Payne v. Payne

COOPER, P. J.

It is claimed that the finding of the trial court to the effect that the deed made by plaintiff was procured by undue influence, and executed while plaintiff was weak, feeble and mentally incompetent, is not supported by the evidence.

We have carefully examined the evidence in the record, and in our opinion it is sufficient to support the finding.

The plaintiff was over seventy-nine years of age at the time she made the deed to the defendant, and very feeble, being confined to her bed most of the time. The defendant was the daughter in law, of whom she was very fond, being the widow of her deceased son and the mother of two grandchildren. Defendant had, at the request of plaintiff, left her home, and devoted her time and attention to the plaintiff as companion and nurse for some weeks prior to the time the deed was made. The evidence does not show any intentional fraud or deceit

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on the part of defendant, but, on the other hand, she appears to have been kind, patient and attentive during the days and nights she nursed and cared for plaintiff. Plaintiff was very feeble and under the influence of medicines most of the time. She talked a great deal, and at times incoherently, and seemed to fear that she would lose all her property. She told defendant that there were evil spirits in the house and that the spirits kept her from sleeping. She said that a web was being woven against her, and that the pills the doctor gave her had legs, she could feel them crawling in her stomach. She said her feet were Pandora’s feet, and made other similar remarks. While the evidence is not sufficient to show that she was mentally incompetent, yet it does show that she was delirious at times, weak and very nervous. In such condition it is a matter of common knowledge that one will exaggerate the virtues of a friend who is kind and attentive, and even conceive a totally unfounded dislike, or even hatred, to one who has apparently been negligent or remiss. A hint or even a suggestion by one who has gained the confidence of such weakened and" feeble person is often very potent in its results. We cannot say in this case that during the many days and nights in which the defendant had been faithfully and apparently lovingly attending to and nursing the plaintiff, such hints or suggestions were not made. The defendant had the deed prepared by her own attorney. Although in the home of plaintiff’s daughter, Mm. McGraw, the matter was not even mentioned to her, or to her husband, Dr. McGraw. The plaintiff did not advise with any third party, nor was it suggested to her that she do so. The notary who took the acknowledgment was brought to the house while Mrs. McGraw and her husband were absent. The deed was executed, acknowledged, delivered and recorded before anyone was informed of it other than the notary. In such case, even if we had doubts as to whether or not the deed was the free, voluntary act of the plaintiff, and if we were inclined to the belief that it was, we would not interfere with the finding of the trial judge. He saw the defendant upon the witness-stand, and had the advantage of seeing and observing her and of hearing her voice while she was testifying. In such case, if error is committed it is better to err in favor of restoring the property of a'feeble old woman to her dominion and control than to err in upholding a deed given under such