
    Witte, Admx., v. Witte et al.
    (No. 180207
    Decided October 22, 1969.)
    Probate Division, Common Pleas Court of Montgomery County.
    
      Messrs. Nolan, Wolff & Sprowl and Mr. Patrick J. Foley, for plaintiff.
    
      Messrs. Boesch & Boesch, for defendant Helen Esther Zimmerman.
    
      Mr. Edward M. Taylor, Jr., for other defendants.
   Ziegel, J.

(by assignment). In July 1965, decedent was living in her own home with her daughter and husband, the Bosticks. Some difficulty arose, the exact nature of which is not clear, with the result that on July 22, 1965 decedent left her own home and went to live with another daughter, Esther Zimmerman. Shortly thereafter she commenced an action in forcible entry and detainer against the Bosticks, and when she executed a will on August 10, 1965 she specifically omitted this daughter. Thereafter, except for a week’s hospitalization in July 1966, decedent lived continuously with the Zimmermans until September 20, 1966, when she entered a nursing home, where she died on October 18, 1966.

At the time she came to the Zimmermans decedent had two savings and loan accounts. On August 5, 1965, she closed out one of those in the amount of $6,232.81. The next day the check she received, indorsed by her and Esther Zimmerman, was deposited in another savings association and a new account in the amount of $6,000 was opened in the name of Esther Zimmerman alone, with Esther getting the balance of $232.81 in change. On October 1, 1965, decedent’s second savings and loan account, in the amount of $2712.29, was handled in the same manner as the first one, with a new account of $2,500 being opened in still another savings association in Esther’s name, with Esther receiving $212.29 in change. Thereafter Esther handled these accounts as her own.

On December 2, 1965, decedent completed the sale of her home property, and received a check for the net amount of $9,250.67. Later that evening this check, indorsed by decedent and Esther Zimmerman, was used to open another savings account for $8,000.00 in Esther’s name, with Esther receiving the change of $1,250.67.

Plaintiff in this action is the administrator with will annexed of decedent’s estate, and also another of decedent’s daughters. She seeks here a declaration as to the rights of the parties to the above described assets.

It is well accepted that a person of sound mind and not under any restraint has a right to make a gift of his property to whom he pleases, so long as such gift does not work a fraud upon or injury to his creditors or is not within the inhibition of some statutory law, even if by making a gift such person might render himself destitute. 26 Ohio Jurisprudence 2d, Gifts, Section 4, page 143. There is no question here but that decedent made a complete gift of the moneys indicated above to her daughter, Esther Zimmerman. She parted completely with control over these assets, so that from the time of the gifts legal title to the assets transferred rested completely in the hands of the donee, Esther Zimmerman, who thereafter exercised unimpaired dominion over them. Unless the evidence indicates that decedent’s donative intent was lacking because of mental incapacity, fraud, duress, or undue influence, so that equity ought to set the gift aside, or unless it caai be shown that decedent’s donative intent included only the transfer of the legal title of these assets to her daughter, Elizabeth Zimmerman, with the beneficial interest being retained in herself, so that equity might now declare a resulting trust, title to these funds in Esther Zimmerman must be confirmed.

The questions of fraud and duress may be disposed of summarily. Neither the pleadings nor the proof set forth any facts which could lead to such conclusions. As to her mental condition, there was some evidence that decedent may have been mentally incompetent at the time these purported gifts were made. A doctor who first saw her on September 13, 1966, testified that she had symptoms of chronic brain syndrome due to arteriosclerosis, and that this pathology must have started within the past two years. He, however, had no knowledge of her mental condition, in 1965, his opinion being based on assumption. The same was true of the testimony of an attendant at the nursing home. This speculative evidence was more than overbalanced by the testimony of reliable persons who actually knew and visited with her during 1965, so that the court concludes that at the time decedent gave certain sums and checks to her daughter, Esther Zimmerman, she was of sound mind. Likewise there was no evidence upon which the court might establish a resulting trust.

As to whether a person was induced to make gifts as a result of undue influence, however, may sometimes be presumed from circumstances, and one of such circumstances is the existence of a confidential or fiduciary relationship between the donor and donee. 26 Ohio Jurisprudence 2d, Gifts, Section 39, page 191. “When a gift is made between parties occupying a fiduciary, confidential, or defendant relationship, a presumption arises which af-feets the going forward with the proof.” See also 18 Ohio Jurisprudence 2d 509, par. 30. La the case at bar the evidence revealed that, though decedent’s mind was sound, she was physically infirm, could not have taken care of herself, and needed the regular attention of her daughter with whom she lived. See In re Estate of Svab, 11 Ohio St. 2d 182. In such a case any transaction between the dependent and caretaker is looked upon with suspicion, so that the donee must then show that no artifice was practiced. Federman v. Stanwyck, 63 Ohio Law Abs. 178.

That one person may have some influence on the actions of another is not sufficient to void a transaction between them. The influence must be “undue.” Boyer v. Boyer, 14 Ohio C. C. (N. S.) 305. Undue influence cannot be based on mere opportunity for its exercise. Beebe v. Willey, 26 Ohio Law Rep. 452. Love itself is a form of influence, as are family relationship, friendship, and a desire to recognize kindnesses and valued assistance, but none would contend a transaction between parties based on these motives is void. Undue influence is not presumed from mere relationship. Hardy v. Van Harlingen, 7 Ohio St. 208, 216. While the burden of going forward in such a case is on the donee, the ultimate burden of proof is still with the party attacking the completed gift, and it has been held that in order to have a gift set aside on the ground of undue influence the evidence must be clear and convincing. Willis v. Baker, 75 Ohio St. 291.

In the case at bar, except for the presumption, there was no testimony which in any way indicated that Esther Zimmerman had exercised any undue influence whatsoever upon her mother whereby she became the recipient of generous gifts. Influence her she undoubtedly did — by her tender, loving care and by being at her beck and call over the months that decedent was with her. On the other hand, there was no testimony that after decedent came to live with her daughter, Esther Zimmerman, the other daughters showed any interest in their mother. No one mentioned any visits by them, either while decedent was at the Zimmerman home or when she was in the nursing home. After decedent’s death, Mr. Zimmerman testified he paid the rest of her bills. From the testimony this court heard, in making these substantial gifts to the one daughter who was furnishing her with comfortable and considerate care decedent was reacting quite normally. Her free agency was quite intact during the periods in which she made the gifts in question. Undue influence certainly cannot be based on mere gratitude, affection, or esteem.

In accordance with the prayer of plaintiff’s petition it will be duly declared that the estate of Eleanora C. Krimm, deceased, has no interest in any of the funds given by the decedent to her daughter, Esther (or Helen Esther) Zimmerman.

Judgment accordingly.  