Rivera v. Heirs of Díaz Luzunaris

Mr. Justice Snyder,

concurring.

I agree that the lay and medical testimony was sufficient to support a finding that Ramón Díaz was insane when he executed the deed of settlement. Consequently, if the district court had entered judgment for the plaintiff based on a finding of insanity, I would vote to affirm on that ground.1 But I cannot agree that the lower court committed manifest error in not finding that Ramón was insane on that date. On the contrary, I cannot see how we are empowered to say that the district court was compelled to reject the-ample testimony that Ramón was eccentric, stupid and semi-moronic rather than insane. In addition, even if I were able to say that the lower court had committed manifest error in- weighing the evidence, I am not in agreement with some of the reasoning of the majority opinion in its discussion of insanity.1a

On the other hand, I believe the judgment should be affirmed on the ground of undue influence. I am unable to agree with the majority of the court that deceit as defined in § 1221 of the Civil Code includes undue influence and that the only difference between the two concepts is that unlike undue influence under deceit a contract may not be avoided because of the machinations of a third person. On the con*186trary, undue influence is a wholly different concept from deceit and is not encompassed by the latter. I agree that as defined in § 1221, deceit is an exceedingly broad term. Rivera v. Hernández, 44 P.R.R. 343. But in deceit consent is voluntarily given, although fraudulently induced. This contrasts with undue influence, which as we shall see may or may not be fraudulent, but in which there is no consent because the transferor has not acted voluntarily. Cf. People v. Marrero, 69 P.R.R. 337. The difference between the two concepts is therefore exceedingly important and not a mere matter of semantics or labels.

I do not believe that §,1217 of the Civil Code prevents us from holding that a contract may be avoided for undue influence. It is true that § 1217 provides that “Consent given by error, under violence, by intimidation, or deceit shall be void.” But the grounds for finding a lack of consent are not confined to those listed in § 1217. On the contrary, if there has been no voluntary consent because of undue influence, there has been no compliance with the requirements of §1213.

I am aware of the argument that ordinarily lack of consent makes a contract nonexistent, whereas a contract obtained by undue influence is voidable at the option of the victim. But this seeming departure from logic has been made in insanity cases, both in the civil and common law, in order to achieve substantial justice. Cf. Fuentes et al. v. The Federal Land Bank, supra, p. 206; 1 Williston on Contracts, Rev. ed., § 251, p. 741 et seq. Just as in the insanity cases, I believe the victim in an undue influence case may assert the contract is “void”, whereas the other party to the contract may not be heard to raise this question.

It is difficult to give a precise definition of undue influence. Restatement, Contracts, Vol. II, § 497, p. 954, provides that “Where one party is under the domination of another. . . a transaction induced by unfair persuasion of the latter, is induced by undue influence. . .”. On final analysis, every case *187depends on its own facts. And the “ultimate question is whether a free and competent judgment was merely influenced, or whether a mind was so dominated as to prevent the exercise of an independent judgment.” 5 Williston on Contracts, Rev.ed., § 1625, p. 4540. See Egr v. Egr, 131 P.(2) 198 (Ore., 1942); Trustees of Jesse Parker Williams Hosp. v. Nisbet, 14 S.E.(2) 64, 79 (Ga., 1941); Bliss v. Bahr, 87 P.(2) 219 (Ore., 1939); Rondous v. Erb, 4 A.(2) 468 (Md., 1939); Carr v. Sacramento Clay Products Co., 170 P. 446 (Calif., 1917); Note, Undue Influence in Intervivos Transactions, 41 Col.L.Rev. 707; Green, Fraud, Undue Influence and Mental Incompetency, 43 Col.L.Rev. 176.

It is true that undue influence is not mentioned specifically by name in our Civil Cade. But it does not follow that relief from contracts obtained by undue influence may not be had in this jurisdiction. In recent years this Court has not hesitated to borrow from the common law. Ruiz v. Ruiz, 61 P.R.R. 794 (constructive trust); López v. South P. R. Sugar Co., 62 P.R.R. 227 (accord and satisfaction). The consent envisaged by § 1213 of the Civil Code means consent freely given. Consent given under undue influence does not meet this test. The plaintiff may therefore sue to declare such a contract null even under the civil law. See Suárez et al. v. El Banco Territorial y Agrícola, 16 P.R.R. 599, 604; Cruz v. López et al., 17 P.R.R. 40, 44; Holstein, Vices of Consent in the Law of Contracts, 13 Tulane L.Rev. 560, 573, footnote 248. Cf. Succession of Molaison, 34 S. (2) 897, 903 (La., 1948), commented on in 23 Tulane L.Rev. 250.

