(dissenting). I cannot concur with the conclusion reached by my Brother McGrath. The proof fails to establish a case of mental incompetency on the part of complainant to execute the deed. The record is equally barren of any evidence establishing any false or fraudulent representations made by defendant to her as an inducement to execute it.
If the deed was read and explained to her at the time of its execution, she cannot now be heard to say that it is different from what she then understood, or that its effect is otherwise than she supposed. She had both executed and received deeds before, and there is no doubt but that she fully understood their form and effect. The provisions of this deed are of the simplest character. It conveyed the fee to him, but retained a life-estate to her, with the entire use and control of the land during her life. She testified that she had always intended that this land should go to her brother, and she frequently so stated to others. He had befriended and aided, by advice anc| *571otherwise, both her and her first husband. He had counseled and advised her since his death, and it is not shown that In a single instance his counsel was unwise, or was prompted by selfish motives. During a long life there had been nothing to mar their intimate and friendly relations until after the execution of this deed. It was natural that she should seek his counsel and advice after the death of her husband, and equally natural that he should' give it. She and her second husband, Smith, had had serious trouble, and separated, and had not become reconciled when the deed was made. She had before that learned that upon her death Smith would inherit one-half of the land, if she should die seised of it. It was therefore entirely natural that she should execute the deed in accordance with her previously declared intention.
In reply to a leading question from her counsel she said that defendant asked her for a deed.
“Q. To keep Smith off?
“A. To keep him off the farm. Well, I supposed that was all it was going to amount to!”
This is all the representation or inducement to which she testified.
Her marriage with Smith had proved unfortunate. They had quarreled, drawn up • articles of separation, she had given him some money, and he had gone to his own children, in the state of Washington. In these troubles defendant had taken no part, except as he was requested to by either complainant or her husband. After Smith’s return, defendant acted in her interest, and all he did was prompted by a sole desire to properly guard her rights.
Complainant, after some evasion, admitted that the deed was read over to her by the scrivener who drew it. She does not deny that he explained it to her. The scrivener, a man of excellent character, testified that he read the deed to her before she executed it, and explained it to *572her, telling her that she would have the entire use and control of the land, and that at her death it would belong to her brother.
This land, constituting a farm of 160 acres, had been her homestead since she was married to her first husband. She had no intention of selling it, but intended to keep it as long as she lived. She occupied a portion of the house, and rented the rest to her tenant who worked the farm. The farm and what money she had furnished her a comfortable living. 'She had no children, and, aside from Smith, the defendant was her sole heir. Under these circumstances, there was nothing unnatural in this disposition of her property. This is, therefore, not a case where the grantee must assume the burden of showing competency and absence of undue influence. There was no relation of. trustee and cestui que trust.
Admitting all the evidence on her part to be true, and it has no tendency to sustain the claim of undue influence. In order to establish a case of undue influence, there must be a wrong-doer to be resisted, and one incapable of resisting and understanding and protecting his interests. Latham v. Udell, 38 Mich. 238, 241. It was there said:
“We do not know of any rule of law or of morals which makes it unlawful or improper for a wife to use her wifely influence for her own benefit or for that of others, unless she acts fraudulently, or extorts benefits from her husband when he is not in a condition to exercise his faculties as a free agent.”
This language is applicable to the present case. A brother is justified, both in law and in morals, to influence a sister whom he has aided, as in this case, to make provision by which at her death he may receive the property. Complainant, at the time of making the deed, was under no moral obligation to Smith, with whom she was not then on friendly terms. It is unnecessary to determine what influence operated to suddenly'embitter her .mind *573against her brother. She said to the scrivener that she could trust her brother. This statement was prompted by-long experience, and the defendant has since done nothing to show that her confidence was misplaced.
The decree should be affrmed, with costs.