which he has no wish to do, but which he is unable to refuse." Thus, mere persuasion does not amount to undue influence where it does not override the will of the person addressed, though it induces him to make a disposition of his property different from what he would otherwise have made. But if the effect is produced, the law is not concerned to measure the exact degree of influence exerted. No matter how slight it may be, if it does in effect deprive the subject of his freedom of choice and will, it will invalidate the acts or deeds resulting from it.81 "The extent or degree of the influence is quite immaterial, for the test always is, was the influence, whether slight or powerful, sufficient to destroy free agency, so that the act put in judgment was the result of the domination of the mind of another, rather than the expression of the will and mind of the actor?" 82

§ 247. Age and Infirmity of Grantor or Donor.-In determining whether undue influence has been exerted, it is important to take into consideration the age and physical condition of the person in question. For since it is of the

79 Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. Ed. 112; Bowdoin College v. Merritt (C. C.) 75 Fed. 480; Stroup v. Austin, 180 Ala. 240, 60 South. 879; Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45; Shea v. Murphy, 164 Ill. 614, 45 N. E. 1021, 56 Am. St. Rep. 215; Sargent v. Roberts, 265 Ill. 210, 106 N. E. 805; Riordan v. Murray, 249 Ill. 517, 94 N. E. 947; Sears v. Vaughan, 230 Ill. 572, 82 N. E. 881; Mallow v. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; Nixon v. Klise, 160 Iowa, 238, 141 N. W. 322; Yahr v. Hynes, 159 Ky. 518, 167 S. W. 680; Kennedy v. Kennedy, 124 Md. 38, 91 Atl. 759; Somers v. McCready, 96 Md. 437, 53 Atl. 1117; Howard v. Farr, 115 Minn. 86, 131 N. W. 1071; In re Tunison's Will, 83 N. J. Law, 277, 90 Atl. 695; Howard v. Howard, 112 Va. 566, 72 S. E. 133; Delaplain v. Grubb, 44 W. Va. 612, 30 S. E. 201, 67 Am. St. Rep. 788; Erwin v. Hedrick, 52 W. Va. 537, 44 S. E. 165; Woodville v. Woodville, 63 W. Va. 286, 60 S. E. 140; Ritz v. Ritz, 64 W. Va. 107, 60 S. E. 1095; Farnsworth v. Noffsinger, 46 W. Va. 410, 33 S. E. 246; Drink wine v. Gruelle, 120 Wis. 628, 98 N. W. 534. And see Akers v. Mead (Mich.) 154 N. W. 9. In determining whether or not a deed was obtained by undue influence, the grantor's powers of resistance to the exertion of influence, as shown by his physical and mental condition, must be considered. Youtsey

v. Hollingsworth (Mo.) 178 S. W. 105.

80 Posey v. Donaldson, 189 Ala. 366, 66 South. 662.

81 Watson v. Holmes, 80 Misc. Rep. 48, 140 N. Y. Supp. 727. 82 Haydock v. Haydock, 33 N. J. Eq. 494.

essence that he should have been led to do something which would not have been in accordance with his own wishes and desires if left perfectly free, it follows that we must take into account the measure of the susceptibility of his mind to outside influences, or, in other words, the degree of resistance which it is able to offer to the suggestion of a course of action naturally repugnant or undesired. And it is well known that in most cases, though not invariably, this susceptibility is increased, and those powers of resistance are weakened, by the effects upon the mind and will of advanced age, sickness, and the prostration of the physical powers. When these conditions exist, the field is ripe for any one possessing influence over the subject to exercise it. And if a gift or grant is made by a person thus enfeebled by age and infirmity to one shown to possess an influence over him, and especially if the transfer does not appear to be based upon any proper consideration or to be prompted by any adequate motive, a very strong showing of undue influence will have been made.83 Thus, in one case, evidence that a frail old man conveyed all his property, worth many thousand dollars, to his housekeeper, without any consideration, was held sufficient to avoid the deed for undue influence.84 And a similar ruling was made in a case where the grantor in a deed was old, sick with an incurable disease, and so broken in mind and body from the excessive use of stimulants as to be incapable of realizing what he was doing, and in a case where a woman, who sold her property for an insufficient price on the suggestion of the purchaser that she had best convert it into money so as to avoid a threatened litigation, was shown to have been in a condition of great mental distress in consequence of the death of her husband, and so agitated and despondent at and about the time of the transfer that she talked of suicide

85

88 See Haydock v. Haydock, 33 N. J. Eq. 491; Morton v. Davis, 105 Ark. 44, 150 S. W. 117; Casey v. Howard, 105 Ga. 198, 31 S. E. 427; Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087; Holland v. John, 60 N. J. Eq. 435, 46 Atl. 172; Caddell v. Caddell (Tex. Civ. App.) 131 S. W. 432.