In seeking to determine if undue influence was exerted on Ramón,' the lower court first considered his mental condition. This was a proper approach, as feeble-mindedness of the transferor, although not sufficient in itself, is highly material on the issue of undue influence. Allore v. Jewell, 94 U. S. 506; Lohman v. Sherwood, supra; Floyd v. Green, 188 So. 867 (Ala., 1939); Griffin v. Mays, 82 P.(2) 836 *188(Okla., 1938); 5 Williston, supra § 1625A, p. 4542: 1 Id., § 256, p. 274.

In weighing the evidence on the issue of undue influence, the district court concluded that Ramón was a “mental weakling”.2 The record contains abundant testimony in support of this finding. I therefore accept it.

The lower court next sought to determine if Ramón received adequate consideration in the settlement. Here again it acted properly, as a showing of inadequate consideration has great weight on the question of undue influence. 5 Williston, supra, § 1625A, pp. 4541-2; Restatement, Contracts, Yol. II, § 497, p. 955, Comment b; Hanks v. McNeil Coal Corporation, supra; Floyd v. Green, supra.

In arguing that the consideration received by Ramón was adequate, the appellants set forth ten grounds. Some of these grounds appear in the deed of settlement. Some appear in the testimony of Adolfo Porrata — the attorney who represented Ramón in negotiating and executing the deed of settlement — although not in the deed. And some appear for the first time in appellants’ brief. In its opinion the district court said in passing that Porrata’s testimony defending the settlement was “quite plausible”. But it did not believe his explanation, despite, this mild characterization, as it went on to hold that the consideration was “ridiculously inadequate”. I have examined these ten grounds and agree with the lower court that the consideration for the settlement was grossly inadequate.

*189The first ground is that in his will Pastor Diaz did not mention Ramón and disposed of the free third because he affirmed that he had no natural children. But preterition of Ramón in the will had no effect on his rights, provided he could establish his status in the filiation suit. Indeed, Ignacio himself filed suit to invalidate the will, and by agreement between him and the second wife of Pastor it was declared null.

The second ground is that the community property claim of Pastor’s widow reduced the amount of the estate and threatened to involve Ignacio, Ramón and the widow in litigation. This point was not mentioned in' the deed of settlement or in Porrata’s testimony. It appears for the first time in the appellants’ brief. In any event, even assuming the widow had a right to one-half of the estate as community-property, Ramon’s share was far in excess of $10,000.

The third ground is that there were outstanding accounts and obligations to liquidate before the estate could be distributed among the heirs. There is no evidence in the record as to the amount of these alleged obligations. The only evidence that does bear on this point -is that when Ignacio filed the estate tax return, he had already deducted the outstanding debts of the estate. And he paid the tax on $76,053.21 which he declared in the return was Ramon’s share. Consequently, even after deducting all outstanding obligations and participations, the share of Ramón, according to Ignacio’s own declaration, was $76,053.21. And the other evidence in the case indicates that it was considerably larger.

The remaining grounds are equally untenable. Obviously, the liability of Ignacio for funeral expenses and for undisclosed but undoubtedly modest property taxes could not serve to make the consideration adequate. Likewise, speculation about costly judicial administration which never took *190place and the threat of litigation against the estate, no details of which are given, cannot be invoked.

The appellants argue that these ten grounds made the settlement valid in the light of McCormick v. McCormick, 52 P.R.R. 669. In view of the foregoing discussion, the McCormick case is not in point. In addition, there was no suggestion or contention in the McCormick case either that the settlement was obtained by undue influence or that the consideration was grossly inadequate.

The appellants also argue that in view of the Me Cormick case the lower court should have considered, on the issue of the adequacy of the consideration, the following: (1) revival of the filiation case, after it had languished for twenty-seven years, was debatable; (2) that suit contained testimony that Ramon’s mother had sexual relations with other men during the period of his conception, and this Court reversed the judgment of the district court in favor of the plaintiff for that reason; (3) the reversal required a new trial, and it was this requirement of a new trial with all its legal implication which was the basis of the settlement; and (4) the plaintiff was not registered in the Registry of Vital Statistics and proof of his filiation was problematical.

I see no merit in (1) and (3). Under the circumstances of this case, Ramón was clearly entitled to a new trial in the filiation suit, despite the fact that the case had not actually been set for retrial for twenty-seven years.

