Gibson v. Hammang

• Decision Date: 18 December 1901
• Citation: 63 Neb. 349,88 N.W. 500
• Parties: GIBSON v. HAMMANG.
• Court: Nebraska Supreme Court

63 Neb. 349

88 N.W. 500

GIBSON

v.HAMMANG.

Supreme Court of Nebraska.

Dec. 18, 1901.

Syllabus by the Court.

1. The rule that the findings of the district court will not be disturbed upon appeal if there is evidence sufficient to sustain them does not apply with the same force to a case heard almost entirely upon depositions which involve transactions in another state, so that the trial judge could have had no advantage from generallocal knowledge of the parties, the witnesses, and the subjects of controversy.

2. In case of a gift or voluntary conveyance from parent to child, no presumption of fraud or undue influence arises, as between the parties thereto, from the mere fact of the relation.

3. But where a conveyance from a parent to one of several children by way of gift prima facie is not a just or reasonable disposition of the parent's property, and the age and physical condition of the parent, the proportion of the property conveyed to the whole estate, and the circumstances surrounding the gift suggest fraud and undue influence, the transaction should be closely scrutinized, and the burden is upon the donee to overcome the presumption of fact arising from such circumstances.

4. A widow nearly 78 years of age, much weakened by a recent illness, conveyed properties of the value of $10,000, out of a total estate of about $18,000, to one of her eight children. Upon review of the evidence in a suit brought by her to set aside one of the conveyances, held, that the transfer was procured by undue influence, and should be canceled.

Commissioners' opinion. Department No. 2. Appeal from district court, Douglas county.

Action by Mrs. Sarah Gibson, revived after her death in the name of Henry Gibson, her administrator, against Marietta Hammang, to set aside a conveyance for undue influence. From a judgment for defendant, plaintiff appeals. Reversed.

C. E. Herring, for appellant.

Wm. O. Bartholomew, for appellee.

POUND, C.

Mrs. Sarah Gibson, the original plaintiff in this cause, was a widow, about 78 years of age, residing at Los Gatos, Cal. She was the owner of the property on which she lived at Los Gatos, a store building there, some stock in a bank and in a water company, and some improved property in Omaha, in this state,--in all, if we may judge by the value of her estate when she died, not very long subsequent to the transaction here in question, worth about $18,000. In April, 1896, the defendant, her daughter, who lived in Omaha, came to visit her, and remained about six weeks, during which time Mrs. Gibson conveyed to her the home property at Los Gatos and the property in Omaha. This suit was brought by Mrs. Gibson in June following to set aside and cancel the conveyance of the Omaha property on the ground that it had been procured by fraud and undue influence. The plaintiff died soon after, and the cause proceeded in the name of her representative. In the lower court there was a general finding for the defendant, and judgment accordingly, which is now appealed from.

At the outset we are met by the question how far we ought to undertake to review the evidence. As a general proposition, if the evidence is conflicting, or if there is evidence sufficient to sustain the findings of the district court, its determination of questions of fact will not be disturbed, even though we might have reached a different conclusion if called upon to decide such questions in the first instance. If that principle is to be applied to the case at bar, our task is a very simple one; for the testimony of the defendant, of itself, is sufficient to sustain the findings below, within the meaning of the rule. But in Delorac v. Conna, 29 Neb. 811, 46 N. W. 255, it is held that the rule does not obtain in its full force where the testimony is not taken orally in court, and that in such cases this court will examine questions of fact de novo.

In some cases, it is true, even where all the testimony was taken out of court, and was before the trior of fact only in written form, this court has refused to interfere with findings of fact supported by evidence. Waldron v. Bank, 60 Neb. 245, 82 N. W. 856. It will be found, however, that there was a peculiar and a sound reason for such course in each of those cases. Thus, in Waldron v. Bank supra, the issue was as to the value of certain real property situated in the county where the district court sat, and was to be determined by the affidavits of residents of that county, of whom the trial judge knew more as to their character and credibility than this court could expect to know or to learn from the record. Here we have a case in which a part of the evidence was taken in open court, but by far the greater part was before the district court only in depositions, and in which the transaction in question took place in another state, so that the trial judge could have no advantage over us by reason of general local knowledge of the parties, the witnesses, or the subjects of controversy. Under such circumstances, the reason of the general rule fails; and as the rule is of purely judicial origin, intended to promote justice by leaving the determination of questions of fact to those best situated to reach a sound conclusion, we think it should only be applied where its reason operates, and that where the lower court enjoyed no substantial advantage, by reason whereof it was presumably better able to decide rightly than we are, it is the duty of this court to try the facts de novo and announce its independent conclusion. We are the more urged to such a holding in this case because we gather from the record that the lower court misapprehended the rules as to burden of proof which in our opinion should govern.

It seems to be contended by counsel for appellant that the relation of parent and child is so far one of trust and confidence that, in any case where one obtains a conveyance from the other, the burden is upon the grantee to establish that the transaction was fair and honest. We are unable to assent to this proposition, nor is it sustained by the authorities cited. While the relation predisposes to trust and confidence, yet some circumstances of reliance or dependence of one upon the other, or habitual trust, ought to appear in addition. No presumption of fraud or undue influence arises from the mere existence of the relation. Samson v. Samson, 67 Iowa, 253, 25 N. W. 233; 27 Am. & Eng. Enc. Law, 488. Where the parent is old and feeble and dependent upon the child, or where the child has been given the control and management of the parent's affairs, or has been largely consulted therein, or where they have long lived together, the fiduciary relation may be clear enough. But where, as in this case, parent and child have long lived apart, neither is dependent on the other, neither has habitually consulted or advised with the other, and but a few weeks have elapsed from their reunion to the transaction in question, while we do not deny that a relation...