
    No. 500
    EMERINE v. SALISBURY
    Ohio Appeals, 3rd Dist., Hardin Co.
    No. 182.
    Decided May 24, 1927.
    (Before Judges Crow, Hughes and Justice.)
    460. _ EQUITY — Where there is weakness of mind, inadequacy of consideration and circumstances of undue influence, a contract may be set aside in equity.
    First Publication of this Opinion
    Attorneys — Axline and Pendleton, Findlay for plaintiff; Stickle and Cessna, Kenton, for defendant.
   JUSTICE, J.

This case was submitted on the evidence on appeal from the Hardin Common Pleas, and •the plaintiff, Elizabeth Emerine, having died testate during pendancy of the appeal, one Wade, as executor, has been substituted as party plaintiff.

Plaintiff seeks to have set aside and can-celled a certain written agreement between the decedent and Nannie Salisbury, the defendant, and to recover $2045.86 with interest. It is conceded that decedent delivered to defendant $2000 and the agreement executed, in the form of a promissory note, called for said sum to be payable to decedent, void at the death, to bear 5% interest so. long as she lived, was unsecured and had become lost.

As reasons for setting aside the agreement, it is claimed that at the time the money was delivered, decedent was physically and mentally sick, was of weak understanding and unable to exercise good judgment in her dealing, with defendant. That she was unduly influenced by defendant; and that the agreement is without adequate consideration. The Court of Appeals held:—

1. Frorn the evidentiary facts, the ultimate facts in this case must be drawn, to the end that, in accordance with the principles and rules of equity, a decree and judgment in this case may be entered.

2. _ Upon careful consideration and weighing of evidence, we are unanimously of the opinion that plaintiff had clearly and convincingly, established the weakened mentality of this decedent; and the plain inadequacy of consideration moving her, as claimed.

3. “The acts and ■ contracts of persons of weak understanding, and who are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justify the conclusion, either that the party, through undue influence has not exercised deliberate judgment, or has been imposed upon, circumvented, or overcome by cunning or artifice.” Tracy v. Sockett, 1 OS. at pg. 54.

4. The agreement must therefore be set aside and cancelled and judgment entered in favor of plaintiff.

Judgment and decree accordingly.  