As to (2), actually there was no such testimony at the first trial. There was an offer of proof which we held the lower court erred in not admitting. Rivera v. Díaz, 19 P.R.R. 524. And to complete the picture of the efforts to prevent the recognition of Ramón as an acknowledged natural child of Pastor Díaz, see The People v. Díaz et al., 22 P.R.R. 177, and In re Abella, 25 P.R.R. 694.

As to (4), it is immaterial to this case — or to the filiation suit — whether or not Ramón was inscribed in the Registry of Vital Statistics.

*191Finally, the appellants rely on Cabanillas v. Cabanillas et al., 33 P.R.R. 739, and Sosa v. Sosa, 35 P.R.R. 939. See also Heirs of Gómez v. Colón, supra, p. 102. ‘Those eases hold that mere liberality or generosity among relatives is sufficient causa or consideration in the civil law. I find it difficult to believe that the appellants are serious in asking us to hold on this record that in executing the deed of settlement, Ramón, an almost illiterate, poverty-stricken, moronic, natural son of the testator was prompted by liberality toward Ignacio, the legitimate son of the wealthy dece'dent. In any event, the issue here is not whether there was sufficient causa to bind the parties. Rather I am seeking to determine if any undue influence took place. And on that issue, even though the consideration be technically sufficient, its gross inadequacy is substantial evidence of undue influence.

I am satisfied that most of the ten grounds advanced by the appellants to justify the settlement are afterthoughts. Indeed, the testimony of Porrata defending the settlement is in conflict with a letter discussed hereinafter in which Po-rrata says that at least $25,000.00 should have been received. I therefore agree with the lower court that the consideration for the settlement was grossly inadequate.

In view of the feeble-mindedness of Ramón, the grossly inadequate consideration and other facts shortly to be considered, the lower court held the deed of settlement null because of “fraud and undue influence”. In other words, the deed was obtained by fraudulent undue influence on Ramón in order to benefit Ignacio and to prejudice Ramón. This is in accordance with the rule that undue influence is frequently, although not necessarily, fraudulent. 5 Williston, supra, § 1625, pp. 4540-41.

In its opinion the lower court made eleven findings which it called indicia of undue influence. Some of these referred to the mental condition of Ramón and the inadequacy of the consideration. The remainder referred to other circum*192stances tending to show undue influence. These findings were in substance as follows:

1. Ramón was anxious to obtain money, principally to acquire an automobile, motorcycle or airplane. Porrata catered to this desire by arranging on the day before the settlement to obtain a license for him to drive a motor vehicle.

2. The estate left by R. Pastor Diaz was valued at a large sum, whereas Ramón settled his rights therein for $10,000.

3. Ramón received only $5,000 from the settlement, the remaining $5,000 going to his attorneys.

' 4. The legitimate son and widow, their attorneys and the attorneys for Ramón all had their special reasons for terminating the suits. On the other hand, Ramón was highly impressionable and did not understand the scope of the settlement ; his principal, if not his only, objective was to acquire an automobile, motorcycle or airplane.

5. Although Ramón received only $10,000, of which his attorneys retained $5,000, the estate tax return, made by Ignacio, declared that Ramon’s share was $76,053.21. At the very least, this was defrauding the public treasury.

6. Porrata required Ramon’s mother tó sign the contract for his, professional services, despite the fact that Ramón was of age. This tends to show that Porrata knew that Ramón was incapacitated or feeble-minded. (At this point the lower court added that it was not convinced that Ramon’s mother was present when the deed of settlement was executed) .

7. From the last days of November 1939 until the deed of settlement was executed on February 28, 1940, the expenses of Ramón and his mother while they were in Guayama were paid for by Porrata, before whom as a notary public the deed of settlement was executed.

8. The fact that the suit for filiation was being settled must be taken into consideration in view of the prohibition *193in § 1713 of the Civil Code against settlement of suit involving civil status.

9. The preliminary agreement of settlement was signed only by Ramón. And it provided that Ignacio would not raise any obstacle or difficulty in the filiation suit. This demonstrates the parties were settling the case involving Ramon’s civil status.3

10. Porrata insisted in his testimony that Rafael Civi-danes had not participated in the settlement. The testimony shows the contrary. It shows that Cividanes took Ramón to Mayagüez and participated there and at other places in conversations involving the filiation suit and the estate. Four days after execution of the deed of settlement, Porrata wrote Cividanes that "... your actions in the case not only prejudiced me but compelled me to, settle for $10,000 when I could have obtained $25,000 which was reasonably what ought to have been paid”. This on its face is an admission by Po-rrata that, whatever his reasons might have been, he settled Ramon’s claim for a grossly inadequate sum to the prejudice of Ramón.

