118 Wis. 548 | Wis. | 1903
The judgment rendered by the trial court was based upon two positions very definitely declared in an opinion filed and in the formal findings. Those were, first, that conveyance of the whole farm to the defendant, to the exclusion of the son and grandchildren of the grantor, was inequitable, and that it was the duty of a court of equity to prevent its having effect; secondly, that the situation was such as to raise presumption of fraud and undue influence, and require defendant to. disprove it. The specific findings of fact are, of course, to be read in the light of these preliminary positions assumed by the trial court. Maldaner v. Smith, 102 Wis. 30, 78 N. W. 140; Hill v. American Surety Co. 107 Wis. 19, 26, 81 N. W. 1024, 82 N. W. 691; Kelley v. Crawford, 112 Wis. 368, 372, 88 N. W. 296.
We cannot at all agree with either the fact or the law of the first of these views. Seventeen years of devoted attention from defendant, coloring her whole existence, controlling and modifying her life plans, and this, too, at the request of her elder brother and sister, who treated the situation as relieving them from substantially all filial responsibility, certainly might justify the parent in recognizing an equity of gratitude for which any pecuniary compensation she might be able to make would be no more 'than adequate, from her point of view,' and certainly ought not to be subject of complaint by these other children, who bad so promptly and completely transferred to the .defendant’s shoulders the filial burdens which they should have shared with her equally. So much for the facts, of which more will appear in discussion of other questions. As to the law, the position of the trial court was also fallacious. The highest equity which courts can consider is the right of an individual to dispose of his property as he chooses. The hope of inheritance which any child may indulge during a parent’s life bears no comparison in the eye of the law with the right of disposal by the parent. If Mrs. Vance, of her free will, gave this property to the defendant,
Approaching, then, the main question — whether the proofs established undue influence, either directly, or as result of an unrebutted presumption arising from the situation — it should first be noted that there is absolute lack of any direct evidence of subordination of the mind or will of the mother to that of the daughter; no proof that the slightest suggestion was ever made by the latter, or by any one in her interest. The fact does appear, on the other hand, that the mother’s purpose and desire to make the conveyance in question were her own, at the moment of directing its preparation and of executing it. Of course, this fact alone does not exclude the possibility that her mind might have been preliminarily subjected to such influences as to destroy its autonomy, and to make her declarations and acts, even in the absence of the other person, the result of the latter’s domination. Ordinarily, however, the free and intelligent declaration of a purpose to a third person, while relieved from the personal presence and control of the supposed influence, is a most cogently probative fact against that subordination of the grantor’s will which must exist to warrant the nullification of her act. Conley v. Nailor, 118 U. S. 127, 135, 6 Sup. Ct. 1001; Jackman’s Will, 26 Wis. 104, 111; Marking v. Marking, 106 Wis. 292, 295, 82 N. W. 133; Deck v. Deck, 106 Wis. 470, 82 N. W. 293; Citizens’ L. & T. Co. v. Holmes, 116 Wis. 220, 93 N. W. 39, 43. Absence of such direct proof is, however, not final, for, in apparent contradiction of the ordinary rule requiring clear and direct proof of fraud, this and other courts have recognized the necessity of casting the burden of negative proof upon one who profits from a position of confidence and “control by a conveyance of such character and made under such circumstances as to suggest improbability that it is the free act of the grantor, and probability that it is due to influence of the
This record before us discloses the not unusual event of' jireference by an aged parent of one child over the others in the final disposal of the properly, the parent’s use of which is practically ended. Perhaps the completeness of the preference in the present instance is unusual, but so is the merit of the favored child, as compared with the others. She, the youngest child, at the solicitation, of her brother, the eldest,, assumed at her mother’s widowhood, and for some seventeen years bore, substantially the entire filial duty of children to an aged mother, of daily and nightly aid and care, not involving so much of pecuniary assistance as of that personal service and responsibility which, while not easy of description or-exact definition, constitutes a continual burden of thoughtfulness upon the daughter, and adjustment of her whole life and of each day’s affairs to the needs of the mother, and which changes the declining years of the parent’s life from a period of loneliness and discomfort to one pervaded by a sense of affectionate guardianship and aid. Could such services be rendered by a stranger, even the portion of them devoted to the material comfort of this aged woman during this term off seventeen years would have justified mere pecuniary compensation quite considerable in amount. Doubtless from such a period of devoted service on the one hand, and appreciative dependency on the other, resulted a relation of trust and confidence, which, by one so disposed, might be utilized to persuade the mother into donations contrary to her own independent wish, and transactions beneficial to the daughter must be carefully scrutinized; but to hold that, where such-relation exists, no gift can stand, unless the daughter can,
Again, as to the element of opportunity for defendant to influence her mother, there was no proof such as characterized most of the cases cited. True, defendant is shown to have been persistently attendant at the bedside; but, so far as any evidence goes, the subject of disposition of property was not discussed. There can hardly be said to be opportunity to improperly influence the mind of another on any subject unless something is said with reference thereto. In all the other cases where 'presumption of undue influence was raised, there was proof of opportunity in this sense. Private interviews were shown, at which the grantor’s assent to the questioned conveyances was claimed to have- been given to the bene-
The facts and circumstances thus referred to so fully distinguish this case from both the facts and the reasons which controlled those in which a presumption of undue influence has been indulged as to take it fully out of their doctrine. There was not enough to raise any such presumption against,
By the Court. — Judgment reversed and cause remanded, with directions to enter judgment dismissing the complaint.