| Ill. | Oct 26, 1909
delivered the opinion of the court:
Henry Hertzberg died in September, 1907, having devised to his wife, Minnie Hertzberg, all his property, including the two-story building in which they resided and on the first floor of which Henry Hertzberg kept a saloon. On December 16, 1907, Mrs. Hertzberg conveyed these premises to her sister, Emma Brunshwiler, reserving a life estate to herself. In February, 1908, she filed a bill to set aside this conveyance. On March 5 a conservator was appointed for her, who was substituted as complainant. After a hearing upon the pleadings and evidence in open court the bill was dismissed for want of equity. The complainant has appealed.
The reasons alleged in the bill for the cancellation of the deed are, that Mrs. Hertzberg did not execute it, and that she was of unsound mind and incapable of executing it at the time it purports to have been executed. It is not, however, now claimed by appellant that she did not execute the deed.
The witnesses who testified for the complainant were, besides Minnie Hertzberg herself, three physicians. Dr. Smith was the physician attending her husband during his last illness and visited her four or five times after her husband’s death, the last visit being September 19. He testified that she worried, fretted and sat up a good deal during her husband’s sickness and completely collapsed when he died, and that then, and for two weeks before, he did not think she was in any condition to transact any business. Dr. Gagnon was on the commission that examined Mrs. Hertzberg at the time the conservator was appointed and examined her by asking her questions. He testified that her mental condition at that time was bordering on feeble-minded, and that in his judgment she was not capable of transacting the ordinary business affairs of life knowingly. Dr. Badger testified that he attended Mrs. Hertzberg from about November 7 to the middle of December; that her mental condition was very poor, and that he did not consider her capable of making a deed during the time he saw her in December.
A. L. Grang-er, a lawyer who prepared a will for her after her husband’s death, in her presence and under her direction, by which she devised all her property to Mrs. Brunshwiler; Joseph I. Granger, also a lawyer, who prepared the deed in controversy and as a notary public took the acknowledgment of it; Louie Beckman, who leased from Mrs. Hertzberg the first floor of the building in controversy; William Sanders, who witnessed the execution óf the will written by A. L. Granger, and B. A. Schugmann, who saw Mrs. Hertzberg once or twice a week for two or three months after Mr. Hertzberg’s death, all testified to the ability of Mrs. Hertzberg to understand business and to facts showing her capacity to transact business and her soundness of mind. The testimony of Dr. Smith and of Dr. Gagnon only had a very remote tendency to show mental incapacity on December 16, 1907. Mrs. Hertzberg was herself before the court and testified, all the evidence was heard in open court, and under such circumstances the finding of the chancellor will not be disturbed unless clearly wrong. We regard the finding here as in accordance with the weight of the evidence, without any regard to the testimony of Mr. and Mrs. Brunshwiler and their son and daughter, all of whom were witnesses on the hearing.
Mrs. Hertzberg was named in her husband’s will as executrix but declined to act, and upon her petition Felix Brunshwiler, the husband of the grantee in the deed, was appointed administrator with the will annexed. Though no such claim is made in the bill, appellant’s counsel has argued at some length that a fiduciary relation existed between Mrs. Hertzberg and the administrator, and that by reason thereof undue influence on his part would be presumed in procuring the conveyance- to his wife. While it is true that as to the administration of the estate of Henry Hertz-berg the relation of Felix Brunshwiler and Mrs. Hertzberg was that of trustee and cestui que trust and was therefore fiduciary in character, that relation did not extend to all the affairs of their lives. Whether any fiduciary relation existed outside the legal relation existing because of the administration was a question of fact to be determined from the evidence. Such relation depends, not upon the technical relation of trustee and cestui que trust, but upon the confidence'reposed on one side and resulting influence and superiority on the other. Relief will always be granted where such confidence has been reposed and betrayed and such influence has been acquired and abused. (Walker v. Shepard, 210 Ill. 100" date_filed="1904-06-23" court="Ill." case_name="Walker v. Shepard">210 Ill. 100; Thomas v. Whitney, 186 id. 225.) The evidence does not make such a case. There is no evidence of any actual influence in procuring the execution of the deed, which seems to have been the result of Mrs. Hertz-berg’s own desire, and there is neither allegation nor proof from which the court would be justified in decreeing a cancellation of the deed because of the existence of any fiduciary relation between the parties.
The decree of the circuit court will be affirmed.
Decree affirmed.