W. A. Stеphenson, age 76 years, died September 11,1952, after an illness of a little more than thirty days. The deed in controversy was executed August 27, 1952. Plaintiffs and defendants are children of the deceased. Lola Nelson, a daughter, did not join in this complaint and was therefore made a party defendant with defendant-grantees. It is plaintiffs’ contention that the competent and material evidence introduced disclosed a confidential relationship, the exercise of undue influence by defendants Widell Stephenson and Avis Stephenson uрon their father, and that when the purported deed was executed W. A. Stephenson was so ill that his mind was unsound and he could not contemplate the import of his act; that due to actual or constructive fraud practiced by defendant-grantees, they had the burden of proof that the deed was valid and should not be canceled. The only evidence introduced by defendants was the testimony of the notary public who took the acknowl *788 edgment of the instrument. The trial court found, however, that plaintiffs had failed to sustain their burden оf proof and adjudged the deed a valid and binding instrument conveying the title to the forty-acre farm home to defendants. Plaintiffs appealed. Other pertinent facts appear in the opinion.
I. In order to set aside a deed such as the one in the present case, the burden is upon the plaintiffs to establish by clear, satisfactory and convincing testimony that the grantor, at the time he executed it, did not understand in any reasonable manner the nature of the particular transaction in which he was engaged and the consequences and effects upon his rights and interests. Leonard v. Leonard,
The testimony produced by plaintiffs as to decedent’s physical and mental condition was that of themselves, friends of the family, and two doctors who attended decedent during the terminal illness. This testimony, except as to the doctors, in substance was that decedent did not speak to them or appear to recognize them on their visits after August 21, 1952. Neighbors gave similar testimony, though most of the time when they
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called they were advised by defendants that Mr. Stephenson was sleeping. None of them was actually present at the time the pur: ported deed was executed nor did they attempt to testify as to his condition upon that day. The testimony of the plaintiffs and the neighbors therefore was not too helpful. The crux of this case and the principal question for the court to decide was whether at the time of the execution of the deed grantor was shown to lack sufficient consciousness or mentality to understand the import of his acts. Fothergill v. Fothergill,
It is well settled that mere mental weakness, not due to mental disease but solely to physical infirmity, does not constitute mental unsoundness. Hanrahan v. O’Toole,
It is not conclusive of mental unsoundness that due to physical weakness one may fail to recognize persons or appear to be unable to converse as to his condition or affairs. Speer v. Speer, supra. Where, then, does physical disability become so acute as to destroy one’s mental sоundness? What is the proof required and the presumption applicable?
One of the principal questions here before us is whether there is substantial evidence that grantor was or was not, at the time of the execution of the instrument, sufficiently conscious to enable him to execute it. The record as to this occasion discloses that defendant-grantees summoned a friend of their father, Mr. Ellingson, and a notary public, Mr. Lowe, to come to the bedside of decedent about noon of August 27, 1952, for the purpose of witnessing and аcknowledging certain prepared instruments including the deed in question. At that time and place, in the *790 presence of all four, the record discloses decedent did acknowledge the execution of the deed in controversy. Due to the fact that what purported to be grantor’s signature already appeared on the deed, Mr. Ellingson said he did not care to witness a paper already signed and he felt the fair thing to do was to read it to Mr. Stephenson. This he. did, stating, “Everybody who had his hearing and understanding could bear me read it.” He also said to decedent, “Of course, you know that this paper leaves your property * * * or this farm, just to.two of your children. Is that your intention?” While the decedent, Mr. Stephenson, did not speak, Mr. Lowe, the notary, said he saw a nod. He also said, “The one (nod) I particularly was interested in was the one he acknowledged the signature.” During these transactions no other person spoke, and after Mr. Lowe affixed his seal to the instrument he gave the deed to Avis and they all retired.
It is clear that grantor’s method of recоgnition and assent was by the nod of his head rather than by Spoken words, but such method of communication is sufficient if understood by those concerned. How many nods there were we do not know, but apparently they were at the time sufficient to satisfy the witness and notary that the execution of the deed as prepared was grantor’s desire and purpose.
