
    MARY JANE SUTTLES & AL. vs. MARTHA HAY & AL.
    Neither weakness of mind nor old age is, of itself, a sufficient ground to invalidate an instrument. To have that effect, there must be some fraud in the transaction, either expressly proved or inferred from the circumstances. . .
    The case of Smith v. Beatty, 2 Ire. Eq. 456, cited and approved.
    Cause removed by consent from the Court of Equity of Rutherford County, at the Fall Term 1S47.
    This Bill was filed in the Court of Equity of Rutherford Counly, by Mary Jane Suttles and Sarah Ann Suttles, infants, by their next friend George Suttles, against Martha Hay and George Hay, alias George Wesson, and staled, that George Hay, the elder, died in the year 1840, leaving the plaintiffs, in right of their mother. Sarah Sutiles, deceased, and George Hay, the younger, his only heirs at law and next of kin : that George Play, senior, was about ninety years of age at the time of his death, and was. at that time, and had been for many years before, of a very weak mind, incapable of transacting business and easy to be imposed upon ; that his son George Play, junior, lived with him, and, some years before his death, brought the defendant, Martha, to his house, and lived with her in adultery, until she bore a son, the defendant George Play, alias George Wesson, and married her ; that the sajd. George Play, junior, and the defendant Martha, obtained and exercised great influence over the said George Iiay, senior, by means of which they, for' several years, endeavored to procure from him a conveyance to the said George, j unior, ofatract of land, which lie then owned, of the value of about $2,500, and that,at last, by threatening to institute vexatious suits against him and by divers other artifices, false suggestions and undue influence, they procured the said George Play, senior, to execute a deed, bearing date the 8th of August 1S38, to his son, the said George, junior, for the tract of land aforesaid, upon the pretended consideration, that the said George, junior, was to support his father during his life. The bill charges, that the said deed was procured by fraud and undue influence practised upon an old man of very imbecile mind and was therefore void. The bill then states, that the said George Hay, junior, after the death of his father, took possession of the said tract of land and claimed it as his own, and, on the 23rd day of November, 1840, duly made and published his last will in writing, and therein devised the said tract of land to his wife, the defendant Martha, for life, with the remainder in fee to her Son, the defendant George Play, alias Wesson,, and soon thereafter died ; that the said Martha thereupon took possession of the said land and claimed it under the said devise. The prayer of the bill is, that the deed for the said tract of land should be delivered up and cancelled, and that the plaintiffs should be let into possession of the said land, as tenants in common with the defendants. The answer of Martha Hay admits all the material allegations of the bill, excepting those relating to the fraud and undue influence exercised over George Hay, senior, by herself and her husband, and to the manner in which the deed to her husband was executed by his father. With regard to these it denies expressly, that the defendant Martha, or her husband, George Hay, junior, acquired any influence over the said George Hay, senior, except what resulted naturally from their kind and dutiful attentions to him, and, denies also, that the said deed was procured by the means alleged in the bill. On the contrary, it avers, that the said deed was executed by the said George senior, freely and fair]}', to carry out a long settled purpose of conveying the said land to his son George, who was his.favorite child, as was manifested by his having willed to his said son the same tract of land in 1834 ; that the said George, senior, was at the time in his proper mind, and free from any undue influence whatever, and-that, In consideration of said conveyance, the said George junior, executed to his father an instrument, by which he bound himself to support his father during his life, and that he had faithfully performed the obligation. The answer of George Hay, alias George Wesson, who is an infant, is merely formal. Replications were put in to the. answers, proofs were taken on both sides, and the cause was set up for hearing, and transmitted by consent to this. Court-.'
    
      Baxter, for the plaintiffs.
    
      Gaither, for the defendants.
   Battle, J.

