(dissenting) :
I think the decision of this case clearly wrong, if former decisions by this Court of similar cases are to have any weight as precedents. I think the evidence in the case of Teter v. Teter, 59 W. Va. 449, and Black v. Post, 67 W. Va. 253, and others I might name, make much stronger cases against the validity of the deeds thereby assailed than appellants have made in the present case, and yet, in those cases, this court held that the evidence was not sufficient to overthrow the deeds.
The law presumes the grantor was competent, and that his deed was made without undue influence or fraud, and imposes the burden upon plaintiffs', who have assailed it, to overcome those presumptions by proof. I do not think the proof, in the present case, is sufficient to overcome either of the presumptions. On the question of competency, I think the testimony of Mr. Hinch-man himself, taken to be read as evidence in the suit then pending against his son, George, and the testimony of persons who had dealings with Mr. Hinchman, not very remote from the time the deed in question was made, is the most valuable evidence in the case on that point. True, Mr. Hinchman was enfeebled by disease and age, and at times was forgetful. Loss of memory is common to old age. But I cannot doubt that he then well knew the property which he was conveying, and the persons to whom he was conveying it, and also knew the legal effect of his deed. That knowledge is sufficient to satisfy the legal requirement as to capacity. That he was physically weak, does not prove that his mind was so impaired that he did not know what he was doing. A sample of his own testimony, taken in March 1905, about two months before the deed in controversy was made, will best illustrate the state of the old gentleman’s mind at that time: *399“Q. State your age, residence and occupation? Ans. I was 87 years old the 4th day of last January, Logan County,: West Virginia. My occupation now is sitting' around the fire. Q. Are you the plaintiff in this suit? Ans. Yes sir. Q. How many children have you living? Ans. Four. Q. How many dead that have living heirs? Ans. Two. Q. What relation are you to the defendant? Ans. I am sorry to tell you that I am his father.-”
He had been a man of more than ordinary mind, he had served as clerk of the court of his county for a number of years, and had represented his county in the state legislature, and, not more than four or five years before his death, he served as secretary to the board of education of his school district. Mr. Curry, the assessor, visited him on the 9th or 10th of April, only five or six weeks before the deed was made, and he states that Mr. ITineh-man gave him a list of his property on that occasion. Millard Stafford, his grandson, and Millard’s wife, were living with him at the time. They both testified as plaintiffs’ witnesses, and their testimony, I think, proves his capacity, beyond question. None of the witnesses were experts, and their mere opinions concerning his capacity are of little value. The witnesses who have given opinions as to his competency are about equal in number, pro and con. The state of the old man’s mind can be best judged by what he said and did, at the time, and near the time, when the deed was executed. Millard Stafford and his wife had been living with him about six months, and Millard says that his sons, Joe and George, came to see their father on Sunday, the day before the deed was executed; that Joseph told witness that he and George wanted to have a talle with their father about the suit which he then had against George, and which Joseph was seeking to have settled; that he had better take his wife and go over to Huse Ellis’; that he and his wife did go to Ellis’, and returned that evening about four o’clock and found Joe and George still there. But before Millard and his wife left the house, the old gentleman was seized with a severe pain, and Millard and George helped him to bed. He was suffering with arteriosclerosis which, at times, would give him violent pain, and, after the pain would pass off, he would then be able to be up, and go about the house, and it would be sometime before an*400other attack. True, Millard Stafford gives it, as his opinion, that the old man was not capable oí making a deed. But the following facts, and conversations with him, related by Millard as having taken place on the day before, and on the same day on which the. deed was made, are worth more to prove competency than the mere opinions of all the witnesses who have testified in the case. They are facts which are like figures, and from such facts the court can reach its own conclusion. He says: “grandpap was sitting at the kitchen window, and he said he didn’t believe that George was going to do what he promised to do, and that he was going back on him. I asked him what he promised to do, and he said T made a proposition to him yesterday evening, and it was for him to deed me back the land as it was, and George took me up on the first proposition/ ” Stafford further says, that at noon, on the following day, the old man told him “that George had done what he promised to do and that he had deeded his land back to him and taken the deed to be put on record for him/’ Continuing, this witness also says that, on the same day, and only a short while after the foregoing statement was made to him by his grandfather, he went down to his uncle Joe’s, and his uncle Joe told him how the matter had been fixed up, and that was altogether* different from what his grandfather had told him. Now, if Stafford’s evidence proves anything, it proves that the old man was capable of making his son George some kind of a proposition respecting the settlement of the pending law suit between them. Moreover, it proves that he was capable of recollecting it on the next day after it was made. Does not that prove capacity? I think it does. I will again refer to this bit of testimony, a little later on, in relation to its bearing on the question of fraud and undue influence. Can anyone for an instant, believe that was the whole of the understanding or agreement between George and his father ? Certainly not, it is altogether unilateral. But it is very reasonable to believe that it was all of it that was told to Stafford. The old man had reason to keep the part which he was to perform to himself.
