
    Bertha B. Osborn et al., Appellants, v. Mary E. Fry et al., Appellees.
    1 EVIDENCE: Burden of Proof — Confidential Relation. The mere showing that the grantor and grantee in a deed of conveyance are related by blood creates no presumption of confidential relationship such as to cast upon the grantee the burden to establish the bona fides of the transaction.
    2 DEEDS: Validity — Undue Influence. “Influence” exercised over the grantor by the grantee in a deed of conveyance in obtaining the deed is not “undue” in a legal sense unless it submerges the free agency of the grantor.
    Headnote 1: 18 C. J. p. 424. Headnote 2: 18 C. J. p. 236.
    
      Appeal from Black Hawk District Court. — EL B. Boies, Judge.
    June 21, 1926.
    Action to set aside a deed. The trial court dismissed the plaintiffs’ petition. The facts appear in the opinion.
    
    Affirmed.
    
      Merner & Merner, for appellants.
    
      Edwards, Longley, Bansier. & Harris, for appellees.
   Faville, J.

Appellee Mary E. Fry is the sister of appellants. Appellee E. L. Fry is her husband. Laura J. Fox was a resident of Cedar Falls, Iowa. She was the first cousin of appellants and of appellee Mary E. Fry. She died June 16, 1923. At that time she was about seventy-six years of age, and had never married. She executed a will on July 5, 1919, by the terms of which certain specific bequests of personal property were made, and also a specific bequest of $500 to appellee Mary. The residue of her estate was bequeathed in equal shares to appellants and appellee Mary. On May 18, 1923, the said Laura executed a deed by which she conveyed to Mary her homestead in the city of Cedar Falls, together with the household furniture, bedding, linen, and other articles located in said house. This action was brought to vacate and set aside said deed. Appellants are residents of tlie state of Oklahoma, Ap-pellees are residents of Cedar Rapids, Iowa. The property in controversy is worth some five or six thousand dollars. The deed is attacked on the grounds of alleged mental incapacity, undue influence, and want of consideration.

I. It is contended by appellants that a sufficient confidential and fiduciary relation was established between the grantor and the grantee to place the burden of proof upon the grantee to show the bona fides of the transaction.

The mere kinship existing between the parties, that of first cousins, is not sufficient, in and <?f itself, to place the burden of proof upon the grantee in an action of this character. It is the well recognized rule in this state that the relationship between a grantor and a grantee may be so intimate, confidential, and fiduciary that the burden of proof may properly be placed upon the grantee, to show the bona fides of a transaction of this character. The rule is, of necessity, applied according to the peculiar circumstances of the particular case where the question arises. It is difficult to lay down a hard and fast rule in such cases, except the general rule that the circumstances of any particular case may show such confidential, fiduciary, and trust relation as that the burden to establish the bona fides of a conveyance that is attacked should rest upon the grantee. As illustrating our holding under a variety of circumstances, see Good v. Zook, 116 Iowa 582; Eighmy v. Brock, 126 Iowa 535; Jordan v. Cathcart, 126 Iowa 600; Reese v. Shutte, 133 Iowa 681; Curtis v. Armagast, 158 Iowa 507; Johnson v. Tyler, 175 Iowa 723; Wahl v. Taylor, 176 Iowa 353; Wright v. Rohling, 177 Iowa 368; Flynn v. Moore, 181 Iowa 1163; Jacobson v. Byrd, 185 Iowa 1107; Pruitt v. Gause, 193 Iowa 1354; Johnson v. Johnson, 196 Iowa 343.

Under the facts of this case, we find that neither the relationship of the parties nor the circumstances surrounding them at the time of the transaction establish such a confidential and fiduciary relationship as placed the burden upon the grantee to establish the good faith of the transaction in question. Mallow v. Walker, 115 Iowa 238.

II. A large amount of evidence was offered, upon the trial, on the question of mental incapacity. It is impossible, within the reasonable length of an opinion, to review this evidence in detail. For a year or more prior to tbe execution of tbe deed in question, tbe grantor bad been suffering witb a malignant cancer. A severe operation bad been performed upon ber body, and tbe disease bad made sucb inroads tbat enormous amounts of serum accumulated in tbe abdominal cavity, requiring tbat tbe patient be aspirated frequently. It appears tbat tbe decedent was aspirated more than seventy-five times between August, 1922, and ber death in tbe following June. Sbe suffered a great deal of pain. Tbe disease made sucb inroads that tbe decedent finally became bedfast, and was under constant care. In regard to ber mental condition at or about the date of tbe execution of tbe deed, tbe testimony of ber attending physician was offered in behalf of appellants. After describing her physical condition, in answer to a direct question as to tbe impairment or unsoundness of ber mind on the date tbe deed was executed, tbe physician summed tbe matter up as follows:

“I want to be very straight on this. I would say ber mentality was erratic, meaning tbat she would have intervals of more or less judgment, and sbe might be regular at intervals, and intervals when sbe might be irregular, — more or less good judgment, combined witb intervals of more or less poor judgment.”