11. The failure to utilize Ramón, who was present as a witness in the filiation suit, demonstrates that Porrata knew his mental condition.4

The lower court then said that “not only do we conclude that Ramón Díaz Rivera was a mental weakling, but also that in order to obtain his signature to the deed of settlement of February 28, 1940 undue' influeiice by others was exercised on him.” I think the lower court should have been *194more specific: it should have given the identity of “the others” who exercised the undue influence. But it is clear from the findings, the opinion as a whole and the testimony, that the district court meant that the undue influence had been exerted principally by Porrata.

In addition to the eleven findings of the lower court, I note the following:

1. Ramón repeatedly told all who would listen that the only thing he was interested in was getting an airplane or motorcycle, despite the fact that his alleged % share of an alleged $600,000 estate was involved.

2. Ramon’s mother warned Porrata that Ramón was feeble-minded, incapacitated and could go nowhere alone. She and Porrata agreed she would be present if any deed of settlement were signed. Porrata himself seemed to think this was advisable when his own interests were involved: despite the fact that Ramón was of age, he had the mother as well as Ramón sign the agreement with him for his professional services. Porrata broke his agreement to have the mother present by having Ramón sign the deed when she was not present.

3. The parties entered into a preliminary agreement of settlement on January 19, 1940. The original document embodying this settlement was signed by Ignacio and Ramón and was retained by Agustín Font, counsel for Ignacio. The copy retained by Porrata was signed by Ramón but not by Ignacio. In practical effect, Porrata, with the knowledge of Font and Ignacio, thereby put Ramón in the position where Ramón but not Ignacio was bound by the preliminary agreement.

4’. Ramírez Viñas, an attorney who-was also acting as attorney for Ramón, testified that Porrata told him on February 28, 1940, in the presence of Ignacio and Font, that the case had been settled for $7,500; that he protested the sum was inadequate; and that Porrata replied that they were *195engaged in conversations in an effort to. raise it to $10,000. Porrata made these statements to Ramírez Viñas without protest from Ignacio and Font in the face of the fact that the preliminary agreement of settlement for $10,000 had already been executed on January 19, 1940.

5. The deed of settlement recites that $10,000 was being delivered to Ramón upon its execution. But he never received $10,000. He was given $500 in cash and a $4,500 certificate of deposit the day before the settlement. His attorneys received a certificate of deposit for $10,000. In addition to the light this sheds on the nature of the transaction, even if Porrata’s services had been rendered faithfully to Ramón, he and his associates were scarcely entitled under the circumstances to fifty per cent of the amount of the settlement.

6. The appellants subpoenaed Font as one of their witnesses. However, despite the serious implications in the case as to the conduct of Porrata and Font, the latter did not testify in this case.

The eleven findings of the lower court, together with the episodes set forth in the last six paragraphs and the record as a whole, satisfy me that Porrata, Ignacio and Agustín Font, attorney for Ignacio, all knew prior to the settlement that Ramón was feeble-minded; that Ignacio knew the consideration was grossly inadequate; that Porrata, whatever his motives, was acting in the interests of Ignacio and not of Ramón; and that Ignacio and Font knew that Porrata was so acting.

Generally speaking, a finding of fraud may not be based on conjecture or suspicion. The proof must be solid, clear and convincing. Serrano v. Torres, 61 P.R.R. 157, 161; Heirs of Gómez v. Colón, supra. But a lower degree of proof is required to make out a case of undue influence, fraudulent or otherwise, where as here mental weakness is present. Nelson et al. v. Doheny et al., 30 F.(2) 748 (C.C.A., D.C., *1961929); Sulzberger v. Sulzberger, 28 N.E.(2) 46 (Ill., 1939); Moore v. Horne, 136 S.W.(2) 638 (Tex., 1940). In addition, the lower court in effect found that Porrata was dealing with his feeble-minded client for the benefit of Ignacio. If an attorney deals with his client for the benefit of himself or of a third person, the burden is on him or the third person to show that the transaction was fair and that the agreement thereto by the transferor was his free act. Lochinger v. Hanlon, 33 A.(2) 1 (Pa., 1943); Bliss v. Bahr, supra; Floyd v. Green, supra; Addis v. Grange, 192 N.E. 774 (Ill., 1934); Trustees of Jesse Parker Williams Hosp. v. Nisbet, supra; Egr v. Egr, supra; 5 Williston, supra, § 1625A, pp. 4642-45, Restatement, Contracts, Vol II, § 498, p. 956. The appellants did not sustain that burden. On the contrary, the record shows that the settlement was unfair and that Ramón did not freely give his consent.

