dissenting. It is admitted that the property embraced in the papers which the plaintiff seeks to annul by the action below belonged to the plaintiff Nor is it denied that she had the legal right to execute said papers and thereby to convey said property to the defendant, if such was her will and desire. Nor is it denied or doubted that said papers were executed by her, and with all the formality necessary to make them valid, as to their mere execution. Such being the fact, all the presumptions are in their favor ; and being thus prima facie valid, they must stand until it is shown by satisfactory testimony either that the plaintiff was incompetent at the time of their execution, or that she was induced thereto by the fraud, artifice, or undue influence of the defendant. Has such a showing, one or both, been made, is the question in the case.
I have thoroughly and closely examined the testimony as reported, biased somewhat, it may be, in favor of the plaintiff, and yet I must say that, after analyzing and sifting said testimony fully, and excluding therefrom all hearsay and gossip, in which it abounds, it seems to me to be utterly destitute of the necessary facts to impeach the instruments in question upon either of the grounds mentioned. There is certainly no direct or positive evidence reported on the question of the plaintiff’s competency. No expert was examined, nor were there any facts testified to by other witnesses showing either general incapacity in the plaintiff or that she did not understand this particular transaction or the nature and character of the instruments which she executed. It is true she was quite old and feeble, and was not expected to live *15more than twenty-four hours, when the deed was executed. It is also true that she had to be lifted from bed and her hand had to be held and guided in affixing her signature thereto, but the evidence is silent as to the extent to which her mind and understanding had been impaired by her physical weakness and disease, and it will not do to say that old age and physical weakness merely are sufficient to disqualify one -from disposing of his property.
Besides this, it is in evidence that, some two weeks after 'the execution of the deed, she recognized its existence and made a second paper, the bill of sale of her personal property, in harmony with and in furtherance of the scheme upon which the deed had been previously executed, to wit, the comfortable support and maintenance of herself and husband during their lives, to secure which she took a bond and mortgage from the defendant covering the property conveyed to him. The papers were drawn by Mr. Child, an attorney of standing, by the direction of the plaintiff; Mr. Child testifying to these facts, and saying “that from what he heard and sarv, the plaintiff was as competent to transact her own business then as she is now.” In the face of this testimony, I ca-nnot see how it can be claimed that the plaintiff did not understand what she was doing.
It appears to me, too, that the testimony is destitute of facts impeaching the conduct of the defendant as to any improper agency in procuring these papers. He had no special control of the plaintiff. Nor does it appear that he exercised, or attempted to exert, any influence over her, either by threats, importunity, fraud, or imposition of any kind. It is true that Mr. Richey, who drew the deed, was carried to the house of plaintiff by the defendant. Why should he not have done so ? If the plaintiff had made up her mind to execute the deed in favor of defendant, and he Avas informed of that fact, it rvas more in accordance with the idea of fair dealing that he should have a suitable person to prepare the papers, openly and personally, than to stand in the background, Avorking entirely through others. True, too, that he had the deed properly recorded. What is there in this to excite suspicion ? The paper was of a character Avhich in law should have been recorded. Such being the fact, its record was *16in accordance with law, and just what most business men would have had done. The law requiring this deed to be recorded, if the defendant had withheld its record, that fact would have needed explanation, rather more than the fact of recording, and would have been much more damaging to the conduct and character of the defendant.
It is said that the bond and mortgage was not recorded. This, however, was explained by Mr. Child, and the defendant was in no way responsible for the non-record of these papers. Nor did this occur from any want of understanding in the plaintiff as to her rights thereunder. If any one is to blame for this, it was Mr. Child himself; certainly not the defendant. Upon the whole, I have not been able to find any direct testimony in the case either impeaching plaintiff’s mental capacity or showing that she was overreached by the circumvention, artifice, or undue influence of the defendant, or of any one in his behalf.
It is said, however, that while there is no direct evidence showing absolute incapacity in the plaintiff, nor imposition, perhaps, on the part of the defendant, yet wdien the age of the plaintiff is considered, and also her extreme feebleness, in connection with the remarkable character of the papers, transferring, as they did, her entire estate, real and personal, to the defendant, the infer-en cé, both of incapacity and imposition, is irresistible, and it is upon that ground that the papers should be declared void. The legal principle under which this is claimed is no doubt correct, and it is true that great mental weakness, yet short of absolute incapacity, may sometimes be a sufficient ground to invalidate instruments in which unconscientious bargains have been obtained, or where the inadequacy of consideration is so gross as to be explained in no other way, except from the imbecility of the grantor or the imposition of the grantee. But such cases are rare, and before this principle can be applied, the facts should be undoubted and overwhelming.
Now, can such an inference be drawn fairly from the facts of this case? What are those facts? The plaintiff at the date of the deed was an aged lady — nearly 83. She was sick, and thought to be near her end. Her husband was perhaps older than herself; he was certainly beyond “three score and ten.” *17They had no children. The plaintiff owned a small tract of land, I suppose about 125 acres, worth, it is said, upon valuation $20 per acre, or in the whole, $2,500, and some personalty, value not mentioned. These two aged people were living to themselves, the plaintiff’s only relations being a brother and perhaps some nieces, with whom it seems she had no association. They were alone in the world, in possession of the property mentioned and with no other means of support, so far as it appears. Now, it is manifest that this aged couple, sick and feeble as they were, could not have been able to make even a scanty support by their own labor on the land which the plaintiff owned. Nor could they have done so by hired labor under their supervision and direction. An attempt to do so, in either of these ways, would no doubt have soon resulted in crushing debt, and finally in starvation or the poor house. The relations of the plaintiff were not present, giving aid and comfort. They themselves were absolutely powerless to provide for their necessities in their declining years. What need had they for this little tract of land and their household personalty, but through it to obtain an easy and comfortable living during the years before them ?' They could not take it with them beyond the grave. They could only use it while they lived, and the relations of the plaintiff had no claim, upon them, or at least no such claim as demanded that they should not make all necessary use of it while they were alive for their comfort and support, even if this use required its entire destruction, leaving nothing to go to said relations.
Under these circumstances, the arrangement which the old lady made with the defendant, if fairly carried out by him, does not strike me as so remarkable and strange — certainly not so strange as to indicate irresistibly incapacity on her part, or imposition on the part of the defendant. She bargained for a comfortable and easy support both for herself and her husband during their respective lives, and she secured the enforcement of this obligation on the defendant by a mortgage of the land. True, she had refused to sell to the defendant a short time before this a small portion of this land at $50 per acre. In this she acted wisely, as she no doubt knew that the money received would soon go, while the land was permanent. The arrangement which this *18old lady made, when all the circumstances are duly considered, though somewhat unusual, certainly cannot be said to be devoid of sense or reason, and if it was faithfully carried out by the defendant, fully and honestly, in all probability would be the best for the plaintiff and her husband. The bond and mortgage afford the means to her of having such faithful enforcement to the full extent of the property.
That it should have been made with a stranger is not of itself sufficient to avoid it. In this country the owners of property have the right to make their own disposition thereof, and while it is more in accordance with nature that relations should be preferred to strangers, yet the courts have no right to control parties in this respect. There are often reasons, facts and motives beyond the reach of the court, sufficient to influence the party, or if even within its reach, yet beyond its legal power to set aside or suspend. If the arrangement which the plaintiff made had been made with her brother, under all the circumstances surrounding her, could its wisdom be fairly impeached ? Does the fact that it was made with a stranger to her in blood make it less wise — especially when she secured its enforcement so completely ?
For the reasons given above I am unable to concur in the opinion of the majority.
Judgment modified.