It is perhaps understandable that neither Mr. Ellingson nor Mr. Lowe was asked his opinion as to grantor’s ability to understand and comprehend the import of his act, for obviously they would not have witnessed the execution thereof unless they believed grantor sound enough of mind, in spite of his physical weakness, to know what was being done. As these persons and the defendants, who did not testify thereto, were the sole witnesses as to his mental condition on that occasion, this evidence is almost conclusive of this issue. Even though two years had passed since the transaction, the testimony is not unfavorable to defendants.
Relying principally upon testimony as to grantor’s condition both prior and subsequent to August 27, plaintiffs contend that duе to the nature of his illness grantor must be found to have been mentally unsound on the 27th of August. However, even this contention is not borne out by the medical testimony. Their claim that grantor was in a stupor or coma for almost twenty *791 clays before bis death and could not recognize or speak to anyone, is refuted by Doctor Buxton who first saw Mr. Stephenson on August 30 at the farm home and who was his doctor at the time of his death in the hospital on September 11, 1952. The cause of death, he said, was a heart condition and chronic nephritis, which is a kidney condition. He testified: “If the blood supply to the kidneys is not adequate, then your kidneys are not going to function properly. You get an accumulation of toxins in the blood.” He explained this results in poison in the blood stream and in a certain degree is called Uremia, which can cause death. Decedent was in such a stage when the doctor saw him August 30, and it so affected decedent that he did not react to questions. He was a very ill man. “* * * the matter of how much toxins, or uremia, is in your blood before you get certain symptоms of unconsciousness and coma — • # * *” depends on the percentage of toxins. “I would say the symptoms of poisoning of the blood stream had lasted I expect twenty-four hours, maybe forty-eight hours, because a man that old doesn’t live too long.” Even if we assume it might have been forty-eight- hours, this semiconscious condition would have commenced August 28, subsequent to the deed’s execution on August 27. The death certificate referred to “coma”, but as to this Doctor Buxton said: “* * * now this uremic coma didn’t exist from the first time I saw him until death. * * * When I first saw him I wouldn’t sаy lie was in a coma. I would say he was critically ill. He could be aroused. * * * He could be aroused to talk. I don’t know how intelligently.” When he was moved to the hospital Stephenson “spoke some words.” After some treatment the uremic condition subsided, he improved, and “he recognized me, wanted to know who T was.” Then about September 7 his condition became worse and he went into a coma about twelve hours before the end. The doctor explained further: “Coma lasts, as a rule, twelve to twenty-four hours” before death.
It must be concluded from this testimony that grantor Was not at all times prior to August 30 in a stupor, or coma, and that at times he could speak and was able to understand when aroused and addressed. This was true until the uremia overcame his senses near the end. While Doctor McGah'ey,- his first doctor, *792 in testifying for plaintiffs, used the term “disorientation” in referring to Stephenson’s condition prior to August 27, he explained it as a dizziness but did not say it extended to a complete or disabling- lack of his mental and physical faculties. Doctor McGahey did not have benefit of laboratory studies and was somewhat uncertain of his diagnosis. He first saw the decedent on August 17 and last on August 22 when he left for his vacation. His notations of August 22 were: “The patient is rational; seems disturbed. Does not seem to understand what is happening. Responds very slowly. Advise to go to the hospital but does not think he wants to do so.” But on cross-examination Doctor McGahey said: “I do not recall any questions that he did not answer and that they answered for him. * * * I didn’t recall that I stated 1 had difficulty getting information from him.”
Considering all the testimony in this regard, we think it falls far short of plaintiffs’ burden to show by clear and convincing proof that on August 27, 1952, at the time of the execution of the deed in question, grantor did not possess nor could not have possessed sufficient soundness of mind to know the import of the transaction so as to be able to exercise the discretion needed to execute the deed.