Helen Stafford, Millard’s wife, says that, at times, the old man “seemed that he wasn’t exactly right in his mind.” She also says, that on the day before the deed was made he was not well, “but on that day (May 29, 1905) he seemed pretty pert” Now, taking'the testimony of these two witnesses together, it proves *401that, on May 28th, the day on which he was seized with severe pains, and therefore less capable of transacting business than when not suffering physically, he was capable of submitting to his son George a proposition whereby the pending suit was to be settled and was capable on the next day of recollecting it, and of expressing a fear that George would not comply with his promise to carry it out. If he had capacity to do that on the 28th, does it not show sufficient capacity to execute a deed, and would he not have even greater capacity on the next day, when he was not suffering so much pain, but was able to be out of bed and to occupy a seat by the kitchen window? I have no doubt that ho had all the capacity the law requires a grantor to have in order to make a good deed. It is proven by facts, not opinions of biased, non-expert witnesses, and the proof is established by plaintiffs’ own witnesses. That he thereafter made wills, inconsistent with his deed, proves nothing as to capacity. It only proves that he afterwards changed his mind. He was very old and no doubt, childish, a condition common to most persons who live to so great an' age, and I have no doubt he was influenced to change' his mind on account of the importunities of plaintiffs, or at least-of some of them, who were less favored by the deed than the two> sons. That the deed made an unequal distribution among his children proves nothing as to capacity, nor can it properly be said to savor of injustice. The property was old man Hinehman’s,. and he had a right to do what he pleased with it. It is a common occurrence, in making disposition of their property, for parents to make an unequal division of it among their children. We do not know what may have influenced Mr. TIinchman to do' so, and we have 'no cause to inquire into his motive for giving his sons the lion’s share. The law justifies his deed, if he was competent to make it, and was not deceived.
Is the charge of fraud and undue influence sustained ? I think not. Giving all the evidence that appears in the case the greatest force to which it is legally entitled on this point, it proves no more than that the two sons had an opportunity to commit a fraud, had they been so' disposed. But we held in Black v. Post, 67 W. Va. 253, that fraud could not be inferred from mere opportunity to commit it. Should we infer that fraud was actually committed, because the sons asked Stafford and his wife to visit a neighbor nearby, in order to give them an opportunity to ad*402just a matter oí business, and settle a bitterly contested law suit between the father and one of the sons, in which the other son was acting as attorney in fact for the father ? I think not. It is perfectly natural and reasonable that they should want to transact such business in private. Important business is usually transacted in private. Again, is it at all probable that Joe Iiinchman would have told Millard Stafford on the same day, and almost immediately after, the deed had been executed, exactly how the business had been settled, if he and his brother George had; in fact, practiced a fraud on their old father ? It is unreasonable to think so. It is a circumstance which, to my mind, is more consistent with square dealing than with fraud. Instead of proving that the old man submitted to his son George a proposition, on the 28th, which he accepted, and agreed to consummate on the 29th, but that, instead of carrying* it out, he united with his brother Joe in the fraudulent consummation of a wholly different arrangement, Millard Stafford’s testimony tends to prove the contrary. That which the old man told Stafford was to be done harmonizes with the presumed fairness of what was done. Stafford does not say that his grandfather told him all that was embraced in the proposition that he submitted to George, and even if he had told him all that had passed between him and George, and it had afterwards turned out differently, it would not be sufficient to prove fraud. Because the old man might very reasonably have agreed to a different proposition when he and George met. But Stafford’s testimony does not prove that a proposition, different from the one which the old man had made to George, was actually carried into the deed. He says the old man told him that George had agreed to deed the land back to him, but he does not say that he told him what he, the old man, had agreed to do with it after he got it. So much of the agreement as the old man told him George was to perform, was in fact performed, but what the old man was to do was not ■apparently made known to Stafford. So that, what the old man told him George had agreed to do, is altogether consistent with what his uncle Joe told him had actually been done. ' George did reconvey to him the land, just as the old man said he had agreed to do.: But'is it unreasonable to suppose that the old man purposely withheld from his grandson information respecting the disposition which he was to make of the land after it was re-*403conveyed to him? I think not, because he knew it would cause dissatisfaction among his other children, as soon as it became known to them. Again, if the sons had planned to deceive their father, why did they not send Stafford and his wife away from the house on the day the alleged fraud was consummated, rather than on the day before, when the agreement was made? They were at home on the 29th of May.
