Sears v. Vaughan
82 N.E. 881
Ill.
1907
Check Treatment

Lead Opinion

Mr. Justice Vickers

delivered the opinion of the court:

In the foregoing statement we have set out what appear to us as the most salient points in the testimony bearing upon the question at issue. The great volume of testimony given on the trial of this cause cannot be set out within the reasonable limits of a statement or discussed in detail in an opinion without unduly extending it. With unusual industry counsel for the respective parties have presented every fact and circumstance which bears directly or remotely upon the questions involved. The range of the testimony extends over a period of a half century, and brings into view a great multitude of statements, acts and circumstances in the life of J. Lafayette Curtis for the purpose of showing whether he had mental capacity on August 27, 1902, sufficient to make a valid deed.

The theory of appellant, both in the pleadings and the evidence, is, that the mind of Curtis was so enfeebled by age that he was incompetent to make a deed. It is not claimed that he was insane or that he was subject to any delusions of any kind, either at the time the deed was executed or at any other' time. Mere impairment of memory, by reason of advanced years, does not, of itself, indicate a want of power to comprehend a ‘transaction and to dispose of property. (Francis v. Wilkinson, 147 Ill. 370; Taylor v. Pegram, 151 id. 106.) In order to justify a court of equity in setting aside a deed or contract on the ground of mental incapacity, it must appear that the grantor did not have sufficient mind and memory to comprehend the nature and character of the transaction in which he was engaged. (Argo v. Coffin, 142 Ill. 368; Graham v. Deuterman, 206 id. 378; Beamer v. Morrison, 210 id. 443.) When the evidence bearing upon the mental capacity of Curtis is considered, it leaves no doubt upon our minds that at the time the deed in question was executed Curtis fully comprehended and understood the transaction in all of its bearings and consequences. The testimony of the attorney who drew the deed is very clear and convincing upon this point. It shows that he fully advised Curtis in relation to the effect of making a deed as well as adding a codicil to his will. Curtis came to the office and explained what he desired to do with the Dearborn street property and asked Mr. Coffeen in what manner he could best accomplish his purpose. His statements were all clear and rational and the questions asked by him were intelligent and pertinent. After a conclusion had been reached as to the instrument to be executed, the deed was prepared by Mr.- Coffeen and read by him to Curtis. Curtis took the deed away with him and returned the next day, saying that he was satisfied with the deed and that he was ready to execute it. The deed was then executed and delivered to the grantee. While Mrs. Vaughan accompanied Curtis on these several visits to the attorney’s office, she was not present and took no part in the interviews between Curtis and Coffeen. There is nothing connected with the execution of this deed, so far as this record shows, sufficient to raise a reasonable doubt as to-the grantor’s mental capacity.

The charge of undue influence is equally untenable. While Mrs. Vaughan was no blood relation to the grantor, yet she occupied in his affections the relation of a daughter. She had been brought into the Curtis home when only two years of age. There were no children born to Curtis and his wife, and it is but natural that they should have bestowed upon their foster-daughter great affection. The fact that Curtis regarded Mrs. Vaughan and her children as the natural objects of his bounty is shown by the circumstance that he supported her and her children out of his means many years before Mrs. Curtis’ death, and by the further fact that in his will, made in 1897, while Mrs. Vaughan was residing in Ohio and when there could be no suspicion of want of capacity or undue influence, a liberal provision was made for Mrs. Vaughan and her children. It is no doubt true that Curtis changed his mind, after the death of his wife, in regard to the amount of property he desired to go to his wife’s relatives. The interests of his wife’s relatives under the will will be largely reduced if the deed in question is upheld, and it is the fact that the deed reduces the interests of certain legatees and increases the interest of Mrs. Vaughan which is relied on as a circumstance tending to show undue influence. The evidence shows that after the death of his wife disagreements sprang up between Mrs. Vaughan and certain relatives of Mrs. Curtis. It is not material to our purpose to discuss these disagreements or seek to determine who was in the right and who in the wrong, but we only refer to it for the purpose of observing that in these quarrels Mr. Curtis seems to have agreed with Mrs. Vaughan. He believed, evidently, that certain relatives of his wife, with undue haste, were seeking to get possession of certain articles of property which had belonged to his deceased wife. Their conduct in this respect may have had an influence on the mind of Curtis, leading him to reconsider his original intention of disposing of his property for their benefit. Mrs. Vaughan, no doubt, was not unwilling that she should be regarded by Curtis with greater favor than the relatives of his wife, but there is not a particle of evidence in this record that Mrs. Vaughan at any time sought to influence Curtis to execute this deed to her. The appellant’s contention on this point is a mere inference sought to be drawn from the manifest change in Curtis’ plans for the distribution of his estate and the fact that Mrs. Vaughan was closely associated with Curtis, thus affording abundant opportunity for her to exercise an influence over him, and that such inference is rendered more probable by the mental condition of Mr. Curtis. The most that can be said of these facts is, that they are consistent with the hypothesis that this deed was the result of actual undue influence of the grantee; but they are also equally consistent with the hypothesis that Curtis, either with or without cause, conceived a dislike for his wife’s relatives after her death, and for this or some other reason changed his mind, after his wife’s death, in regard to the disposition of his property. Again, it is not unreasonable to believe that after Mrs. Vaughan came to make her home with Curtis, bringing with her her four fatherless children, two of whom, as already shown, were wholly incapable of taking care of themselves, the unfortunate condition of the children appealed to the sympathy of Mr. Curtis, and he, acting from motives of affection and duty, determined to increase the provision for Mrs. Vaughan and her children even if it did diminish the provision for his wife’s relatives, who were able to take care of themselves, and whose claims upon his bounty, if any claim can be said to exist, should very properly be regarded as inferior and secondary to the claims of his foster-daughter and her unfortunate children.