Here the transaction was not complicated nor confusing-even for one with mental weakness. There is nothing to indicate that the execution of the deed was not simply the carrying out оf a plan previously and definitely entertained. Such being the case, the only mental capacity necessary to be exercised was that of determining whether or not this was the proper time and if the deed was drawn as contemplated and reserved the interest grantor desired in the instrument. It is reasonable to believe such was actually the case herein and that at the time of the acknowledgment grantor did possess sufficient strength of mind to execute the deed.
II. Plaintiffs further complain that the signature on the deed was not that of grantor, but the law is clear that if grantor acknowledged the instrument before a notary public it is quite immaterial whether his name was put to it by his own hand or by the hand of another. Gribben v. Clement,
In Fowler v. Lowe,
We are satisfied plaintiffs have not furnished clear and convincing proof thаt the signature on the deed was not that of W. A. Stephenson or at least was not adopted by him on that occasion.
III. Plaintiffs maintain that because of the parent and child relationship here disclosed and because of the other facts and circumstances related, a constructive fraud, if not an actual fraud, in obtaining the execution of said deed was effected.
The rule of constructive fraud as to transactions between persons in confidential relationship is a salutary one and should be zealously uрheld. The basis of this rule is founded on
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the principle of correcting possible abuses of established confidences. But that relationship should be clearly established before the rule is invoked against one who is the beneficiary of a transaction that is free from any appearance of actual fraud. Otherwise it might become a weapon to thwart the will of the one whose interest it is designed to protect. Olsson v. Pierson,
We said in Utterback v. Hollingsworth,
This statement was cited with aрproval in the recent cases of Merritt v. Easterly,
While the relationship of parent and child is nearly always given as an illustration of confidential relations, it does not follow that all transactions between persons occupying that relation are presumptively invalid. Rather it may be said that as a general rule the conferring of benefits by a parent upon a worthy child is presumptively valid. McNeer v. Beck, supra.
The true test as to when unfavorable presumptions arise is best illustrated in situations where the child, by reason of its
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youth and inexperience or other special circumstance, is to some degree under the dominion, control or paramount influence of the parent, or where the child is the dominant personage in that relationship and the parent has become the dependent one, trusting himself and his interest to the child’s advice and guidance. Curtis v. Armagast,
In addition to the disclosed relationship of father and child, the plaintiffs rely upon the alleged mental weakness of the father due to his illness, the fact that defendants were in attendance at that time, the defendants’ reluctance to let plaintiffs “disturb”him, and the evidence that defendant Avis Stephenson asked the witness Ellingson to procure blank deed forms about two weeks before requesting him to bring a notary to their farm home August 27, 1952, to witness and notarize the deed in question. But this evidence we think falls far short of the necessary proof that she and her brother were the “dominating persons” in this relationship or that there was any so-called “overreaching” practiced. No facts appear to indicate that they were grasping or avaricious, or that they had before this time ever sought to control or gain possession of their father’s property. On the other hand, the evidence is clear that W. A. Stephenson'was the dominating figure. Onе of the plaintiffs testified: “I believe I was quite close to my father. I never transacted any of his business, and know of no one else who did. He was not the type of man to have somebody else transact his business. * * To some people *796 my father was rather a hard man to get along with. In some things he was stubborn and some things not. He had his own mind. I would say he was fairly well educated and knew what he wanted or didn’t want.” From the record it is reasonably clear that at least until he became ill in August 1952, he was the dominating figure in that household.
Speaking of a similar situatiоn found in the case of Knigge v. Dencker, supra,
Here too, with the possible exception of the time defendants were caring for their ill father, and as to that time the record is silent, decedent was the strong and dominating character in that household. No evidence of defendants’ demand or even a suggestion as to what decedent should or should not do is found in the record. There is no evidence that defendants ever did anything but their father’s bidding, and it is reasonable to believe Avis Stephenson’s first effort to procure deed forms was only complying with directions from her father and that later on August 27, 1952, he sent her to summon the witness and a notary to acknowledge the instrument drawn to his desire.
