This being a case of purely equitable cognizance, we are required to review the evidence and consider the same in order to determine whether or not the assignment of error presented by the plaintiffs, that the decree of the court below is contrary to the weight of the evidence, is well taken. From the evidence offered by the plaintiffs, if true, there can be no question that at gross fraud was perpetrated upon the dying Mrs. Oberlander, and her unsuspecting grandchildren. On the other hand if the evidence offered by the defendants be true, the grandchildren were guilty of ingratitude to the grandmother sufficient to have estranged themselves from her affections, and warrant her in depriving them of her property. The difficulty we have is in determining from the mass of the testimony upon which side lies the truth. The state of the evidence as to the mental capacity of Henrietta Oberlander at the time she executed the deed in controversy, if that were the sole fact to be considered, would not warrant us in holding that the decree of the court was contrary to the weight of the evidence. But the evidence as to her physical condition and her state of mind is to be considered in determining whether or not the execution of this deed was procured by fraud and undue influence.
We think that two facts stand out with distinctness from the mass of the record which go a good long way in determining this question. The defendants set out in their brief the evidence of Mrs. S.A. Crossman, a witness for the plaintiffs. This testimony is as follows:
"Q. Were you there at any time when the defendant S.B. Oberlander was there? A. One time and only one. Q. When was that? A. I think it was some time in August of the year she died. Q. Were you present in the room with him and her? A. Yes, sir. Q. Did you hear any statements made by him in her presence and to her? A. I heard a very severe conversation. Q. Describe what took place there; what was said by him and her and by you, if anything; describe that circumstance. A. Well, I didn't know that he was there, or I should not have gone, but I was at my daughter's, and I ran over to see her, and he sat there, and seemed to be a surprise to him, and he told her that she was not having the care she ought to have. She said, 'Oh, yes; they are taking as good care of me as *Page 38 they can;' he says, 'They are not, no such a thing; I would kick the Claytons out; I would not have them around me;' and she looked up at me — she was very feeble — and said, 'Mrs. Crossman, if you were here all the time, you would know what a terrible trial it is to take care of me,' and I told her I realized it; he said, 'You are too generous; you ought to kick the Claytons out and get somebody here to take care of you.' Q. Where were you? A. I sat right by her side and was holding her hand. Q. In what tone of voice did Mr. Oberlander speak when he was making these statements? A. Very gruff. Q. About how long was this before she died? A. I cannot tell you; I think it was some time in August. Q. Before she died in September? A. Yes, sir. Q. How long did you remain there? A. Well, not long; I started to go away and she held to my hand. He said, 'he had tried all summer to get to talk to her privately, but he never could, and now he was going to speak right out in meeting;' and I took that as a hint to go, but she hung to my hand and I sat there a few minutes, and I asked her if she had had the doctor today; she said, 'No; the doctor said there was no use of him coming any more.' He says, 'that is the way of it; you are not having any care at all;' she said, 'The doctors said they could not do me any good;' and he asked if she had any whisky. She said, 'No; I cannot take it, it goes to my heart,' and he said he would get her some and I afterwards heard he did."
We have carefully examined the testimony of S.B. Oberlander at the trial, and the occurring of this conversation is not denied by him, nor was he asked concerning it. The evidence of this witness, being undenied, persuades us that S.B. Oberlander was endeavoring to convince his sister that the Claytons were neglecting her and not giving her proper care, and that she had been too generous with them, and had done enough for them, and that she ought to cast them adrift. This shows the state of mind of one of the defendants towards the plaintiffs, and indicates to us that he thought the Claytons ought to be cut off, and that the time had come for him to say so. The other fact that stands out is the contract by Viola M. Curtis, hereinbefore set out. The evidence shows that this contract was drawn at the same time as the deed, and that they were executed practically contemporaneously, and that both were intrusted to the keeping of Viola Curtis. If it were not for this contract and the bit of evidence above quoted we would find great difficulty in persuading ourselves that the decree of the trial court was contrary to the weight of the evidence. In considering the weight this contract might to have in the determination of this case we must take into consideration the relative conditions of the parties to this transaction. Henrietta Oberlander had been helpless and confined to her bed or her chair for more than a year. Her relatives, friends, and acquaintances had given up all hope of her recovery and looked for her early death. On the other hand there is evidence tending to show, and our knowledge of human nature leads us to believe, that she had some hopes of recovery, and of continued life. Her illness had made great inroads upon her physical strength, and while it may not have resulted in such mental incapacity as to cause her to be unable to execute a contract, yet the evidence shows that it impaired her mental vigor.
