Turner v. Gumbert

Decision Date18 February 1911
PartiesJOHN TURNER, Appellant, v. MARY C. GUMBERT, Respondent
CourtIdaho Supreme Court

CONVEYANCE FOR LOVE AND AFFECTION - UNDUE INFLUENCE - PROOF NECESSARY TO ESTABLISH-RELATIONSHIP OF PARTIES-MENTAL CONDITION OF GRANTOR-PRIOR DECLARATIONS OF GRANTOR.

(Syllabus by the reporter.)

1. In an action to set aside a deed of gift from an aged woman to her daughter with whom she was living, the burden of proof of undue influence rests upon the party bringing such action.

2. With reference to the mental condition of a grantor, whose deed of gift is attacked on the ground of undue influence, the testimony of the officer who took the acknowledgment and of the witnesses who were present at that time is entitled to greater weight than the testimony of interested witnesses or of those who had not seen the grantor on the occasion of the execution of such deed or for a considerable time prior thereto.

3. Influence gained by kindness and affection will not be regarded as "undue" in the absence of any proof of imposition or fraud being practiced by the grantee of a deed of gift.

4. The confidential relations naturally existing between a mother and daughter do not of themselves raise any presumption of undue influence on the part of the daughter, nor does the love and affection ordinarily manifested between parent and child create such presumption.

5. Undue influence, to justify the setting aside of a deed, must have been such as to overcome the will of the grantor, and to destroy, to some extent, at least, the free agency of the grantor. It must further appear that the undue influence alleged was exercised at the time the act in question was done, and it will not be presumed from the fact that the deed is made by a parent in favor of a child that it is unjust or unfair.

6. Declarations made by a grantor prior to the execution of a deed, and inconsistent with the execution of such deed, are not admissible in evidence.

7. The fact that a deed of gift, which was afterward attacked on the ground of undue influence, although delivered to the grantee at the time of execution, was not recorded by the latter until about the time of the death of grantor, does not affect the question of the validity of such deed.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

Action to set aside a deed on the ground of undue influence. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

Bogart & Reddoch, for Appellant.

If there is reason to believe that influence has been acquired over a person of weak mind, the transaction will be carefully scrutinized in equity. (13 Cyc. 586; Bennett v Bennett, 65 Neb. 432, 91 N.W. 409, 96 N.W. 994.)

A strong presumption of undue influence may arise from the circumstances of a particular transfer which will require close scrutiny of the transaction and cast the burden of proving its fairness upon the grantee. (29 Cyc. 1657; Gibson v. Hammang, 63 Neb. 349, 88 N.W. 500; Davis v. Dean, 66 Wis. 100, 26 N.W. 737.)

Where a fiduciary relation existed between the parties in the transaction, the party who held the position of superiority and influence by virtue of the relation has the burden of proving the compliance of the transaction with equitable requisites. (6 Cyc. 335; Whitely v. Whitely, 120 Mich. 30, 78 N.W. 1009; Ten Eyck v. Whitbeck, 156 N.Y. 341, 50 N.E. 963; Brummond v. Krause, 8 N.D 573, 80 N.W. 686; Stepp v. Frampton, 179 Pa. 284, 36 A. 177; Todd v. Sykes, 97 Va. 143, 33 S.E. 517; Doyle v. Welch, 100 Wis. 24, 75 N.W. 400; Starr v De Lashmutt, 76 F. 907.)

Where confidential relations exist, as between parent and child, the law not only watches over the transactions of the parties with great and jealous scrutiny, but it often declares such transactions absolutely void, where, between other parties, they would be open to no exceptions. (20 Cyc. 1217; Reed v. Carroll, 82 Mo.App. 102; Matter of Rogers, 10 A.D. 593, 42 N.Y.S. 133; June v. Willis, 30 F. 11.)