There was no actual fraud. It is sufficient to say that no witness, speaking of his or her own knowledge, testified to any misrepresentation, falsehood or deceit on the part of the defendants to persuade or mislead the father into a conveyance of the land, and the court cannot enter into the realm of conjecture to fasten that stigma upon them. Of course the so-called “constructive fraud” does not necessarily negative integrity of purpose. Johnson v. Johnson, supra. Thus it is always necessary to inquire into the relations and the circumstances attending any such transaction, giving sрecial attention to matters of fact having legitimate tendency to show the capacity of the giver and the influences, if any, leading him to make the gift or grant. Here we cannot say the grant was without any substantial considera *797 tion, for these children had given up other natural pursuits to aid their father operate the farm and keep up the household. Nixon v. Klise, supra. Grantor did not give up his life interest in the property conveyed, but retained it. There was no dishonesty of purpose even inferred and we fail to find any indicatiоn in the record of a situation in which these parties reposed special trust and confidence in the other. If such situation did exist by reason of his stronger character, greater ability and wider experience, the father had obtained a dominating influence over the defendants.
The principal case relied upon by plaintiffs, Johnson v. Johnson, supra,
The facts there clearly showed a domination
prior
to the illness and a confidential or fiduciary relatiоn justifying the shifting of the burden of proof to defendant. Such cases are largely determined by the facts. Pruitt v. Gause,
From the record before us we conclude plaintiffs have failed to prove that a confidential relationship existed between the father-grantor and defendant-grantees.
IV. The claim of undue influence is in no way established. Our decisions uniformly hold that to set aside a deed on the ground of undue influence there must be such persuasion as results in overpowering the will of a- person or which prevents him from acting intelligently, understandingly and voluntarily; in other words, such influence as to destroy the free agency of the grantor and substitute the will of another person for his own. Leonard v. Leonard, supra,
Y. Perhaps we have already adequately discussed plaintiffs’ complаint as to the mental competency of grantor. It is true there may be mental incapacity without actual insanity, and that the measure of mental weakness which amounts to unsoundness is not easy to say in precise terms. Garretson v. Hubbard,
It is well settled that mental weakness not due to mental disease until it has reached that stage which deprives the maker of capacity for intelligent action, does not сonstitute mental unsoundness such as to incapacitate him from making a deed or a will. Hanrahan v. O’Toole, supra,
We have already concluded that plaintiffs have failed to show by clear and convincing testimony that decedent had reached the stage of mental weakness such as to dеprive him of the capacity for intelligent action .on August 27, 1952, at the time of the execution of the deed in question. We are also sat *799 isfied the grantor, W. A. Stephenson, did at that time have the necessary soundness of mind required to execute a valid deed. *
VI. Plaintiffs argue there was no delivery of the deed shown, but as this issue was not raised below either in the pleadings or arguments we cannot consider it now for the first time.
VII. Of course this matter is triable anew before us on questions of fact. Obviously they depend upon testimony, the weight and credibility of which is determined someAvhat by the demeanor of the witnesses. Therefore, Ave must give weight to the findings of fact by the trial court before whom these Avitnesses testified. Here the trial court discounted the evidence given by the parties to the action due to “their interest and demeanor” and the testimony of a neighbor who “questioned the children’s credibility.” It determined the evidence failed to establish either a fiduciary or confidential relation between the grantor and grantees; that it did establish that the grantor Avas the dominant party in that father-child relationship; that the acknoAAdedgment of the deed was complete and proper; and that the act of acknowledgment Avas the voluntary act and deed of the grantor and conveyed to defendants grantor’s present interest in the land, subject to his life interest therein. We agree with these findings as Avell as the trial court’s conclusion that grantor’s deed was a valid and effective conveyance of the property therein set forth to grantees Widell Stephenson and Avis Stephenson. Tts judgment and decree is therefore affirmed.— Affirmed.