
    No. 927
    HOME for COLORED GIRLS et v. KILLINGSWORTH
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2665.
    Decided June 22, 1925
    1204. UNDUE INFLUENCE—To prove it existed in conveyance of real estate, plaintiff has burden of establishing said ground by clear and convincing evidence, and a mere preponderance thereof, is not sufficient.
    Attorneys—W. W. Bellew and Roettinger & Street for Home; Freiberg, Avery & Simmonds and Howard Wither by for Killingsworth; all of Cincinnati.
   PER CURIAM.

This case was heard on appeal and was an action to set aside a deed to real estate and for other equitable relief; and was brought by several of the devisees under the will of Elizabeth Killingsworth, deceased, against Wade Killingsworth.

On June 27, 1923, the decedent conveyed the real estate in question to her husband, Wade Killingsworth, and it is claimed by the Home, one of the plaintiffs, that said Elizabeth Kill-ingsworth was of advanced age, feeble in body and mind, and not able to comprehend what she was doing in executing this deed; and that her husband exercised undue influence over her, causing her to convey to him. It was asked that the deed be declared null and void and that it be set aside. The Court of Appeals held:

The rule as to the degree of proof to set aside a deed is stated in Willis v. Baker, 75 OS. 291:—“In an action by a wife or a guardian in her behalf, to have declared null and void a conveyance of her lands on the ground that she was induced to make such conveyance by undue influence, or on the ground that she was not conscious of her act in executing same, and it appears from its face that it was duly executed and acknowledged in the manner and form prescribed by statute, the burden is upon the plaintiff to establish one of said grounds by clear and convincing proofs, and a mere preponderance of the evidence in its favor is not sufficient.”

Under this rule the evidence presented fails to establish the claim of the Home for Colored Girls, as to undue influence' or mental incapacity by the degree of proof required.

Judgment for Killingsworth.  