I note finally that even if Ignacio did not exert any undue influence himself, the fact that he knew of the undue influence for his benefit entitled the plaintiff to treat the settlement as null. See Suárez et al. v. El Banco Territorial y Agrícola, supra, p. 604; 5 Williston, supra, § 1622, pp. 4534-5; Restatement, Contracts, §496, p. 953, § 477, p. 912; Addis v. Grange, supra; Annotation, 96 A.L.R. 613.

The appellants argue that on the basis of “estoppel by deed and judgment” Ramón was estopped from annulling the deed of February 28, 1940. The theory of the appellants is that Ramón cannot be heard to say he was incapacitated on that date inasmuch as on the same day he had appeared in his own name in the filiation suit and obtained judgment therein. They rely on The Plantations Co. v. Smith, 23 P.R.R. 365, and Figueroa v. Figueroa et al., 23 P.R.R. 405.

From my point of view, it is enough to dispose of this contention to say that I would not base the judgment in this case on lack of capacity of Ramón. Moreover, even if that issue is involved here by virtue of the opinion of the majority of this Court, it could not be settled by merely pointing to *197an earlier suit in which the allegedly incapacitated person appeared as plaintiff in his own name.

The appellants argue that the statement of the lower court that the parties settled a suit concerning civil status, in violation of § 1713 of the Civil Code, 1930 ed., is unwarranted.5 It is true the lower court made this statement, undoubtedly relying on Pagán v. Heirs of Padilla, 42 P.R.R. 941. In that case the parties signed and filed in the filiation suit in the district court an agreement by the parties in which the defendants “acquiesced” in the prayer that the plaintiff be declared a natural child. The agreement also contained a settlement of the inheritance rights of the plaintiff. We held the entire agreement was void because it violated § 1713.

Here the preliminary agreement of January 19, 1940 recited that part of the consideration was that Ignacio would not raise any obstacle or difficulty against the entry of judgment for Ramón in the filiation suit. This agreement virtually assured Ramón of a favorable judgment in the filiation suit. Indeed, the record shows that the trial was pro forma. Font, counsel for Ignacio, announced at the beginning of the trial that he had no witnesses. No one appeared for the second wife of Pastor Díaz. Ramón himself did not testify. Font did not cross-examine any of the witnesses, except for one or two irrelevant and trivial questions which he asked, one witness. And the lower court, which apparently had not been advised of the settlement, seemed puzzled as to why default had not been noted. After the district court entered judgment in the filiation suit, on the same day the definitive deed of settlement was signed. Without mentioning the preliminary agreement of January 19, 1940, the deed of settlement recites that it was made in consideration of $10,000 and also in consideration of the fact that Ignacio made no objection in the filiation suit to the ruling that Ramón was an acknowledged natural child of Pastor Diaz.

*198Under the foregoing circumstances, it could perhaps- be argued that the Pagan case applies and that the settlement herein was null because it violated § 1713. Cf. Valdés v. Hastrup, 64 P.R.R. 569. However, I find it unnecessary to decide this question as I prefer to rest our decision on other grounds. The lower court' took a somewhat similar position. It did not declare the deed of settlement null on the ground that it violated § 1713. Instead of deciding the case on that basis, it said that the alleged violation of § 1713 was one of the indicia of undue influence, and predicated its decision on undue influence. I think the district court properly regarded those facts as an indicia of undue influence.

The appellants also complain of the ruling of the lower court that this action was not barred by prescription. The appellants contend that the suit is barred by § 1253, Civil Code, T930 ed., which establishes a four-year statute of limitations. This suit was instituted approximately five years after execution of the deed of settlement. It is therefore barred if § 1253 applies.6

As we have seen, a contract obtained by undue influence vitiates the consent of the transferor. The latter may therefore at his option bring a proceeding to declare it null. The actions for nullity listed in § 1253 prescribe in four years. But this suit, predicated on a lack of consent by virtue of undue influence, is not included therein. Cf. Oliver et at. v. Oliver, 23 P.R.R. 168; Cruz v. Heirs of Kuinlan, 29 P.R.R. *199817; Solá v. Castro et al., 32 P.R.R. 740; González et al. v. Fumero et al., 38 P.R.R. 497. 'Consequently, this action would prescribe only after fifteen years under § 1864 of the Civil Code. It was therefore brought in ample time and the defense of prescription does not lie.

