delivered the opinion of the court:
The principal questions in this case are questions of fact. At the time of the death of Maria Schroeder the notes and mortgage in question were in possession of her husband, Herman Schroeder, properly endorsed and assigned to him. The presumption arises therefrom that he was the legal and equitable owner of the property. For the purpose of overcoming this presumption the appellants sought first to show the existence of an express trust, by the terms of -which the husband, upon the death of his wife, was to transfer this property to her executor, to be disposed of in accordance with the terms of her last will. On June n, 1901, four days before the execution of the assignment and endorsements, she executed the instrument bearing that date which is set out in the foregoing statement of facts, and her attorney attached it to her last will and testament, which was in his possession for safe keeping. No citation of authority is necessary to support the proposition that the execution of this instrument could not in anywise affect the rights of Herman Schroeder unless notice thereof was brought to him at some time prior to the death of his wife. The only thing in this record that could possibly be regarded as an indication that he had any knowledge, before her death, that she had signed this document, results from the fact that he kept a diary, in which, under the date of June xo, 1901, in his handwriting, appear these words: “Mama made testament to America.” The instrument in question was not executed until June 11. It is contended by appellants, however, that an inspection of the entries in the diary under the date line of June 10 and under that of June 11 shows that this entry, although dated June 10, was in fact made on June 11. It will be observed that the language quoted is the recital of a past event. Some years prior thereto Dr. and Mrs. Schroeder had each made a will devising and bequeathing all the property owned by him or her to the other. Thereafter the wife on various occasions made wills making other disposition of her property and in each instance giving to America a substantial interest therein. This recital in the diary may as well have referred to the execution of such a will providing for America as to the execution of the so-called declaration of trust. At any rate, it does not appear that the language in the diary had reference to the document of June 11, 1901. The only other evidence which it is claimed shows the existence of an express trust is proof of statements made by Mrs. Schroeder, not in the presence of her husband and not a part of the transaction by which she transferred to him the mortgage and notes in question. Such statements were in'cotnpetent. There is in this record no competent evidence which fairly tends to show the existence of the express trust averred.
It is then contended that Herman Schroeder was a trustee ex maleficio; that he in fact held the property in trust for his wife, and such being the case it would pass under her will. Reliance is placed upon the presumption arising from the existence of fiduciary relations where a gift of property is made by the dependent to the dominant party, and it is contended that the existence of the relation of husband and wife in this case casts upon Dr. Schroeder’s executor the burden of proving that the property was conveyed to his testate without the exercise of any undue influence by the husband affecting the volition of the wife. Wherever husband and wife reside together under the ordinary conditions of marriage, confidential relations necessarily exist between them; but in this day of the better education of woman, when she and her property have been very largely emancipated from the control of the husband, it cannot be said, as a matter of law, that he is the dominant and she is the dependent party. Whether or not that be true is a question of fact. Generally the wife is the intellectual equal of the husband, and not infrequently she is his superior. Often she has a business training that fits her to care for property better than he can care for it. Mrs. Schroeder was a woman who was nicely educated. She was refined and of a higher degree of intelligence than her husband. She came of a class which in the land of their nativity was denominated the nobility. Under the laws of that country she rightfully bore the title of baroness. He, on the contrary, sprang from what is there termed plebeian stock. He was always very proud of his wife and very proud of the fact that she had elected to marry him. It is evident from the proof in this record that each had a warm and sincere affection for the other. He, unfortunately, possessed a violent and ungovernable temper and its outbreaks occasioned the difficulties that arose between them. At the time of the separate maintenance proceeding she secured the transfer to herself, in her individual right, of property-sufficient in value and extent to support her independently. Thereafter she employed her own attorney and her own agent and carried on her own business affairs separately and without consulting with her husband.
