I am not in accord with the opinion of Mr. Justice POTTER.
The bill was filed by a son and daughter of Augusta Kromm, now deceased, to set aside transfers of property by their mother to her granddaughter. Defendant is the illegitimate daughter of plaintiff Martha Smith, and was taken by Mrs. Smith's father and mother when she was five years of age, brought up as their own child, and not informed to the contrary until about the time of her marriage. For upwards of 30 years she lived with, or in a part of the same house with, her grandparents and before marriage served them as their child, and after marriage lived at hand to lend them comfort and help. Plaintiffs, after the death of their father, paid little attention to their mother. It is true that in one place in her testimony Mrs. Smith said the defendant prevented her from seeing her mother, but later she corrected this as follows:
"Q. You just told your lawyer that Mrs. Kups told you that she did not want to let you in; you wish to correct it?
*Page 28"A. Yes.
"Q. You also told him that every time you went there you got in without trouble?
"A. When my father was living.
"Q. After your father was dead did anybody tell you to keep out?
"A. No.
"Q. You went in?
"A. Yes. As long as Mrs. Kups was on good terms, if not I never went over there.
"Q. You had never been kept out as long as you and Mrs. Kups were on good terms and as long as you were not on good terms you thought the best thing for you to do was not to go there at all?
"A. Yes."
The son disclosed by his testimony that he made no serious effort to visit his mother during the last months of her life, and upon this we quote the following from his testimony:
"After my mother left my house after staying there three days, I did not see her until she died or until she was ready to die. I went over three or four or five different times and they said she was asleep. The other reason I did not see her was that the dog was in the house barking at me, and I turned around and went back. I could not get in the house at all. My mother lived with us then three or four days shortly after my father died. From the first of November until my mother died the following March I tried to see her four or five times.
"Q. You say you were not able to see her at her home? Mrs. Kups would not let you into the house at all?
"A. She said she was asleep one time and the other times there was nobody home and the dogs would bark at me and that is all I know."
This old mother had little occasion to save her small property for her son and daughter, and every reason for giving the same to the grandchild she had raised from a baby, and who had remained at *Page 29 her side and administered to her needs for many years and up to the time of her death. This old woman was nearly blind, she could not read, was deaf, weakened by rheumatism, had lost her partner a few months before, was grateful for the care given her by her granddaughter and solicitous about having the same continued, and anxious that the granddaughter should have the property and such was clearly the reason for making the transfers. This is not an instance of a stranger moving into the home of an old person and by undue influence or wiles supplanting natural objects of an old woman's bounty, but the case of a granddaughter brought up by the grantor and who continued to live in a part of the same house and care for her grandmother until her death, while one of the natural objects of her bounty did not go near her while at "outs" with her own child, the granddaughter, and the other natural object of bounty called once when his mother was sleeping and later was dissuaded from entering by dog barks. If he had been a frequent visitor, even the dog would have recognized and welcomed him. It is inferred that the defendant put the idea in her grandmother's head that plaintiffs were trying to have her adjudged insane. The idea had sufficient foundation to have been self-engendered. After the death of her father, plaintiff Smith employed an attorney and filed a petition in the probate court asking for the appointment of a guardian for her mother on the ground that she was mentally incompetent. This, of course, by way of citation, came to the mother's knowledge, and it is not strange that she thought her children were trying to have her found insane. The petition was dismissed, but whether voluntarily or not is left in doubt.
This old woman was not mentally incompetent, and the circuit judge so found. The circuit judge *Page 30 could see no occasion except that of undue influence in the grantor passing her children in favor of her grandchild. I have attempted to point out the reasons why the grandmother wanted the granddaughter to have her property.
