130 Wis. 548 | Wis. | 1907
If either of the findings of the trial .court that Richard Quinn was mentally incompetent to execute the deed, or that his execution thereof was procured by undue influence of the appellant, is sustained, of course the judgment setting aside that deed is correct. We might have difficulty in reaching concurrence with the first of these findings, but, inasmuch as we have concluded that the latter cannot be reversed, we shall find it unnecessary to discuss any other question upon that branch of the case.
In this, as in so many others of this class of cases, there is no direct proof of the exertion of any influence or solicitation by the beneficiary upon the grantor to induce the specific act assailed. Since such transactions are usually secret and confined to the two parties, those attaching the conveyance after the death of the grantor have ordinarily no means of establishing what took place save by the testimony of their antagonist, and, in deference to the frequency of this situation, has been laid down the rule of law that in case of a conveyance by an aged person, susceptible to undue influence, of entire property, without consideration, to one in a position of trust and confidence, under suspicious circumstances which satisfactorily suggest the wrong, accompanied by proof of opportunity and disposition on the part of the beneficiary to exert influence, there arises a presumption that the conveyance was so induced, unless the grantee can negative that fact by direct proof. Substantially all the decisions upon .this subject up to that time were collected, and many of them discussed, in Vance v. Davis, 118 Wis. 548, 95 N. W. 939, which has been succeeded by a careful discussion and elucidation of the rule in Winn v. Itzel, 125 Wis. 19, 103 N. W. 220. The trial court doubtless held the facts sufficiently proved to bring the present case within that rule, and that is the first question for consideration here.
An examination of the record discloses plenty of evidence tending to establish a greatly enfeebled mental condition of
The next question is whether that fact has been negatived by direct evidence. To that end is presented first the testimony of the lawyer who drew the deed, which certainly tends to show that the grantor understood the plan efféctu-ated thereby, and consciously and intentionally gave the directions and assented thereto, but the interview at which this was done was, according to the same testimony, pervaded by the presence and participation of the appellant, and is barren of direct evidence from the mouth either of the attorney or of the appellant himself that the latter did not, even at the interview with the attorney, dominate and direct the father’s will. The only other direct evidence is testimony of the appellant himself to a private interview with his father, at which the
By the Court. — Judgment affirmed.