In 1904, the old man had conveyed all his land to his son George, and there was a bitterly contested suit then pending to have the deed set saide, and depositions of many witnesses had been taken. It was a doubtful contest, and no one could anticipate the outcome of it. Now, does it comport with good reason to say, that George had consented to surrender that contest and reconvey all the land to his father, for no other consideration than that he should receive an equal share in the land with the other children? I think not. He knew he would certainly get that much by inheritance, in case the deed should be declared void. Because, if the old man was incapable of disposing of his property by making an unequal division of it in George’s favor, he was equally incapable of making any kind of disposition of it, either by deed or will, which could operate to defeat his inheritance.
The previously expressed intention of the old man, to make all his children equal in the distribution of his property, is not evidence to defeat his deed. His intentions may have changed, and the execution of the deed is the best possible evidence that he did change his mind, if, in fact, he ever intended to make them equal. That Mr. Hinchman was easily influenced, and could have been unduly influenced by the persuasions of his two sons, does not prove that he was, in fact, unduly influenced by them to make the deed. We repeat, the law does not infer fraud from mere opportunity to commit it. The proof in this case rises no higher than to show opportunity to commit fraud.
Two deeds were executed on the 29th, one to Mr. Hinchman and the other by him. One was acknowledged by him -and the other by his son George. The notary testifies that, while he was writing out the certificate of George’s acknowledgment, the old man was looking over the other deed. He was an intelligent man, and the presumption is that he read it. It is not necessary that it should have been read to him. Again, if the sons were *404engaged in a game of fraud, it is not to be presumed that they took the notary into their confidence; neither is it reasonable ■to suppose that they would have undertaken it in his presence. There was too much risk of its discovery.
Much probative force seems to be given, in the majority opinion, to the letters written by Joe to his sisters, pending the suit between the old man and George, concerning the view Joe then had as to the old man’s mental condition, and also as showing deception and fraud on his part. Iiis conduct, in that regard, was certainly not commendable, nor even excusable. But he was then seeking to enlist the sympathy and assistance of his sisters, in a suit against George, which he was prosecuting under power of attorney from his father. The old man was then living, and none of his children had any kind of interest in his lands of which they could be defrauded. While the old man lived they could have no estate in his land. And, even if Joe did deceive his sisters, it does not prove that he deceived his father into making the deed. But whatever effect Joe’s conduct might have/ as proof of his own bad faith, it cannot be read as evidence against George. It was a transaction between other parties, and the familiar maxim, res inter alios acta alteri nocere non debet, applies.
I am clearly of the opinion that the evidence is wholly insuf■ficient to overcome the legal presumptions, that James H. Hinch-man was capable of executing the deed, and that its execution was unattended with fraud. On the contrary,, every fact proven, in relation to the execution of the deed, is perfectly consistent with fair dealing. It became known as soon as the deed was made, how the old man'had disposed of his property; he lived for nearly four months thereafter, and plaintiff made no effort to take and preserve his testimony.
In conclusion, it appears that the suit of James H. Hinchman against George Hinchman was settled and dismissed, in consideration of the deed which the majority opinion holds to be void. Is it not exceedingly unfair to George Hinchman to declare this deed void, and not restore him to his rights as they were before that suit was dismissed ? The parties should be placed in stain quo, but how can that be done ? Is there not great danger that the decision of this Court may operate to do him an irreparable injustice? I would affirm the decree.