52 N.C. App. 617 | N.C. Ct. App. | 1981
We hold it was error to dismiss the plaintiffs claim based on undue influence. Undue influence is “the exercise of an improper influence over the mind and will of another to such an extent that his professed act is not that of a free agent, but in reality is the act of the third person who procured the result.” Lee v. Ledbetter, 229 N.C. 330, 332, 49 S.E. 2d 634, 636 (1948). Whether there was undue influence is to be determined by the jury from all the evidence including circumstantial evidence. See In re Will of Franks, 231 N.C. 252, 56 S.E. 2d 668 (1949), reh. denied, 231 N.C. 736, 57 S.E. 2d 315 (1950) and In re Will of Beale, 202 N.C. 618, 163 S.E. 684 (1932). There is evidence in the case sub judice that James Claude Cable wanted his property to be divided between all his children and expressed this desire on several occasions including a time close to the date the deeds were executed; that he was in failing health and weakened mental capacity at the time the deeds were executed; that the defendants exercised substantial control over the life of James Claude Cable in the years preceding his death; and that the consideration for the deeds was inadequate. From this evidence, we believe the jury could conclude that the defendants used undue influence to procure the execution of the deeds.
We hold that it was not error to dismiss the plaintiffs claim based on a breach of a fiduciary relationship. The relationship of a father and son is a family relationship, not a fiduciary one. Davis v. Davis, 236 N.C. 208, 72 S.E. 2d 414 (1952).
We also hold the dismissal of the plaintiffs claim based on lack of consideration was proper. Inadequacy of consideration may be considered by the jury on the issue of undue influence. See Jones v. Saunders, 254 N.C. 644, 119 S.E. 2d 789 (1961). If the jury should find there was no undue influence, the close blood relationship between the parties would be good consideration if the deeds were not deeds of gift, Smith v. Smith, 249 N.C. 669, 107 S.E. 2d 530 (1959).
We have examined the appellant’s other assignments of error concerning the exclusion of certain testimony, and we find no merit in any of them.