Where the circumstances are such as to raise the presumption of fraud or undue influence, as where one of the parties is enfeebled by sickness or old age and the relation of the parties is one of special trust and confidence, the burden is upon the donee to show by clear, convincing and satisfactory evidence that the gift was the voluntary and intelligent act of the donor. (Todd v. Grove, 33 Md. 188; Gay v. Gillilan, 92 Mo. 250, 1 Am. St. 712, 5 S.W. 7; Yosti v. Laughran, 49 Mo. 594; Coffey v. Sullivan, 63 N.J. Eq. 296, 49 A. 520; Parker v. Parker, 45 N.J. Eq. 224, 16 A. 537; Haydock v. Haydock, 34 N.J. Eq. 570, 38 Am. Rep. 385; White v. White, 60 N.J. Eq. 104, 45 A. 767; Nesbit v. Lockman, 34 N.Y. 167; Hutcheson v. Bibb, 142 Ala. 586, 38 So. 754; Nobles v. Hutton, 7 Cal.App. 14, 93 P. 289; Groff v. Stitzer, 75 N.J. Eq. 452, 72 A. 970; Hattie v. Potter, 54 Wash. 170, 102 P. 1023.)

The testimony shows that Mrs. Turner was in a decrepit state, that she was old and illiterate, and under such circumstances it was the duty of the notary to explain to her the nature and effect of the instrument, which his testimony shows he did not do. (Lyons v. Van Riper, 26 N.J. Eq. 337; Brummond v. Krause, 8 N.D. 573, 80 N.W. 686; Selden v. Myers, 29 How. (U. S.) 506, 15 L.Ed. 976.)

Mr. Cahalan testified that he read the deed over to Mrs. Turner, but it nowhere appears that she knowingly understood it, which in this character of cases is necessary. (Hoghton v. Hoghton, 15 Beav. 278, 51 Eng. Reprint, 545.)

The deed here in question is as near a testamentary act as one can be made, without putting it in the form of a will. The prior declarations of the donor, when taken in connection with all the other circumstances of the case, are entitled to their place in that chain of circumstances, and should be given such weight as the circumstances of the case will warrant. (Hobson v. Moorman, 115 Tenn. 73, 30 S.W. 152, 3 L. R. A., N. S., 749, 5 Ann. Cas. 601; Cato v. Hunt, 112 Ga. 139, 37 S.E. 183; Lemon v. Jenkins, 48 Ga. 313.)

T. D. Cahalan and W. B. Davidson, for Respondent.

The only position which appellant can take in this case which would in any wise justify his contentions under the evidence would be that the mere giving of this deed would raise a presumption of undue influence and fraud, and would place upon the respondent the burden of rebutting such presumption. This rule is not sustained by the authorities. (29 Am. & Eng. Ency. of Law, 2d ed., 132; Beanland v. Bradley, 2 Sm. & Gibb. 343, 65 Eng. Reprint, 427; Towson v. Moore, 173 U.S. 17, 19 S.Ct. 332, 43 L.Ed. 597; Soberanes v. Soberanes, 97 Cal. 140, 31 P. 910; Oliphant v. Liversidge, 142 Ill. 160, 30 N.E. 334; Tenbrook v. Brown, 17 Ind. 410; Sanborn v. Goodhue, 28 N.H. 48, 59 Am. Dec. 398; Whelan v. Whelan, 3 Cow. (N. Y.) 558; Millican v. Millican, 24 Tex. 426; Mackall v. Mackall, 135 U.S. 167, 173, 10 S.Ct. 705, 34 L.Ed. 84-87; Towson v. Moore, 173 U.S. 21-24, 19 S.Ct. 332, 43 L.Ed. 600.)

The record is absolutely silent as to any real proof of undue influence. (29 Am. & Eng. Ency. of Law, 2d ed., 110.)

In this case appellant failed to meet the rules laid down in such cases by this court in Kelly v. Perrault, 5 Idaho 221, 48 P. 45. The court says in that case: "Declarations of a grantor, made long prior to his deed, and inconsistent therewith, are not admissible for the purpose of impeaching said deed." (See, also, Mallow v. Walker, 115 Iowa 238, 91 Am. St. 158, 88 N.W. 452.)

