This is an appeal from a judgment of the circuit court of Andrew county. Appellants, plaintiffs below, are children and heirs of Henry Keesler, deceased, and his widow, Mary Keesler. Respondents, defendants below, are the widow and minor son of Lafayette Keesler, deceased, the latter having died about a year prior to the death of Ms father, the said Henry Keesler.
It is alleged in the petition that Henry Keesler, deceased, in his lifetime, was seized in fee of two tracts of land in Andrew county, Missouri, particularly described in the petition, one containing ninety-nine' acres and the other about nineteen acres; that said Henry Keesler resided upon and occupied said land as his homestead until he was committed to an insane asylum in the month of August, 1906; that on the 15th day of January, 1901, the said Henry Keesler and his wife, Mary Keesler, executed a paper purporting to *285convey to their son Lafayette Keesler all of the said described lands, being all of the real estate then owned by the said Henry Keesler; that at the time of the execution of the said paper the said Henry Keesler was of unsound mind and did not have sufficient mental capacity to make said pretended deed; that the said Lafayette Keesler, through fraud and undue influence and control over the mind of the said Henry Keesler, procured the execution of said pretended deed, without any consideration whatever; that on account of the facts alleged, the said pretended deed is fraudulent, null and void. The prayer of the petition is that the court render a judgment and decree setting aside and annulling the said pretended deed and declaring it to be null and void, and for general relief.
The answer is a general denial.
The case was tried at the November term, 1907. A large number of Avitnesses testified in behalf of the respective parties. Declarations of law were asked by the defendants and refused by the court. None were asked by the plaintiffs. The court took the case under advisement, and at the November term, 1908, rendered a decree in favor of plaintiffs as to the nineteen-acre tract described, on the ground that it was not intended to be conveyed and that it was included in the deed by mistake of the scrivener, but found in favor of the defendants as to the ninety-nine acre tract.
Plaintiffs appealed to this court.
At the time of the execution of the deed in controversy, to-wit, January 15, 1901, Henry Keesler and his wife, Mary Keesler, were living on their farm of 118 acres, near the town of Helena, in Andrew county. They were then near eighty years of age and had owned and lived on said farm about twenty years. They had nine children then living, three sons and six daughters. All of the children except Lafayette Keesler had left the home of their parents; some of them many *286years before. Lafayette Keesler was then about forty-seven years of age, and bad made bis borne with bis parents practically all of Ms life. He bad been away a few years at one time, but Ms parents urged Mm to return and make Ms borne with them, which be did. He bad married and built a bouse on Ms father’s farm, where he lived with his wife until she died without issue, four years before the execution of said deed. After the death of Ms wife he again made his home with his parents and was living with them, working and helping his father on the farm, at the time when the said deed was executed. He married a second time in August, 1902, and with his wife, the defendant, moved into and made his home in the bouse in which be had formerly resided with Ms first wife.
Henry Keesler had in former years helped Ms other children by giving them land or personal property, but he had not assisted any of them to the extent of the value of the land purported to have been conveyed by the said deed. Lafayette Keesler died in February, 1906, at the age of fifty-two years, leaving surviving him Ms widow, the defendant Lucy Keesler. The other defendant, Paul Lafayette Keesler, is a posthumous child, having been born several months after Ms father’s death. Henry Keesler was adjudged insane in the year 1906, and was placed in an insane asylum, where he died on the 11th day of January, 1907.
Both sides are in substantial agreement as to the foregoing facts.
The deed is attacked upon two separate grounds: First, want of mental capacity of the grantor, Henry Keesler, to make the deed; second, fraud and undue influence of the grantee in procuring the execution of the deed.
Appellants complain that the decree as to the ninety-nine acre tract is against the law and the evidence, and should be reversed.
*287The main ground of attack upon the deed at the trial was the want of mental capacity of the grantor, Henry Keesler. As to the issue of fraud, it may be safely asserted that there is an entire absence of any direct evidence in the record tending to prove fraud or undue influence on the part of Lafayette Keesler in the procurement of the deed. There 'are circumstances, it is true, such as the fact that he went for the scrivener to prepare the deed and take the acknowledgments thereto; that he went to two neighbors and requested them to come to his father’s house where they witnessed a will; that he lived under the same roof with his parents; circumstances which are frequently found in eases of fraud and duress in the procurement of a deed or a will. But it was shown by the uncontradicted testimony of the plaintiff, Mary Keesler, one of the grantors and a witness for plaintiffs, that when Henry Keesler became alarmed by reason of his ailment, the suggestion as to making a disposition of his property came from him, and the son Lafe, who was in the cellar sorting potatoes, was sent for and asked by his father to go for the scrivener. So far as this record discloses, if the father had died in that sickness, as he feared, without having made the deed in controversy, the son, then nearly fifty years of age, would have had nothing to show for his years of service for his parents. It was doubtless that fact that caused the father and mother to be concerned about making some disposition of the property in apprehension of death. In any event there is no evidence tending to prove that the son was the moving party in the transaction.
