23 N.W.2d 806 | S.D. | 1946
This action was brought to set aside certain deeds of conveyance of real property and for an accounting of the rents and profits therefrom. The plaintiffs and appellants are the children of John F. Samelson, deceased, by his first wife, who died in 1901. The said John F. Samelson married the defendant and respondent in 1902 and they lived together as husband and wife until his death on December 31, 1943. Two of the deeds in question were executed on January 26, 1943, by Samelson and the respondent, husband and wife, grantors, to Hazel Robertson, their daughter, as grantee, and on the same date Hazel Robertson and her husband executed deeds to Samelson and the respondent reconveying the said real estate to them as "joint tenants and not as tenants in common with the right of survivorship." John F. Samelson died on December 30, 1943, and on February 3, 1944, procedings to terminate the life estate of John F. Samelson, deceased, were completed in the circuit court of Minnehaha County, and all his right, title and interest in said property was terminated and the entire ownership and title to the property was vested in the respondent by a judgment and decree of said circuit court.
The appellants contend (1) that the deeds herein mentioned were executed by said John F. Samelson and obtained by the respondent through undue influence arising from the confidential and fiduciary relationship of husband and wife existing between Samelson and the respondent, and (2) that the said John F. Samelson did not have any *295 independent advice from a competent or qualified person, devoted exclusively to his interests, to advise him at the time the deeds were executed. The appllants raised no question of the competency of John F. Samelson at the time the deeds in question were executed.
The trial court made findings of fact in substance as follows: that said John F. Samelson at the time of his death was over seventy-eight years old and for some time during the year prior to his death had been suffering from an illness which had confined him to his bed at intervals; that he was confined to his bed for approximately one month during January, 1943; that on January 25th he sent word through his daughter Hazel Robertson to R.A. Bielski, an attorney of Sioux Falls, South Dakota, with whom he had been acquainted, that he would like to see him; that the attorney called on him that evening and at that time Samelson's mind was clear and alert and he had full control of his mental faculties and was not acting under any duress or intimidation and all his acts and conversation with said attorney were entirely voluntary; that the attorney had previously had no conversation or contact of any kind with the respondent with reference to the business matter which Samelson then and there took up with the attorney; that Samelson advised the attorney that what little property he had he wanted to leave to his wife; that the attorney thereupon advised Samelson to put all his property into a joint tenancy with his wife and explained the meaning and effect of such a transfer; that in the evening of the following day the attorney returned to Samelson's house with the deeds prepared and after an explanation of the transaction by the attorney the deeds were executed and delivered creating such joint tenancy and that at that time said Samelson was in full possession of his mental process, was fully aware of what he was doing and acted entirely of his own volition; that he personally employed the attorney for the purpose of the transaction involved and that the respondent had nothing to do with the employment of said attorney and had had no previous conversations with the attorney regarding the signing of the deeds in question; that the attorney subsequently caused the deeds to be recorded; that Samelson *296 recovered from his illness during the early part of February, 1943, and again went about his work as a carpenter and drove and operated his automobile as usual; that in August, 1943, his physician definitely determined that he was afflicted with cancer of the stomach but that said Samelson was never advised even to the date of his death that he had a cancer of the stomach and that the respondent did not know of that fact until subsequent to August, 1943; that the said Samelson at the time of executing said deeds and at all times until a few hours before his death remained vigorous mentally; that he was at all times a strong minded independent acting man, alert, intelligent and understanding and at all times knew the nature and character of his acts and doings and that his acts in creating said joint tenancy were voluntary and of his own free will and were substantially in accordance with his intentions and desires which had been maintained by him for approximately thirty years as shown by a will which was executed by him some thirty years previously, and by other memoranda in his own hand writing, and that the said Samelson was not persuaded, induced or prevailed upon by the respondent or by the attorney or by any other person in executing the deeds creating such joint tenancy.
These findings are amply sustained by the evidence which leaves the appellants relying solely upon the contention that the confidential relationship of husband and wife between the parties, as a matter of law, rendered the transaction void and that rescession thereof must be granted.
[1] The general rule in such cases appears to be that where the husband conveys property to the wife, the mere relationship of husband and wife does not constitute prima facie evidence of undue influence as to the wife. 26 C.J.S., Deeds, § 193, p. 616.
[2] Here as in all cases of this type, fraud and undue influence must be proved, neither is presumed. However, the fact that such a confidential and fiduciary relationship was present is a matter to be considered and carefully scrutinized by courts of equity. There is no reason to believe that the trial court did not consider and carefully scrutinize *297 any inference which might arise from the relationship existing betwen the decedent and the respondent.
In the case of Taylor v. Taylor,
[3, 4] As said in Bentson v. Ellenstein,
See also Hatt v. Hatt, et al., Iowa, 265 N.W. 640; Harper v. Robinson,
The contention of the appellants that the decedent had no independent, disinterested advice becomes immaterial by reason of the finding that there was no undue influence exercised over the decedent in executing the deeds. Bentson v. Ellenstein, supra; Ashton v. Thompson,
Judgment affirmed.
WOHLHETER, Circuit Judge, sitting for POLLEY, J.