“1st. To my daughter, Elizabeth Quisenberry, one thousand -dollars.
“To my daughter, Sallie Britt, one thousand dollars.
"3rd. To my daughter, Polly Quisenberry, one thousand dollars.
“4th. And last, to my daughter, Louisa Bowls, the following, situated in the Village of Armington, and known as Dr. '■Lowries hous and lots, described as follows: Lots Three (3), .Pour (4), Five (5), and Six (6), in Block Two (2), of the Boggs ' part of the Verry Griffin and Boggs edition to the Village of ‘ Armington.”
There is no evidence that William had any other arrangement with James W. to pay the children named $500 each, ■ within one year after his death, than that evidenced by the ■ deed supra, and the reasonable inference therefore is, that the reference is to that arrangement. This is, then, a direct recognition and re-affirmance of that deed. The provisions of the will are predicated upon the provisions of the deed, and for the manifest purpose of equalizing, to the extent of the bequests, the property given to the testator’s children. This will was duly proven and admitted to probate. It is not clear, ; from the evidence, that when the will was written the testator ' had gone to live with Mrs. Bowles; but whether this is so or not, he kept it within his control, and could have canceled it at any time subsequent to his removal, had he so desired. As has been before seen, the evidence shows that he transacted ■ business after his removal to Armington, freely and carefully, and there is no pretense that, while there, he was under the domination of James W., and so, had the will not been his free and voluntary will, the reasonable presumption is that he would have cancelled it before his death, which did not occur until the 21st of July, 1883. Moreover, all the parties, tacitly, at least, concede that this will was valid. No one resisted its probate or has since attacked it by bill in chancery; and John W. Burt, the administrator with the will annexed, testified that he had paid to the complainants the legacies given them by this will. Manifestly, a deed made under undue influence is not absolutely void—it is only voidable. And hence the party entitled to avoid it may elect to ratify it, if he will, when the influence under which it was obtained has entirely ceased.
; So here, William might have disavowed this deed while living with Mrs. Bowles, and free of the influence of James W., if he !had so desired; but instead of that he elected to let the deeds stand, and by his will, at all times under his control, he chose to thus ratify them.
The allegations of the bill, in our opinion, are not satisfactorily proved by the evidence in the record. " The decree of the court below is therefore reversed, and the cause is remanded to the circuit court, with directions to that court to dismiss the bill and render a decree for appellants on the cross-bill.
Decree reversed.