It is contended by appellants that the facts in evidence establish the existence of what is termed in law a confidential relation between the son and fa-' ther, and that because of said relation when the deed was made the law will presume that it was the result of fraud and undue influence and place the burden *288upon the grantee to rebut such presumption. That principle of law is well settled. [Kirschner v. Kirschner, 113 Mo. 290; Ennis v. Burnham, 159 Mo. 494.] However, under the facts of this case, we do not regard it as important whether the evidence is sufficient to raise the confidential relation as claimed by appellants, for even if respondents be held to carry the burden of showing that the instrument was not the product of undue influence, we think the evidence fully satisfies that requirement. We entertain no doubt as to the correctness of the chancellor’s conclusion on the issue of fraud.
There was much testimony and a sharp conflict upon the issue of want of mental capacity. There was substantial agreement among the witnesses that Henry Keesler’s mind was failing* in 1903 and that he continued to grow worse until adjudged insane. And there were many witnesses, relatives, neighbors and experts, who testified that at the time the deed was made the said Henry Keesler was so infirm and weak, in body and mind, that he did not know what he was doing or what the deed contained, when he made his mark thereto. On the other hand, there was opinion evidence of witnesses who were equally positive and equal in number, that he was not only capable of transacting business and conveying* his property, but they went further and testified that after he recovered from his ailment in 1901 he did in fact transact business for two or three years; that he went to town and paid his doctor bill, made purchases at the stores and paid for them, attended to his business at the banks in which accounts were kept in his name; that he sold hogs and cattle, refusing to sell unless he secured his price. In these transactions and business affairs those who dealt with him testified that he knew what he was doing and was capable of taking care- of his interests. In addition to the foregoing, when it is considered that the deed was placed on record within a few days *289after it was executed; that other members of the family came to visit their parents thereafter and that this deed was the subject of discussion; that thereafter the father paid taxes on the nineteen-acre tract, saying that was all the land he owned, and that he did not thereafter pay' taxes on or give in for assessment the ninety-nine-acre tract, it seems reasonable to conclude that he not only knew what he was doing when he sent for the scrivener and executed the deed, but that after he had recovered he was fully satisfied with what he had done.
The fact cannot be overlooked that when the deed was made, the son had been living with his parents and had worked fo,r them without remuneration until he was then past middle life. The relations between the son and the parents were completely congenial. This fact is shown by all the testimony. The mother, although asking the court to set aside the deed, testified that <£Lafe always did what his father wanted him to do, and I never knew of him trying to get anything away from his father.” Under these circumstances what more natural than that the father, fearing that he might not live, should convey the land to the son in whom he had entire confidence, evidently intending that their relations should continue as in the past, and as they did in fact continue for five or six years until the son’s death? At the time of making the deed it doubtless did not enter the minds of the parents that they, aged and feeble as they were, should outlive the son, but the fact that they did outlive him and that a situation developed which they did not contemplate, cannot be held to render invalid an instrument made in good faith and in accordance with the intention of the parties at the time. There can be no doubt that the parents, in making that deed, intended that they should be taken care of by the son and that they should have a home there as long as either should *290live. However, that was not made a condition in the instrument, and is not a question for determination in ■this court.
The presumption of law is that Henry Keesler, deceased, was mentally capable of executing the deed, and the burden of overcoming that presumption was •on the plaintiffs. We have read and carefully considered the long record of the testimony, and while there ■is a sharp conflict in the evidence upon the issue of •mental capacity, we think the finding of the court is fully sustained by the record.
Appellants complain of the decree in that it finds for the defendants as to the ninety-nine-acre tract, while finding for the plaintiffs as to the nineteen-acre tract. The defendants did not appeal, and as plain.tiffs cannot complain of the decree, in so far as it is in their favor, we are not disposed to review the finding of the court as to the nineteen-acre tract.
Appellants also complain of the action of the trial court in apportioning the costs between the plaintiffs and the defendants. But as this is a suit in equity and as the decree was partly in favor of plaintiffs and partly in favor of defendants, the taxation of the costs was in the discretion of the court. [Bender v. Zimmerman, 135 Mo. 53; Turner v. Johnson, 95 Mo. 431.]
For the reasons given the judgment is affirmed.
Ferriss, P. J., and Brown, J., concur.