delivered the opinion of the Court:
1. The appellants have abandoned in this court their contention against Sarah E. R. Queen and against Easterday and Worthington, the trustees in the deed made to secure the indebtedness due to her. There is absolutely no ease whatever made out against her right; and, as to her and her two trustees, beyond all question the bill was properly dismissed. The appellants are without the shadow of right to disturb her security.
2. As between the appellants and the other appellees, there is no question of law involved. The parties are agreed upon the law. In their brief the appellants say as follows: The only controverted question of law involved in the case is based upon the alternative prayer in the bill, which asks that, if the court should find that the deed of trust cannot be set aside, it shall be
While we think that this contention as to the law applicable-to this case is not sound, even in the contingency that Mrs. Campbell was not competent to execute the deed of trust at the time at which she did execute it, since the money was borrowed,, at least in part, for her benefit and for the release of her property from the lien of assessment, yet, even if it were admitted to be a correct exposition of the law, we regard it as of no consequence in this case. For we are of opinion that it is not shown by the testimony that at the time of the execution of these deeds Mrs. Campbell was without the mental capacity required for their due execution.
The question is merely one of fact; and, concurring, as we fully do, in the conclusion deduced from the testimony by the learned justice who heard the cause in the court below, we do not see that any good purpose whatever would be subserved by any new analysis of that testimony by us. We will content ourselves with quoting and adopting as our own two paragraphs from the opinion of that justice to be found in the record, wherein he admirably sums up his conclusion. He says: “But I am not satisfied of her [Mrs. Campbell’s] mental incapacity to execute either the deed of trust or the subsequent deed in fee. It is true a larger number of witnesses have testified generally to her defective memory during tire period covering these instruments than have testified that she rvas mentally sound. But in my mind this mass of general testimony, not showing, as frankly admitted by counsel for plaintiffs, actual insanity, is not conclusive as to her incapacity to execute valid deeds at the identical times when unimpeached witnesses who were personally present say she did execute such deeds knowingly and with a complete
“It is contended, however, that, although not insane, Mrs. Campbell was in such an infirm mental condition as to be dependent upon her husband, and subject to his superior will. This would appeal to me so far as the transaction of February 21 is concerned, were the circumstances surrounding it inequitable, or did they show any undue advantage taken of her by her husband. But I am not so impressed. Here were two old, infirm, childless persons, on the verge of the grave, attempting to arrange their meager property so that each should have support and maintenance during the short remaining space of their allotted days. By the testimony, the property had been bought by the husband and the titles placed in the wife. She makes a deed conveying all to him and he makes a will giving her, through a trustee, the absolute right to use it all for her support and maintenance during her life. I cannot see in this transaction any undue advantage taken of her.”
We do not think that we need add anything to this. We think that it states the case fully and accurately.
The decree appealed from must be affirmed with costs. And it is so ordered. Affirmed.