"Undue influence must be shown to have been exercised at the time of the execution and delivery of the instrument complained of or it will not be set aside or canceled in a court of equity." (Curtis v. Kirkpatrick, 9 Idaho 629, 75 P. 760; Delaplain v. Grubb, 44 W.Va. 612, 67 Am. St. 788, 30 S.E. 201.)

"The influence must amount to force and coercion, destroying free agency as to the very act, and that the exertion of undue influence upon the very act must be proved." (Goodwin v. Goodwin, 59 Cal. 560; Estate of Carpenter, 94 Cal. 412, 29 P. 1101; Towson v. Moore, supra.)

BUDGE, District Judge. Stewart, C. J., and Ailshie, J., concur.

OPINION

BUDGE, District Judge.

This case is here on appeal from a judgment and order of the district court of the third judicial district in and for the county of Ada, overruling a motion for a new trial, and from the judgment.

The action is brought for the purpose of canceling and setting aside a deed made by Lucinda Turner, delivered to the respondent on the 17th day of September, 1907. The said deed is sought to be set aside and declared void for the reason that the same was obtained by the respondent by undue influence.

It is admitted in the pleadings that the appellant and respondent are brother and sister and the only surviving heirs of Lucinda Turner, deceased. It is also admitted that the said Lucinda Turner was, in her lifetime, the owner of lots 5 and 6 in block 89 of the original townsite of Boise City. It also appears that on or about the 10th day of June, 1885, the respondent with her family resided in the state of California, and that on the 28th day of June, 1885, she moved from the state of California to Boise City, and into the home of the said Lucinda Turner, and there resided continuously until the 11th day of May, 1909, upon which date the said Lucinda Turner died. It is also admitted that the said Lucinda Turner was eighty-three years of age at the date of her death.

It will not be necessary for us to set out in detail all the allegations of the complaint or the denials and affirmative matter contained in the answer. We will content ourselves with stating the material issues.

The appellant seeks to have said deed canceled and declared void for...

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17 cases
  • Fairview Inv. Co., Ltd. v. Lamberson
    • United States
    • Idaho Supreme Court
    • 4 Noviembre 1913
    ...therewith are not admissible for the purpose of impeaching such deed. (Kelly v. Perrault, 5 Idaho 221, 48 P. 45; Turner v. Gumbert, 19 Idaho 339, 114 P. 33; Josslyn v. Daly, 15 Idaho 137, 96 P. Whitney v. Dewey, 10 Idaho 638, 80 P. 1117, 69 L. R. A. 572; 20 Cent. Dig., par. 846.) It is high......
  • In re Estate of Randall, 7007
    • United States
    • Idaho Supreme Court
    • 23 Diciembre 1942
    ...woman to her daughter the burden of proof of undue influence rests upon the party alleging the act of undue influence. (Turner v. Gumber, 19 Idaho 339; In Re King's Estate, 57 P.2d 675 at p. 678 (Wyo.); 28 Cor. Jur. 672; Burton v. Burton, 69 P.2d 307 (Colo.). In rendering an account a perso......
  • In re the Estate of Mary Elizabeth Randall, Deceased, 7007
    • United States
    • Idaho Supreme Court
    • 23 Diciembre 1942
    ...while he was there. The strong affection between mother and daughter is not sufficient to justify a conclusion of undue influence. ( Turner v. Gumbert, supra; Shaughnessy Hood, supra; Coe v. McGran, supra; Estate of Randall, 60 Idaho 419, supra.) On the other hand, as indicated in the autho......
  • In re Estate of Randall
    • United States
    • Idaho Supreme Court
    • 7 Julio 1939
    ...even though a confidential or fiduciary relation also exist, unless circumstances indicating actual domination are shown." In Turner v. Gumbert, supra, this court "The confidential relations naturally existing between a mother and daughter do not of themselves raise any presumption of undue......
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