While undue influence may be established by circumstantial evidence, yet when, as in the case at bar, all the circumstances relied upon are equally consistent with some other rational theory deducible from the facts proven, it cannot be held that the charge of undue influence is established, especially where the direct evidence bearing upon the transaction sought to be impeached conclusively shows mental capacity and absence of any undue influence operating at the time of the transaction.

This court has often had occasion to define what is and what is not “undue influence.” Among the latest cases on this subject is Dowie v. Sutton, 227 Ill. 183. In that case it was said (p. 197) : “The word ‘undue,’ when used to qualify ‘influence,’ has the legal meaning of ‘wrongful.’ Hence, ‘undue influence’ means a wrongful influence. But influence secured through affection is not wrongful, and when a will is made in favor of a child at his solicitation and because of partiality influenced by affection for him it will not be undue influence.—Dickie v. Carter, 42 Ill. 376; Brownfield v. Brownfield, 43 id. 147; Meeker v. Meeker, 75 id. 260; Burt v. Quisenberry, 132 id. 385.”

Undue influence which will avoid a will or a deed must go to the extent of depriving the party of his free agency; (Francis v. Wilkinson, 147 Ill. 370; Wilcoxon v. Wilcoxon, 165 id. 454;) and such influence must operate at the time of the transaction sought to be impeached. In In re will of Barry, 219 Ill. 391, at page 397, this court said: “It is further contended on the part of the contestants that the will in question is the product of undue influence over the testatrix on the part of William Mumford. Evidence was introduced to show that William Mumford made a trip almost every month from his home in Pittsfield to the home of the testatrix in Mt. Sterling for the purpose.of transacting her business for her, and that he was her confidential and professional adviser as well as her son-in-law. There is no evidence in the record, however, to show that William Mumford had anything whatever to do with the preparation or execution of the will in question. He was present in the library when the will was executed, but took no part therein, either by word or act. After the will was executed the testatrix sent it to the bank, sealed up in an envelope with other papers, and there it remained for about a year and until after her death. There is no evidence to show any effort on the part of William Mumford to influence the tes: tatrix to make a will, or to favor his son, Barry, in the disposition of her property. In cases in which the burden of proof is thrown upon one standing in a confidential relationship to show the absence of fraud or undue influence in the making of a will, such person must be shown to have been directly connected in some manner with the making of the will. The record fails to show that William Mumford was connected in any manner with the execútion of the will. Any suspicion which might be engendered by Mumford’s presence in the library when the will was executed cannot be regarded as proof of any such alleged fact. On the contrary, the declarations of the testatrix are in evidence to the effect that William Mumford did not write the will and that he had nothing to do with it.”