84 Aldrich v. Steen, 71 Neb. 33, 98 N. W. 445, 100 N. W. 311. 85 Wolf v. Harris, 57 Or. 276, 106 Pac. 1016, 111 Pac. 54.

and received the ministrations of a physician and a priest.86 Particularly does the law regard with grave suspicion a transfer of property made by a person upon his death-bed. There are indeed cases in which the mental faculties remain unclouded, and the will resolute, almost to the very moment of dissolution. But this is not usually the case, and if advantage is taken of a dying grantor, whose physical strength is spent and whose mind is weak, any influence brought to bear upon him, though it be no more than mere solicitation, will be an undue influence and justify the avoidance of the grant.87

88

But evidence of this kind is not conclusive. Though it be shown that a grantor or donor was aged, feeble, diseased, or even moribund, yet this alone is not ground for undoing his acts, and if it appears that he nevertheless understood clearly what he was doing and was fully informed of the facts which might or should have guided his decision, the transaction should not be set aside without positive proof of undue influence. It is said that undue influence in procuring an assignment of property rights cannot be inferred solely from the advanced age of the assignor,89 and in fact, that old age, physical infirmity, and feebleness of intellect on the part of a grantor do not raise any legal presumption of undue influence exerted upon his mind."0 And a written contract, executed by one in a dangerous illness and in contemplation of death, cannot be rescinded on his recovery if it is not shown that his mind was impaired, or that it was secured by fraud or undue influence.°1

§ 248. Temporary or Permanent Mental Weakness of Subject.-Contracts and conveyances made by persons who are mentally infirm, with feeble understanding and impaired or subnormal faculties of reasoning and judgment, will

86 Bruguier v. Pepin, 106 Iowa, 432, 76 N. W. 808.

87 Wiltsey v. Wiltsey, 153 Iowa, 455, 133 N. W. 665; Dooley v. Holden, 53 App. Div. 625, 65 N. Y. Supp. 713.

88 Montgomery v. Clark (Tenn. Ch. App.) 46 S. W. 466; Furlong v. Sanford, 87 Va. 506, 12 S. E. 1048.

89 Holmes v. Holmes, 129 Mich. 412, 89 N. W. 47, 95 Am. St. Rep. 444.

90 Teter v. Teter, 59 W. Va. 449, 53 S. E. 779.

91 Wallace v. McVey, 6 Ind. 300.

be closely scrutinized by courts of equity to discover whether any fraudulent or sinister influence has been exerted upon them, and such transactions will be set aside if their nature justifies the conclusion that the party has not exercised a deliberate judgment, but that he has been imposed upon or overcome by cunning or undue influence." As observed by the Supreme Court of the United States: "It is sufficient to show that [the grantor] from her sickness and infirmities, was at the time in a condition of great mental weakness, and that there was gross inadequacy of consideration for the conveyance. From these circumstances, imposition or undue influence will be inferred. *

92

It may be stated as settled law that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party or his representatives or heirs, interfere and set the conveyance aside." "3

To illustrate the application of this rule, we may first cite a case in which it appeared that the plaintiff was seventyfive years of age, sickly, childish, and eccentric, and generally considered by his neighbors to be insane. Being without ready money or means of support, and having no one to care for him, he conveyed his farm to the defendant in the action. This was done at the defendant's solicitation, and upon his promise to maintain and support the plaintiff during the remainder of his life. But the farm greatly exceeded in value the probable cost of such maintenance for the period of plaintiff's reasonable expectation of life. In addition, there was evidence showing that the plaintiff failed clearly to understand the nature of the transaction, and the

E. 381; McDowell v.
Heath v. Tucker, 153

92 Elmstedt v. Nicholson, 186 Ill. 580, 58 N. Edwards' Adm'r, 156 Ky. 475, 161 S. W. 534; Mo. App. 356, 134 S. W. 572; Bennett v. Bennett, 65 Neb. 432, 91 N. W. 409, 96 N. W. 994; Meyer v. Fishburn, 65 Neb. 626, 91 N. W. 534; Mott v. Mott, 49 N. J. Eq. 192, 22 Atl. 997; Baugh v. Buckles, 2 Ohio Cir. Ct. R. 498; Zeigler v. Shuler, 87 S. C. 1, 68 S. E. 817; Du Bose v. Kell, 90 S. C. 196, 71 S. E. 371; Crebs v. Jones, 79 Va. 381.

93 Allore v. Jewell, 94 U. S. 506, 24 L. Ed. 260.

conveyance was set aside as having been procured by undue influence.94 In another case, a woman seventy years old, of weak mind, subject to vagaries and hallucinations, left her nephew's home where she had been living, and after being arrested for vagrancy and taken in charge by the poor department, was assigned to a "home." She had about $3,000 in a bank. Soon after entering the home, she signed drafts for the money in bank, payable to the home, which had been prepared by the attorney for the home and were signed in his presence and that of the matron, the consideration being supposed to be the support of the woman during her life and her burial after death. It was held that the assignment was void for undue influence.95

It should be carefully noted that this is altogether a different matter from the question of the grantor's possessing testamentary or contractual capacity. If he has not, his deed is void or voidable, but not on the ground of undue influence. In the proper and legal sense of the term, undue influence cannot be exerted over an insane person.' 96 Inducing one to act who has not sufficient mind to know what he is doing, is an actual fraud, but does not constitute undue influence. Bargains cannot be made with a person who is an imbecile, and where a deed was not knowingly executed a claim that it was procured through undue influence cannot be supported." The condition in which such influence may be brought to bear is that in which the person practised upon is not insane nor an idiot, but yet is so weakminded that he may be readily cajoled or bullied into doing what he does not wish to do.100 Hence, on the one hand, it is not necessary, in order to prove undue influence, that the mind shall be shown to be so weak as to render the person upon whom the influence is exercised incapable of attend

94 Kennedy v. Currie, 3 Wash. 442, 28 Pac. 1028.

95 McCormick v. St. Joseph's Home, 26 Misc. Rep. 36, 55 N. Y. Supp. 224.

96 Stirling v. Stirling, 64 Md. 138, 21 Atl. 273.

97 Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45.

98 Mason v. Dunbar, 43 Mich. 407, 5 N. W. 432, 38 Am. Rep. 201. 99 Kosturska v. Bartkiewicz, 241 Ill. 604, 89 N. E. 657. 100 Johnson v. Stonestreet, 23 Ky. Law Rep. 2102, 66 S. W. 621.