| Iowa | Jan 22, 1897
Thomas Brady was the owner of one hundred and sixty acres of land in Johnson county, valued at about the sum of six thousand dollars. He, with his family, had resided thereon, at the time of his death, more than forty years. His wife- died in the year 1874, and his three children, who are the parties to this litigation, remained with him until the marriage of plaintiff, in the year 1881. After the plaintiff’s marriage, she left the old homestead, and took up her residence with her husband. The defendants continued to live with their father upon the premises in controversy until his death, which occurred in July of the year 1894. On the fifteenth day of July, 1898, he executed the deed which is sought to be avoided in this case, and at his suggestion the deed was recorded on the same day. Brady was eighty-three years old at the time he died. He had seen service in the Mexican war, was a man of good habits, and for a man of his age was physically strong when he died.
The first question to which we will give attention is that relating to the alleged unsoundness of mind of the grantor. It is practically undisputed that the deceased was a well preserved man, physically, for one of his age, and it is conclusively shown that he was a man of strong convictions and of great firmness of character. He lived, it is true, beyond the period usually allotted to man, and was somewhat childish during the latter years of his life, and, it may be, was suffering from senile dementia at the time he died. But a careful examination of the evidence leads us to the conclusion that at the time he made the deed in question he had sufficient mental capacity to comprehend the nature and quality of his act, and to proceed with judgment and discretion in disposing of his property. It would be a useless task to set forth all, or even a considerable part of the evidence from which we reach our conclusions. It is sufficient to say that we think the plaintiff has failed on this issue, and that the great preponderance of the evidence is in appellees’favor. Appellant .relies quite largely upon the opinions of experts, based upon hypothetical questions propounded to them. These questions embodied all the peculiarities and idiosyncrasies of the man, covering a long period of time, and when so propounded as to indicate that these characteristics and singularities were related in point of time, and were connected, they were misleading and not a true test
II. Appellant further claims that, if it be conceded that the conveyance cannot be avoided because of unsoundness of mind, it should nevertheless be set aside because of fraud and undue influence on the part of the grantees. As preliminary to this contention, they insist that undue influence will be inferred from the nature of the transaction alone, where, as in this case, the instrument was executed between persons standing in such confidential relations as parent and child, and, that the burden is upon the grantees to show that the conveyance was freely and deliberately made. It is doubtless true that, under the facts disclosed, the rule contended for should obtain; and we look then to see whether the defendants have met the burden imposed upon them. When Brady concluded to make the deed, he went to the office of an attorney at Iowa City, stated what he wished to do, and asked the attorney to prepare the deed. When inquired of as to his object, he stated that he wished to give the defendants his property, and did not desire to make a will, but wanted them to have a home after he was gone. To a suggestion from the attorney that a condition for future support might properly be included, he said that he thought he knew what he was doing, and that he did not want that in the deed. He said he could trust his children without any such provision. After the instrument was prepared, a notary was called, and the grantor’s acknowledment taken. After the deed was signed and acknowledged, Brady delivered the deed to his daughter Bose, and requested