I agree with Judge Boylan, who saw and heard the witnesses, that this is a case of confidential relations and defendants have the burden of proof of the fairness of the transactions with plaintiff. The opportunity to see and hear the witnesses is important not only because much of the opposing testimony is flatly contradictory, but also because father and daughter are both unusual personalities and can be better understood (if at all) after seeing and hearing them. In May they entered into a written agreement reciting that plaintiff, "having * * * arrived at an advanced age and being physically incapacitated, desires to live with [defendants] in their home, where he can be comfortable the remainder of his life" and to that end has made conveyances to them to compensate them for furnishing a home and for their covenants, and they covenant and agree "that he may live in their home during the remainder of his life, and during all that time they will furnish him a comfortable home [with or without food?] with them" or the survivor. Three days later the properties were reconveyed and the agreement thereby terminated. The daughter paid the lawyer for the preparation and recording of the deeds. He thinks plaintiff paid him for recording the September deed. The September deed was accompanied by no written instrument showing any actual consideration whatever for it. Plaintiff had no independent advice about it; the lawyer acted as a mere scrivener, not as an adviser. Between May and September plaintiff and his wife had both been in the hospital, he had been *Page 602 operated on twice and she was evidently dying of cancer. Though the record shows little or no feeling on his part toward her, he was from his own selfish point of view left helpless by her illness and approaching death. He had only his daughter to turn to.
The fact that an old man is "coarse, uncouth and unfeeling" and "difficult to get along with" and "wants to have his own way at all times" and calls his daughter vile names, may be good reason for her to refuse to live with him, but she has the right to refuse without any reason, good or bad. Such conduct does not show him "to be a man of vigorous and determined personality"; it only shows infirmity of temper, and perhaps of character, not uncommon in either first or second childhood. It does not justify a daughter in taking advantage of him. King Lear was a querulous old man but has not, on that account, been regarded as fair game for his daughters. I therefore agree with Judge Boylan that a deed without actual consideration from plaintiff to defendants could not stand. It is hardly necessary to add that plaintiff's second marriage at 76 does not necessarily evidence any strength or independence of personality.
This court, however, finds that there was some oral agreement between the parties, which provides for a home for appellant and is enforceable, though the exact terms of the agreement are not found. On this basis I think the agreement would be a fair one and a fair consideration for the September deed. I agree that if this agreement should be broken, breach would warrant enforcement of the agreement but not striking it down, including the deed. On this ground alone I concur in the result. *Page 603