31 kindred." Fair argument or persuasion, or appeals to the conscience or sense of justice of a grantor, by one having a claim upon his bounty, do not, if such persuasion is fairly made, lay a foundation for vacating a deed executed as an apparent or possible result of such influence.30 Hence there is no ground for the imputation of "undue" influence in the technical sense when, for example, a testator divides his property equally among all his children or approximately so,31 or where a daughter obtains a conveyance of property from her father by personal solicitation, when her brothers and sisters have already received similar grants,32 or when the grantee in a conveyance has given a full consideration for it, or at least a consideration not markedly inadequate. And a contract will not be set aside on the ground of undue influence, apart from fraud, when it is proper in itself and is for the real advantage of the party who seeks to annul it, as, for instance, a conveyance made by a man habitually intemperate, but not drunk at the time of execution, transferring all his property in trust for his wife and children.84 § 241. Acquisition and Exertion of Undue Influence.As to the ways in which an overpowering influence upon the mind and will of another person may be acquired, they are as various as the circumstances of mankind. The facts disclosed in the many reported decisions on this subject show that the acquisition of such an influence is favored by the existence of a strong personality on the one side and of feeble powers of resistance on the other, by close and intimate intercourse, by the isolation of the subject from his friends and kindred, by sickness, old age, and feeble mentality, by circumstances giving the one person a power to check or control the purposes and impulses of the other, or the power to distress and embarrass him by a threatened 29 Wallace v. Harris, 32 Mich. 380. 30 Boyer v. Boyer, 33 Ohio Cir. Ct. R. 279. 81 In re Tunison's Will, 83 N. J. Law, 277, 90 Atl. 695. 82 Hummel v. Kistner, 182 Pa. 216, 37 Atl. 815. 33 Mauney v. Redwine, 119 N. C. 534, 26 S. E. 52; Hatch v. Ferguson (C. C.) 57 Fed. 959; Mansfield v. Hill, 56 Or. 400, 107 Pac. 471, 108 Pac. 1007. 84 Birdsong v. Birdsong, 2 Head (Tenn.) 289. 36 course of action, by terrorization, importunity, persistent persuasion, and by every situation which puts the one person in a position of ascendancy and the other in a position. of dependence and helplessness. But in order to set aside a deed, contract, will, or other instrument on this ground, it is not enough to show that the person benefiting thereby had acquired an influence over the mind of the subject, or even that he had an opportunity to exercise it, but it must. be shown, by proof or legitimate inference, that such influence was actually exerted.35 But undue influence does not imply the use of physical coercion or force, for the definition is satisfied by any influence, however acquired and exercised, which destroys the free will and free agency of the subject. Such an influence having been acquired as will induce the one person to place implicit confidence in the other, it may be exercised "unduly" by abusing that confidence to perpetrate a fraud, or to procure the execution of an instrument by a person who is ignorant of its contents or is deceived as to its nature or legal effect,88 or to extort a grant or conveyance of property by a combination of false representations, promises, and threats, as where one, having acquired a controlling influence over another, induces him to convey his property to him, under the pretense that such a course is necessary to save it from being seized and swept away by certain supposed creditors, or that the grantor is in danger of being committed to an insane asylum, from which the grantee can save him, or that, if the conveyance is not made, the grantor will be separated from his relatives and rendered homeless, or that it is the only way to compromise and settle 40 41 42 37 39 35 In re Burke's Will, 86 Misc. Rep. 151, 149 N. Y. Supp. 142; Wilcoxon v. Wilcoxon, 165 Ill. 454, 46 N. E. 369. 36 Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087. 37 Austin v. Bridges, 21 Ky. Law Rep. 694, 52 S. W. 966; Spencer v. Merwin, 80 Conn. 330, 68 Atl. 370. 38 Hammell v. Hyatt, 59 N. J. Eq. 174, 44 Atl. 953; Gorman v. McCabe, 24 R. I. 245, 52 Atl. 989; Disbrow v. Disbrow, 164 N. Y. 564, 58 N. E. 1086. 39 Hayes v. Kerr, 19 App. Div. 91, 45 N. Y. Supp. 1050 40 Reck v. Reck, 110 Md. 497, 73 Atl. 144. 41 Collins v. Seyfang, 49 Wash. 554, 95 Pac. 1088. 42 Combs v. Davidson, 24 Ky. Law Rep. 2528, 74 S. W. 261. BLACK RESC.-41 31 kindred." Fair argument or persuasion, or appeals to the conscience or sense of justice of a grantor, by one having a claim upon his bounty, do not, if such persuasion is fairly made, lay a foundation for vacating a deed executed as an apparent or possible result of such influence.30 Hence there is no ground for the imputation of "undue" influence in the technical sense when, for example, a testator divides his property equally among all his children or approximately so,31 or where a daughter obtains a conveyance of property from her father by personal solicitation, when her brothers and sisters have already received similar grants,32 or when the grantee in a conveyance has given a full consideration for it, or at least a consideration not markedly inadequate. And a contract will not be set aside on the ground of undue influence, apart from fraud, when it is proper in itself and is for the real advantage of the party who seeks to annul it, as, for instance, a conveyance made by a man habitually intemperate, but not drunk at the time of execution, transferring all his property in trust for his wife and children.3 34 33 § 241. Acquisition and Exertion of Undue Influence.