It is said that defendant destroyed, by burning, a will of her grandfather and drew another and had him execute it. She did burn a paper drawn many years ago for her grandfather at his dictation, but it was not signed by him and later he made a will which has been admitted to probate. If the old "will" was signed, it was revoked by the later one and a worthless piece of paper. The will of the grandfather is not in the record, but it appears from testimony that the grandmother was given all of the property and defendant was designated as executrix, although not so appointed by the court. The grandmother was given fair notice of the attitude of the plaintiffs toward defendant by way of their objection to having her appointed executrix of the grandfather's estate and their efforts to have their own mother placed under guardianship, and with this in mind she probably thought best to forestall a contest over her estate by passing it during her lifetime to her granddaughter.
It is said: "She (defendant) prevailed upon Augusta Kromm, who had been living with the plaintiff Heyer, to go home with her, to the home that Augusta Kromm and her husband Adolph Kromm had owned during his lifetime." We quote the testimony of the Heyers on this subject. Mrs. Heyer, wife of plaintiff Heyer, testified:
"After Mr. Kromm died Mrs. Kromm came to my place. Mrs. Kups sent her over the night before Mr. Kromm's will was probated, and she stayed with us until the following week on Monday and then she got a bad spell and lay down and cried and got up *Page 31 and was worried and she said she wished she had not laid down, because she had a bad dream and then she wanted to go back to Mrs. Kups, and we took her back in the evening after six o'clock and then my husband went over again and they made an arrangement that Mrs. Kromm would stay with Mrs. Kups. More than that I cannot say."
Plaintiff Heyer testified:
"My mother gave as her reason for leaving our house and going back to Mrs. Kups, was that she was more acquainted in her room, she could find herself better than in our rooms. She said I feel more like home in my own room and she thought she had better live in her own house.
"Q. And she figured for those reasons that she would go back to Ida?
"A. She wanted to live in her own house."
It is true that the attorney who drew the deeds was not called as a witness, but the reason why he was not called appears in the record. He was sick and instead of taking his deposition, counsel agreed upon what he would testify if a witness.
The circuit judge found undue influence exercised by defendant. We quote from his opinion:
"Mrs. Kups had the opportunity for sometime to exercise her influence upon this elderly lady, who, by reason of her age and condition, was more susceptible to influence than she would have been otherwise.
"I am inclined to think from the fact that shortly after the proceedings were taken that this transfer of $1,500 was made from the account of Mrs. Kromm to the individual account of Mrs. Kups without any consideration whatever, that this is indicative of the fact that there was some personal influence being exercised upon the mind of Mrs. Kromm to cause her to proceed and turn over the property, not only the personal property, but the real estate, to the same party, and without any consideration, as a matter of *Page 32 fact, further than a matter of services, and there is not any proof of that sufficient to justify the turning over of this property on that theory.
"So, I am inclined to take this view of it; that this property should go to the person entitled to the natural bounty of Mrs. Kromm, and to that end the deeds should be set aside, and the estate of Augusta Kromm placed in probate, where Mrs. Kups, if she has any legitimate claim for services, can file her claim in the probate court, and if she can substantiate it, have it allowed, and in that connection I think whatever moneys have been turned over should be accounted for to the administrator of the estate.
"That will justify everybody in getting just what they are entitled to."
Love and affection, care extended, and services rendered by a granddaughter may justly appeal to the bounty of the grandmother, but there is no law under which the granddaughter can have compensation therefor in any court in the absence of a mercenary contract. Mrs. Kromm had an undoubted right to give her property, real and personal, to her granddaughter with or without any money consideration. Mrs. Kromm was mentally competent. She wanted defendant to have her property and gave it to her expecting to be cared for by the granddaughter during her lifetime. The granddaughter cared for her. There is no evidence justifying a finding of undue influence exercised by defendant. It is idle to say that defendant had opportunity to exercise undue influence. Of course she had opportunity the same as any grandchild brought up and living with a grandparent.
I think the decree should be reversed and the bill dismissed, with costs to defendant.
*Page 33SHARPE and NORTH, JJ., concurred with WIEST, C.J.