Other evidence in behalf of appellants, on the question of mental incapacity, consists largely of tbe testimony of two ladies who were tbe neighbors of the grantor, and who frequently visited her during ber last illness, and conversed witb her-. They described ber physical suffering, and related conversations with the grantor after the execution of tbe deed. A careful examination of their testimony, together witb all other testimony in tbe case, fails to disclose tbat tbe grantor was so lacking in mentality at tbe time of the execution of tbe deed as to be incapable of exercising the judgment and discretion necessary to give validity to tbe instrument. The evidence of other neighbors and the testimony of tbe scrivener who drew the deed and witnessed tbe signature, together witb tbe evidence of medical experts, strongly tend to sustain tbe conclusion that, while tbe grantor was ill and suffering greatly from the insidious disease witb which sbe was afflicted, she was not so lacking in mentality at tbe time of tbe execution of tbe instrument as to be incapable of executing tbe deed in question. We conclude, from tbe entire record, which we have carefully examined, that the grantor was not mentally incapacitated from executing the deed.

III. The question of mental incapacity has an important bearing upon the question of undue influence. The evidence of the scrivener is to the effect that appellee asked him to prepare the deed; that she came to the scrivener's office to see him about the matter, possibly three times. The first time she saw him was about three weeks before it was executed. She told him to prepare the deed, and to include therein not only the property, but the contents of the house; and he prepared the deed, and was accompanied by a notary, and went to the home of the grantor, where the deed was signed and acknowledged. He testified that, after executing and acknowledging the deed, the grantor repeated to him several times: “I haven’t any home now. I haven’t any home.” Ap-pellee was not in the room at the time the deed was signed, but was in the house. The scrivener testified that the grantor told him that she was executing the deed because Mrs. Fry was earing for and supporting her blind brother, the appellant Paul. The attending physician testified that, on the day following the execution of the deed, she told him that she had done a thing which had worried her a great deal, and that she hadn’t slept; and that she asked him what he thought about it; that she said, “I deeded my house away, and I haven’t a home, and I am just worried whether I did the right thing or not.” She made similar statements on the same day to other witnesses, and also stated, in explanation of having made the deed, that:

“May [appellee] said it was to save taxes,—the inheritance tax,-—-and she could attend to the business a good deal better if she would let her have the property in her name. ’ ’

In a letter to one of the appellants, written June 24, 1923, appellee Mary says:

“She [grantor] deeded the house and lot and contents to me. She asked Mr., Miller to write in the-deed that she did it because Paul made his home with me, and she wanted to do something for him.”

Before a solemn, written instrument, affecting the title to real estate, can be vacated on the ground of undue influence, it must appear that such influence was exerted as to overcome the will of the party executing the same. Mere importunity, suggestion, and advice are not sufficient. In tbe recent case of In re Will of Johnson, 201 Iowa 687, we said:

“ ‘To be “undue,” the influence must have been such as to destroy the free agency of the testatrix and make her the implement of her husband’s craft, and make the instrument executed by her the will of her husband, rather than her own. It must operate to destroy her free agency, not at some time in the past, but at the very time and in the very act of executing the instrument. Solicitations, however importunate, cannot themselves constitute undue influence; for, though these may have a restraining effect, in that they persuade or induce the mind.of the testatrix to consent to the thing asked for, they do not destroy her power to freely dispose of her estate.’ Henderson v. Jackson, 138 Iowa 326. See, also, In re Estate of Townsend, 128 Iowa 621; Mallow v. Walker, 115 Iowa 238; Sutherland State Bank v. Furgason, 192 Iowa 1295.”

The cause is triable do novo in this court, and we have examined the record with great care. The deed was not obtained hastily nor secretly. The grantor undoubtedly felt under obligations to the grantee, who was the only relative with her during any portion of her last illness. As she expressed it to others, she felt grateful to the grantee for her care of the grantee’s brother Paul, who is afflicted with blindness, and who had lived for some time at the home of the grantee. The fact of the giving of the deed was not concealed, and was promptly made known by the grantor to her physician and her immediate friends. The grant- or possessed other property, the exact value of which is not disclosed by the record; but it is obvious that she did not strip herself of her estate by the execution of the deed. She was not dependent upon the grantee for adrice in business matters, but attended to her own business affairs, and, even while suffering greatly from the malady that afflicted her, gave such care and attention to her business affairs as they required, and was particularly careful to.see that her ohligations were paid.

Viewing the case as a whole, we are confirmed in the opinion that the deed must be upheld as a verity, and that there is no sufficient evidence to justify annulling or canceling it. The instrument imports a consideration which is sufficient to support it, and which is not impeached.

The decree of the trial court was light, under the record in this case, and meets with our approval and acquiescence. It is, therefore, — Affirmed.

De Graee, C. J., and Stevens and Vermilion, JJ., concur.  