— As to the ways in which an overpowering influence upon the mind and will of another person may be acquired, they are as various as the circumstances of mankind. The facts disclosed in the many reported decisions on this subject show that the acquisition of such an influence is favored by the existence of a strong personality on the one side and of feeble powers of resistance on the other, by close and intimate intercourse, by the isolation of the subject from his friends and kindred, by sickness, old age, and feeble mentality, by circumstances giving the one person a power to check or control the purposes and impulses of the other, or the power to distress and embarrass him by a threatened 29 Wallace v. Harris, 32 Mich. 380. 80 Boyer v. Boyer, 33 Ohio Cir. Ct. R. 279. 31 In re Tunison's Will, 83 N. J. Law, 277, 90 Atl. 695. 82 Hummel v. Kistner, 182 Pa. 216, 37 Atl. 815. 33 Mauney v. Redwine, 119 N. C. 534, 26 S. E. 52; Hatch v. Ferguson (C. C.) 57 Fed. 959; Mansfield v. Hill, 56 Or. 400, 107 Pac. 471, 108 Pac. 1007. 84 Birdsong v. Birdsong, 2 Head (Tenn.) 289. course of action, by terrorization, importunity, persistent persuasion, and by every situation which puts the one person in a position of ascendancy and the other in a position of dependence and helplessness. But in order to set aside a deed, contract, will, or other instrument on this ground, it is not enough to show that the person benefiting thereby had acquired an influence over the mind of the subject, or even that he had an opportunity to exercise it, but it must be shown, by proof or legitimate inference, that such influence was actually exerted.35 But undue influence does not imply the use of physical coercion or force, for the definition is satisfied by any influence, however acquired and exercised, which destroys the free will and free agency of the subject. Such an influence having been acquired as will induce the one person to place implicit confidence in the other, it may be exercised "unduly" by abusing that confidence to perpetrate a fraud,37 or to procure the execution of an instrument by a person who is ignorant of its contents or is deceived as to its nature or legal effect,38 or to extort a grant or conveyance of property by a combination of false representations, promises, and threats, as where one, having acquired a controlling influence over another, induces him to convey his property to him, under the pretense that such a course is necessary to save it from being seized and swept away by certain supposed creditors, or that the grantor is in danger of being committed to an insane asylum, from which the grantee can save him, or that, if the conveyance is not made, the grantor will be separated from his relatives and rendered homeless, or that it is the only way to compromise and settle 40 41 42 39 35 In re Burke's Will, 86 Misc. Rep. 151, 149 N. Y. Supp. 142; Wilcoxon v. Wilcoxon, 165 Ill. 454, 46 N. E. 369. 36 Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087. 37 Austin v. Bridges, 21 Ky. Law Rep. 694, 52 S. W. 966; Spencer v. Merwin, 80 Conn. 330, 68 Atl. 370. 38 Hammell v. Hyatt, 59 N. J. Eq. 174, 44 Atl. 953; Gorman v. McCabe, 24 R. I. 245, 52 Atl. 989; Disbrow v. Disbrow, 164 N. Y. 564, 58 N. E. 1086. 39 Hayes v. Kerr, 19 App. Div. 91, 45 N. Y. Supp. 1050 40 Reck v. Reck, 110 Md. 497, 73 Atl. 144. 41 Collins v. Seyfang, 49 Wash. 554, 95 Pac. 1088. 42 Combs v. Davidson, 24 Ky. Law Rep. 2528, 74 S. W. 261. BLACK RESC.-41 a litigation which is actually pending but is entirely unfounded in law. 43 So again, an influence over another may be unduly exercised by taking advantage of his pecuniary necessity and distress, or by continuous and persistent persuasion and importunity, especially when directed upon the mind of a person who is incapable of vigorous resistance by reason of age, sickness, or a natural susceptibility to suggestion,*5 or who is cowed by the ill temper and quarrelsome disposition of the other.40 46 But undue influence does not always proceed by frontal attack, that is, by harshness, severity, threats, or direct solicitation. Its ways are often more insidious, and its approaches guarded and crafty. It is a favorite device of persons seeking illegitimately to further their own ends, by such means, gradually to prejudice the mind of the person practised upon against those who have natural claims upon his bounty, and to extirpate or poison his affection for them. And such a course is best carried out when the subject is isolated and kept from the society of his friends and the benefit of their advice. This is well illustrated by a case in Georgia, in which the facts alleged in an administrator's bill in equity to set aside deeds made by his intestate, were as follows: That the defendants in the action were the children of the decedent by his first marriage; that he contracted a second marriage, and at the time of his death was survived by his widow and an infant son; that he was the owner of land and personal property; that his last illness endured for a period of about five months, during all of which time his mind and body were so weak that he had no will of his own; that while he was in this condition, the defendants entered into a conspiracy to defraud the widow and infant son, and had deeds to the different defendants prepared, which purported to be execut 48 Tucker v. Roach, 139 Ind. 275, 38 N. E. 822. 44 Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584. 45 Ashmead v. Reynolds, 134 Ind. 139, 33 N. E. 763, 39 Am. St. Rep. 238; Tomlinson v. Tomlinson, 162 Ind. 530, 70 N. E. 881; Groesbeck v. Bennett, 109 Mich. 65, 66 N. W. 664. 46 Albrecht v. Hunecke, 196 Ill. 127, 63 N. E. 616; Troub v. Thorp, 152 Mich. 363, 116 N. W. 204. 47 Jordan v. Cathcart, 126 Iowa, 600, 102 N. W. 510. |