In this view of the state of the contracting parties let us consider this contract. By the terms of it, Viola M. Curtis agreed to take care of her aunt in her sickness, furnish her with all medicines, and all the necessities of life, nurse and care for her, and in her absence to furnish a trusty and competent nurse and attendant; that she will settle all the claims and pay all the indebtedness which Henrietta Oberlander has contracted or may contract; that she will look after all the properties and possessions and take the best kind of care of the premises that may be left in her care, and render a just account of all her doings in the premises; in the event of her aunt's death she will cause a suitable burial of her remains, see that her grave is kept in proper order; that she will do the same things for Luetta Clayton, the deceased daughter of the said Henrietta Oberlander; that in the event said Henrietta Oberlander should recover her health and desire that whatever property remains in the hands of Viola M. Curtis shall be reconveyed to her, it is agreed that the same shall be done, after the payment in full of all the expenses that are now contracted or may be contracted in the future, then in that event whatever property may remain will by the said Viola M. Curtis be turned over to the said Henrietta Oberlander; that Viola M. Curtis shall be the sole judge of the charges to which she has been put without contradiction from any source. It will be remembered that at the time Viola Curtis executed this contract Henrietta Oberlander had conveyed all her property not to Viola Curtis, but to S.B. Oberlander and Viola Curtis, so that there was no property or possessions of Henrietta Oberlander for Viola M. Curtis to take charge of, manage, and account for. It will be noted this contract does not refer at all to the deed that day made by Henrietta Oberlander. S.B. Oberlander was not a party to this contract, and was not bound thereby. In the event Henrietta Oberlander had recovered she could not have enforced the reconveyance of this property by S.B. Oberlander, even if she had paid all expenses incurred by Viola M. Curtis, *Page 39 under the terms of said contract. There is no evidence as to the financial ability of Viola Curtis to carry out and perform the matters she had promised to perform. The evidence shows that the burial expenses of Henrietta Oberlander were paid, but it does not appear anywhere that other of her debts have ever been paid. In fact from the statements in the brief of defendants it appears that they have not been paid. It seems to us that this speciously drawn contract was placed as an inducement to Henrietta Oberlander for a conveyance of her property, that she hoped to recover, and that she had been led to believe by her brother that her grandchildren, the Claytons, had neglected her, and that at the hands of Viola Curtis she would receive proper care and attention. We are convinced that had Henrietta Oberlander lived and commenced action to cancel the conveyance made by her in consideration of the contract above quoted, she would have had no difficulty in having a cancellation decreed. This conveyance does not stand upon the footing of a gift for the reason that the grantor was led to believe that she was receiving something of value in return therefor, and that she might ultimately, if she so desired, reclaim her property. In that case when the respective situations and the relationship of the parties are taken into consideration, and when it appears that the purported consideration for the conveyance was illusory and sham, the conveyance cannot stand. Where there is a total failure or such gross inadequacy of consideration as to shock the conscience of the chancellor, a court of equity will give weight to slight circumstances tending to show fraud, undue influence, or oppression, in order to set aside a conveyance made under such circumstances. Hogan v. Leeper, 37 Okla. 655, 133 P. 190, 47 L. R. A. (N. S.) 475: In re Spann, 51 Okla. 309, 152 P. 68: Barker v. Wiseman, 51 Okla. 645, 151 P. 1047.
We think the learned court in the trial of this case did not give sufficient weight to the circumstances surrounding the execution of this deed and this contract. This contract, to our minds, robs the evidence of the defendants, as to the changed feelings of Henrietta Oberlander for her grandchildren and as to her love and affection for her brother and niece, of all its effect. This contract shows that the deed in controversy was not a gift made by Mrs. Oberlander to her brother and niece with the knowledge of impending death. It shows that it was made for a purported consideration with an expectation that she might recover, and might reclaim her property.
We therefore conclude that the weight of the evidence shows that the deed in controversy was procured by fraud and misrepresentation by parties of whom the utmost good faith and fair dealing were required. It should therefore have been set aside.
This cause should be reversed, with directions to the court below to cancel, set aside, and hold for naught the deed described in the petition of plaintiffs.
By the Court: It is so ordered.