OPINION ON MERITS This action was brought by appellant to set aside certain deeds made by one Albert H. Ward on the grounds of undue influence and unsoundness of mind. The trial court sustained a motion for judgment for appellees at the close of appellant's evidence and the correctness of this ruling is the sole question presented on appeal.
We have examined the record with care and we are unable to discover any evidence of either undue influence or unsoundness of mind.
The test of the capacity to make a deed is that the grantor shall have sufficient mind and memory to comprehend the nature and extent of his act and to understand the nature of the 3. business in which he is engaged, and to exercise his own will with reference thereto. Deckard v. Kleindorfer (1940), 108 Ind. App. 485, 29 N.E.2d 997.
There is no evidence of such incapacity. Several lay witnesses testified that in their opinion the grantor herein was of unsound mind. But the opinion of non-expert witnesses that a person 4. is of unsound mind can have no greater weight than the facts upon which such opinion is based. Daugherty v.Daugherty (1945), 115 Ind. App. 253, 57 N.E.2d 599.
In the instant case these opinions were based upon *Page 521 such unsubstantial facts as that the grantor talked loudly and cursed about politics, money matters and his family, that 5. he was unkempt and dirty, that he said upon occasions that he had become lost, and that he occasionally rambled in his conversations from one subject to another.
The grantor was 83 years of age, had dropsy and was suffering from some of the infirmities of old age. But a person is not incapacitated to make and execute a deed merely because 6, 7. of advanced years or by reason of physical infirmities unless such age and the infirmities resulting therefrom impair such person's mental faculties until he is unable to properly, intelligently and fairly protect and preserve his property rights. Deckard v. Kleindorfer, supra.
We think the action of the trial court was entirely justified by the evidence.
Judgment affirmed.
NOTE. — Reported in 65 N.E.2d 644.