Decided October 18, 1910.
On Petition for Rehearing.
[111 Pac. 54.]
Mr. Justice McBridedelivered the opinion of the court.
2. We have again carefully gone over the testimony in this case in connection with the petition for rehearing. The deed was made when Wolf was in poor health, and it is evident that it was made at the instigation of the defendant. It was drawn by Mrs. Harris’ attorney, and without the grantor having taken independent advice. It was kept by Mrs. Harris without putting it on record, and the agreement to pay $1,000 to her sister was also kept by her, and never came to light until the hearing of this cause. Mrs. Loorya says she never heard of the agreement, and this testimony is practically uncontradicted. It is true that Mrs. Harris testifies that her husband told Mrs. Loorya of its existence, but admits that she did not hear him tell her, and Mr. Harris was not called as a witness. Wolf remained in possession and control of the property, treating it as his own, and expressed himself satisfied with the will he had previously made, which declaration would have been entirely inconsistent with his having parted with the bulk of the property mentioned therein. His remarks to the clerk and others in regard to having made a lease of the property indicate that he did not know the exact nature of the instrument which he had signed. These declarations, made while he was still in possession, were, we think, admissible, and, if they were not, the previous efforts of the defendant to acquire the property, to the exclusion of other heirs, when taken in connection with the evident weakness of Wolf’s mind, *279satisfy the court that his age and weakness were taken advantage of by the rapacity of the defendant, and that he did not know or realize that he made a conveyance. The fact that after he had made it he transacted some business, such as buying hides, is not sufficient to alter this conclusion. It was a business in which he had engaged in for many years and which he would naturally transact, almost automatically, and without any particular tax upon his mind or memory. We have no doubt that the counsel who prepared the deed read it over to him, and we do not question the fact that he believed that Wolf understood it. But considering the difficulty that Wolf labored under in understanding English, and the further fact that counsel himself was affected by imperfect hearing, we do not believe that Wolf knew at any time that he was absolutely conveying the whole of his real estate. The secrecy with which the transaction was conducted, the fact that, immediately upon being apprised of her father’s death, Mrs. Harris, not even waiting for his burial, had an agent at the clerk’s office before 8 o’clock the next morning to record the deed, the fact that Wolf, in conversations with his confidential friends, in regard to the disposition of his property, never alluded to having made a conveyance, and the whole conduct of defendant convinces us, as it did the lower court, that she took a fraudulent advantage of her father’s age and weakness of mind to secure this conveyance.
In our former opinion it was said inadvertently that the will was made subsequent to the deed. This was an erroneous statement, but it is disclosed in the testimony that, in conversations in reference to the disposition of his property held after the deed was made, he expressed his satisfaction with the will. The unnatural and unreasonable character of the transaction, taken in connection with the frequently expressed intention of the deceased to provide for other and more needy relatives, is a circum*280stance which in itself is some evidence that the deed was procured by fraud. It is evident that Mrs. Harris was in the most prosperous circumstances of any of the children of deceased. He had not infrequently expressed his intention to provide for the others, and no further to make her the recipient of his bounty. Mrs. Loorya especially was in indigent circumstances, and was not strong either in mind or body, and he had made a will providing fairly and properly for her and other indigent relatives, and it seems almost inconceivable that, in view of all the circumstances, he would deliberately and voluntarily change his settled purposes and make a disposition of his property so manifestly unfair and unjust. Referring to a will of a character similar to this conveyance, the Court of Appeals of Kentucky say:
“For such gross inequality no reason is suggested in the document itself or by the proof on the trial. The testator had an unquestionable power to make such a will. But its apparent unreasonableness requires satisfactory evidence that it was the free and deliberate offspring of a rational, self-poised, and clearly disposing mind. And all this has not in our opinion been shown by the testimony with sufficient assurance.” Harrel, etc. v. Harrel, etc., 62 Ky. 203.
3. Considering the relation of the parties, the frequently expressed intention of deceased to provide fairly for his other relatives, the fact that he had already made a will to effectuate that intention, the unreasonableness and injustice of the conveyance, the mental and physical weakness of deceased, and the secrecy observed concerning the transaction, the burden of proof was upon Mrs. Harris to establish by clear testimony that the deed in question was the voluntary act of deceased. This in our judgment she has wholly failed to do.
A rehearing is denied.
Affirmed: Rehearing Denied.