If, however, it be conceded that a fiduciary relation existed between them and that he was the dominant party, and if it be further conceded that the presumption upon which appellants rely obtains, the question arises, has appellee shown, by a preponderance of evidence, the absence of fraud and undue influence? The assignment and the endorsements, by virtue of which appellee claims, were made four days after the execution of the instrument under which the appellants claim. During the intervening period Mrs. Schroeder had been staying with her husband in his apartments. On the day upon which the property was transferred to the husband, August Boeker, a real estate agent in the city of Bloomington, who had frequently acted for the husband and who had acted for the wife in effecting the sale of the farm to Struve, was summoned to the apartments by telephone. Whether' the communication came from the husband or wife does not appear. Boeker is the only witness as to what occurred there and as to what was said by the husband and the wife. From his testimony it is clear that upon his arrival the wife was the active factor in the transaction. She knew what she wanted done and proceeded to have it done without suggestion or assistance from her husband. The notes and mortgage were then in her possession. She at once acquainted Boeker with the events which apparently had completely destroyed her faith in her daughter’s financial rectitude, and told him, in substance, that she had determined to transfer the property in question to her husband, and that her husband was to pay a promissory note or notes which she had signed and was to supply her with all the money that she needed so long as she lived, and to this arrangement Herman Schroeder indicated his assent. Boeker went to his office and drew the assignment of the mortgage and returned to the apartments, where she attached her signature to the assignment, and Boeker, being a notary, took her acknowledgment. In the certificate of acknowledgment it is recited that she acknowledged the execution of the assignment “to be her voluntary act and deed.” After the. signing, she personally, in the presence of the notary, delivered the notes, mortgage and assignment to her husband.
Charles Park, a physician, attended Mrs. Schroeder after she was in the St. Joseph Hospital, in June, 1901. After the execution of the assignment of the mortgage and the endorsement of the notes she told him what the daughter, America, had done, and then stated that she (Mrs. Schroeder) had given up all she had left to the doctor, (meaning her husband,) trusting him to do what he thought was right; that she had lost confidence in her daughter, America, and for that reason had turned over all she had to her husband; that this was the best she could do under the circumstances. Proof of other similar statements made by Mrs. Schroeder appears.
After the will of the wife had been admitted to probate a suit in trover was brought by her representative against Dr. Schroeder to recover the value of these notes. That suit was pending for some years, and was on March 30, 1905, dismissed. On the next day he paid to the daughter, America, $1000 in full settlement of all claims that she had against him on account of any property which belonged to the mother during her lifetime, particularly specifying the Struve notes, the purpose, as recited, being to transfer to the father all property to which the daughter might be entitled under the will of the mother. This is regardéd by appellants as a clear admission by Dr. Schroeder that he did not have the absolute title to the notes in question. He was at the time quite ill and died about a week later. America’s importunities were no doubt constant and wearing. He possessed the right to buy his peace if he saw fit, and the fact that he made a compromise with the daughter is not controlling in this suit brought by his grandchildren.
Proof was offered in reference to Mrs. Schroeder’s mental condition, and while it is apparent that her mind was not as strong as formerly, that is readily accounted for by her prolonged illness. It cannot be reasonably contended upon this record that she lacked mental capacity to understand the ordinary business transactions of life at the time of the event out of which this litigation grows.
It is also contended by appellants that the property was transferred to Dr. Schroeder as the result of a form of duress, consequent upon the fact that the wife stood in great fear of him, and that she made the transfer of the property to him for the purpose of pacifying him and preventing a wrong of some kind being visited upon her by him. No presumption aids this contention, and the evidence does not warrant the conclusion that she was so led or induced to convey the property to him.'
We aré satisfied that the preponderance of the evidence in this record warrants the conclusion that Mrs. Schroeder, feeling a just resentment toward her daughter, acting independently and of her own volition, fearing that she would not live long, transferred the absolute title to this property to her husband without fraud or undue influence on his part, trusting in him to make proper provision for their descendants, precisely as she had trusted him at the time she entered into the arrangement by which each executed a will leaving his or her property to the other.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.