Davies v. Toms

• Decision Date: 24 March 1954
• Docket Number: No. 9390,9390
• Citation: 75 S.D. 273,63 N.W.2d 406
• Parties: DAVIES et al. v. TOMS et al.
• Court: South Dakota Supreme Court

Page 406

63 N.W.2d 406

75 S.D. 273

DAVIES et al. v. TOMS et al.

No. 9390.

Supreme Court of South Dakota.

March 24, 1954.

Rehearing Denied April 30, 1954.

Max Royhi, Boyd M. Benson, Huron, and J. W. Bollinger, Platte, for plaintiffs and respondents.

Churchill & Churchill, Huron, for defendants and appellants.

LEEDOM, Judge.

The circuir court of Beadle County entered a judgment setting aside a deed that named appellants as grantees. The deed if valid would convey to appellants, a brother and sister of the grantor, now deceased, real estate that except for the deed would have remained in the deceased grantor's estate and been subject to the operation of her will. The will, identical to that of her husband who died less than 60 days before grantor, devised a half interest in the land to each of two groups of persons, to the grantor's brother and sister (appellants) and the children of her deceased brother, on the one side, and grantor's deceased husband's brothers and sisters and children of his deceased brother on the other side. The latter group brought the action to have the deed set aside and thus to restore the property to the estate. We affirm the judgment entered below setting the deed aside.

Respondents sought to set the deed aside on the ground, among others, that it was executed and delivered because of the undue influence of appellants on their sister. The trial court rested its decision on this ground. We deem the issue of undue influence decisive of the case and so deal only with it and those questions necessarily incident to it.

Appellants cite numerous cases including those of this jurisdiction holding that mere opportunity for exerting undue influence does not warrant setting a deed aside, that a conveyance to persons in a confidential relationship is not necessarily bad though they do not concede that relationship existed here, and that deeds resulting from influence that flows from a display of affection, kind treatment and friendly helpfulness are not invalidated as products of 'undue' influence. With these abstract principles of law we do not argue. The difficulty is encountered in applying the principles to a given case, in determining the truth from available evidence, and in drawing the line between that kind of influence that does not control the will of the contracting party and the other kind, the result of excessive selfishness or that partakes of the quality of fraud that destroys the gift or contract, and that the law terms undue influence. Even though certain of the cases cited by appellants involve fact situations somewhat similar to those here involved and in certain instances required this court to reverse the trial court's finding of undue influence, none in our opinion presents a fact situation so closely analogous to the facts in the case at bar as to sustain appellants' view that this evidence does not support the trial court's finding of undue influence.

The burden was on respondents to establish undue influence. 17 Am.Jur., Duress and Undue Influence, § 38. This they did to the satisfaction of the judge in the trial court. The finding of undue influence there entered will not be disturbed unless it appears from the record there is a clear preponderance of evidence against it. In re Thompson's Estate, 48 S.D. 474, 205 N.W. 47.

We attach special significance to these circumstances in reaching the decision that the evidence supports the trial court's finding that the deed was the result of appellants' undue influence:

First. The disposition of the property by the deed was in contradiction of the will made about 60 days before the deed. The will clearly had the thoughtful and independent consideration of both the grantor of the deed, and her husband. It provided for a natural and fair disposition of the property. The change brought about by the deed is a result from which the trier of facts could decide that undue influence was in fact exerted. Such a result is one of four recognized elements of undue influence, i. e., (1) a person that is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence. The record shows that appellants acquired not only the land described in the deed but also other property of very considerable value, substantially all that their grantor owned. This circumstance in our view might justifiably in the opinion of the trial court bear on Clement (3) mentioned above, that is, a disposition on the part of the persons benefited to exert undue influence.

Second. The grantor, aged 61 and very ill, was almost entirely dependent on appellants for the management of her farm and all other business matters and for the execution of every personal desire and furnishing every need excepting the professional nursing and medical care given during the time spent in the hospital, for about two months prior to the execution of the deed. This gave appellants an unusual opportunity to exert undue influence if they were so disposed. Such opportunity alone of course would not justify setting the deed aside, but obviously opportunity is indispensable to the exertion of undue influence. By reason of the intimacy of this relationship between grantor and appellants they inevitably influenced grantor's acts. The question for decision in the case is whether that influence was improper under the law.

Third. The trial court found from the general demeanor of appellants on the witness stand and the evasive, reluctant and hesitant manner in which they answered questions that their entire testimony was not worthy of belief. Apart from the special opportunity a trial judge has to determine a witness' credibility through personal observation, the record discloses support for this finding of the trial court. This conclusion of falsity in appellants' testimony furnishes in a large part the fraudulent or selfish and unfair design essential to a judicial finding of 'undue' influence and tends to render improper the influence that otherwise might have been adjudged to flow naturally from what would appear to be acts of kindness and sacrificial helpfulness bestowed upon the grantor by appellants.

Fourth. A few days before the deed was signed appellant Kiel endorsed a check payable to grantor's deceased husband and instead of holding it for the account of the payee's estate which the other appellant later administered, deposited it to the account of grantor. This account of the grantor was later divided equally between the two appellants by a check drawn by Mrs. Kiel in favor of the other appellant and by a transfer of funds within the depository bank to her own credit. Testimony concerning these transactions indicates that the manner of handling them was not forthright if not irregular. This circumstance in the case adds to the 'undue' character of appellants' influence with grantor.

Fifth. In the eight months prior to her death grantor had been admitted to the hospital 12 times. For several weeks during the latter part of this period she was quite regularly given injections of a narcotic drug, by nurses when in the hospital, and by appellant Kiel when at home between periods of hospitalization. On the day before the deed was signed she had 6 such injections. On the day of the signing she had 5. Her regular physician testified that on these two days she 'was under constant narcosis' a condition in which she would not understand 'much of anything' and that a person so under narcotics 'can be easily led'. This weakened condition of grantor physically and mentally and her dependence on appellants as set out in paragraph Second...