Finally, it is contended by appellant that the circumstances of this case show a fiduciary relation between appellee Mrs. Vaughan and Curtis in which it is assumed that she was the dominant party, and that the case is for that reason one in which Mrs. Vaughan is required to prove, by clear and satisfactory evidence, the utmost good faith on her part and the absence of undue influence. This position can not be maintained. The rule contended for is applicable to cases of attorney and client, guardian and ward and parent and child, where the parent receives a gift or other benefit from the child. But the rule is not applied where the parent makes a will or other provision for his child. In our opinion this case ought to be governed by the same rule in this respect as would apply between father and child. Gifts of this sort are natural, and proceed from that tender solicitude for the welfare of his children that is implanted in the bosom of every parent. To hold that such gifts are presumptively fraudulent would be to reverse the legal basis of all presumptions, and to establish the doctrine that when a parent makes a provision for his child by will or deed it will be presumed to be fraudulent, and cast the burden on the child of proving, by clear and convincing evidence, good faith and the absence of undue influence. Presumptions are inferences which common sense draws from the known course of events or from circumstances usually occurring in such cases. If any presumption exists in this case, naturally and logically it would be in favor of the validity of the deed, since a gift to his foster daughter by Curtis was, under the circumstances, the usual, ordinary and reasonable thing to be expected of him; but we do not hold that there is any presumption in the case one way or the other!

Appellant assumes that if the evidence proves, or tends to prove, that Mrs. Vaughan occupied a position of influence, in fact, over Curtis, the burden of proof shifts from appellant to her, and requires her to prove, by clear and satisfactory proof, the absence of undue influence. In this argument we think that appellant confuses an inference of fact with a presumption of law. There is no presumption of law arising from the relation of these parties which will cast on Mrs. Vaughan the burden, in the first instance, of proving that the execution of this deed was not procured by any undue influence on her part over the grantor. Appellant charges the fact to be that the deed was thus procured. The burden of proof upon that question is on the appellant throughout, and is not shifted to Mrs. Vaughan by proof merely of the relationship between the parties. There is no proof in this record that Mrs. Vaughan exercised or attempted to exercise any influence whatever over Curtis to induce him to execute the deed. If there was such evidence there might be drawn an inference of fact of more or less strength, depending on the quantity and quality of the evidence upon which it rested, and such inference might be strong enough to justify a decree setting aside the conveyance unless it was removed by other proof. Such inference, however, is quite a different matter from a legal presumption based on the bare fact that Mrs. Vaughan was the foster daughter of the grantor. If such presumption could be applied, then appellant would be entitled to a decree by merely proving the existence of the relation and the conveyance made while such relation existed, unless Mrs. Vaughan established, by clear, satisfactory and convincing evidence, that the transaction was fair and free from all suspicion of undue influence. Such is not the law as applied to the facts of this case.

Finding no error in the record the decree of the superior • court of Cook county is affirmed.

Decreg am„ned_





Concurrence Opinion

Scott, Carter and Dunn, JJ.,

specially concurring:

We agree to the conclusion reached by the foregoing opinion, but we think that opinion erroneously gives the impression that the usual presumption which arises where there is a fiduciary relation and the dominant party secures from the dependent party a gift, bequest or devise of property does not obtain unless the confidential relation is an ordinary, technical, fiduciary relation, such as that of guardian and ward, attorney and client, etc.

In Thomas v. Whitney, 186 Ill. 225, the following language was quoted with approval: “Certain transactions are presumed, on grounds of public policy, to be the result of undue influence. Such transactions are generally those occurring between persons in some relation of confidence, one toward another. The presence of such relationship creates a presumption of influence, which can generally be rebutted by proof that the parties dealt as strangers, at arm’s length; that no unfairness was used, and that facts in the knowledge of the one in the position of influence, affecting the rnatter, were communicated to the other.” “Nothing can tend more to produce confusion and inaccuracy in the discussion of the subject (undue influence) than the treatment of actual' undue influence and fiduciary relation as though they constituted one and the same doctrine.” “The term ‘fiduciary’ or ‘confidential relation,’ as used in this connection, is a very broad one. It has been said that it exists and that relief is granted in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. The only question is, does such a relation in fact exist?” This court in that case then continued as follows: “Transactions between a party and one bearing a fiduciary relation to him are upon his motion prima facie voidable upon grounds of public policy, and the burthen of proof, the fiduciary relation being established, is upon the . one receiving the benefit to show an absence of undue influence by establishing the fact that the party acted upon competent and independent advice of another or such other facts as will satisfy the court that the dealing was at arm’s length, or he must show that the transaction was had in the most perfect good faith on his part and was equitable and just between the parties, or, as some of the authorities say, that it was beneficial to the other party.” The law has been so held by this court in many subsequent decisions, among which are the following: Weston v. Teufel, 213 Ill. 291; Leonard v. Burtle, 226 id. 422; Morgan v. Owens, 228 id. 598.