We have carefully examined the testimony in this case, and it entirely satisfies us, that George Hay, Senr., though, from his advanced age .and other opuses, a man of weak mind, had, at the time when he executed the deed, which has given rise to this contest, sufficient mental capacity for that purpose. Indeed the contrary is rather insinuated, than asserted in the bill, and the main ground, upon which the plaintiffs rely, is-, that the deed was obtained by means of undue influence, fraudulently exercised by George Hay, Jr., and his, wife,' over the grantor. The specific charge is, that it was obtained *‘by threats to institute vexatious suits against him and by divers other artifices, false suggestions and undue influence.” It is well settled, that neither weakness of mind nor old age is, in the absence of .fraud, a sufficient ground to invalidate an instrument. Smith v. Beatty, 2 Ire. Eq. 456. And, although it is said in the same case, “that excessive old age, with weaknets of mind, may be a ground for setting aside a conveyance obtained under such circumstances,” yet, it is manifest, t'at, to have that effect, there must be some fraud in the tran. «fiction, espressly proved or inferred from the circumstances. It is incumbent, then, upon the plaintiffs to prove their charge, that the deed was procured from the* gr inter by the fraudulent exercise of undue influence over him by the grantee and his wife. Have they done so ? Wo think that they have not. There is no testimony at al,. that George llay, junior, or his wife, at or about the time when the deed was executed, threatened the grantor with Suits of any kind, or used any artifice, or made any false suggestions, to procure its execution. Two of the plaintiffs’ witnesses, to-wit, David Miller and Isaac D. McClure, testily to declarations of the grantee, tend ng to show the exercise of undue influence by him over his father at other times. The witness, Miller, states, that George Hay, jyinior,- .told. him- that he could make histfather do any thing he wished, in relation to the disposal of his property, and he would have it done ; but the witness does not mention on what occasion or at what time this was said. Isaac D. McLure 1 estilles, that he wrote a will for the grantor in the year 1834, in which he gave the land in question to his son George, and one hundred dollars to the plaintiffs, and that, a few days afterwards, George the son said, that he compelled or almost compelled his father to will him the land ; that he told his father that he had worked on the plantation, twelve or thirteen years after he had come of age, for which he would charge one hundred dollars a year, and would sue him for it, and break him np, if he did not will him the land. If this testimony had related to the execution of the deed, and were not weakened by other circumstances, it would have much weight with us ; but such is not the case — it relates to a will, made four years before the execution of the deed. The witness, who states it, is a subscribing witness to the deed as he was to the will, and, in his deposition, as taken by the plaintiffs, not a word is said about the deed, and we only learn that he was a witness to it from seeing his name subscribed to it, and from his examination, taken subsequently by the defendants. In his latter deposition he tells us, that the old man brought the deed to him, acknowledged it, and asked him to witness it, which he did ; and that he, at the same time, witnessed an obligation from the grantee to his father : he testified further, that the old man was entirely capable of making a will when he wrote the one for him in 1834. Archibald Tollar, another witness for the plaintiffs, testifies, that, some time before the year 1834, he wrote a will for the old man, in which he gave fifty dollars to each of the plaintiffs and the residue of his property to his son George, and that he, the witness, destroyed it, after he heard that the testator had made another. Under these circumstances we cannot give much effect to the declaration of the son, made to one witness, at a time not specified, and to another four years before the deed was executed, and in relation to a will of almost precisely the same import with the one previously made, and then in existence. The testimony of the subscribing and other witnesses, taken by the defendants, does not much vary the case, except in showing, that George Hay and his wife lived with bis father many years, working upon his farm, and supported him, principally by their labor, until his death, and that he had a dislike to George Suttles, the father of the plaintiffs, saying on one occasion, after the deed was executed, that he thought he had it fixed so that George Suttles could never get another shilling out of it. Upon a consideration of the whole case, we think that the plaintiffs have altogether failed to establish their allegation, that the deed in question was procured from the grantor by the fraudulent exercise of undue influence over him by the grantee and his wife. The inadequacy of price, relied upon by the counsel for the plaintiffs, can have no application to the case, because the plaintiffs do not claim as creditors or purchasers, and because the transaction between the parties to the deed was not a purchase, but was substantially, and so intended to be, a gift from a father to a son, for whom he was under a moral obligation to provide. The bill must be dismissed

Per Curiam.

Decree accordingly.  