Indeed, not the least of the virtues of the doctrine of undue influence is that it avoids the effect of an extremely harsh statute of limitations. Under § 1253 prescription begins to run when the contract was consummated and not as it would when the deceit is discovered. As a result, § 1253 as now written pays a premium for concealment of deceit.

Of course,' the best answer to this whole problem would be for the Legislative Assembly to insert undue influence in § 1217 as a ground for making consent null and to amend § 1253 to provide that the statute of limitations begins to run from the date of the discovery of the grounds of nullity rather than from the date of consummation of the contract.. In view of the laudable interest which the Legislature has manifested in recent years in the rights of natural children, I do not think it amiss for me to call this matter to its attention.

Finally, the appellants argue that the judgment was erroneous because the pleadings did not allege undue influence, but alleged only mental incapacity and fraud. Alleged errors of pleading of this type are no longer permitted . at this stage of a case to affect the result of litigation in this jurisdiction. Rule 15(6), Rules of Civil Procedure. See Núñez v. Benítez, Chancellor, 65 P.R.R. 812; López v. Saldaña, 68 P.R.R. 897.7

I think the judgment should be affirmed for the reasons given herein.

See Fuentes v. Federal Land Bank, 64 P.R.R. 193; Heirs of Gómez v. Colón, 63 P.R.R. 99; Valiente & Co. v. Heirs of Fuentes, 45 P.R.R. 600, affirmed in 76 F.(2) 78 (C.C.A. 1, 1935) ; Heirs of Cabrera et al. v. Aponte, 29 P.R.R. 874; Caballero et al. v. Pomales et al., 17 P.R.R. 691. Cf. Fisher v. United States, 328 U.S. 463; Waialua Co. v. Christian, 305 U.S. 91; Lohman v. Sherwood, 26 S.E.(2) 74 (Va., 1943) ; Mills v. Shepherd, 157 P.(2) 533 (Kans., 1945); Hanks v. McNeil Coal Corporation, 168 P.(2) 256 (Colo., 1946); 1 Williston on Contracts, Rev. ed., § 256, pp. 753-55; Green, Public Policies Underlying the Law of Mental Ineompetency, 38 Mich.L. Rev. 1189; Green, Judicial Tests of Mental Ineompetency, 6 Mo.L.Rev. 141; Green, The Operative Effect of Mental Ineompetency on Agreements .and Wills, 21 Tex.L.Rev. 554; Green, Proofs of Mental Ineompetency and the Unexpressed Major Premise, 53 Yale L.J. 271.

I agree that the test of insanity for civil cases is to determine whether the contracting party was so mentally ill that he was unable to understand the specific transaction; but I am not in accord with the discussion in the majority opinion of § 180 of the Civil Code.

The district court found that Ramón had the mental age of twelve years, with an intelligence quotient of 75%; he suffered from oligophrenia which is a form of mental deficiency; his conduct was guided by fortuitous emotion; he was mentally incapable of understanding a financial transaction involving thousands of dollars, or of determining whether he was receiving adequate compensation in settling a business transaction, or of estimating the true value of money; he was inclined towards being a moron; he was a mental weakling and a stupid person in the light of the average person in the community; he was very emotional and sensitive to any stimulus; and he was mentally abnormal.

As to findings 8 and 9, it is not necessary to determine if I agree that § 1718 was violated. As I point out subsequently, even if the settlement did not technically violate § 1713, its terms and the manner in which it was negotiated were indicia of undue influence.

For purposes of clarity, I have paraphrased somewhat the language of the district court used in making these findings. In so doing, I do not believe I have changed their meaning. In any event, the statement of the findings of the lower court as rephrased by me is amply justified by the testimony.

Section 1713 provides that “No compromise can be made with regard to the civil status of persons, nor with regard to matrimonial questions, nor future support.”

Section 1253 reads as follows:

“The action for nullity shall last four years.
“This term shall commence to run:
“In cases of intimidation or violence from the day on which it has ceased;
“In those of error or deceit or falsity of consideration, from the date of the consummation of the contract;
“When the purpose of the action is to invalidate contracts made by a married women, without consent or competent authority, from the date of the dissolution of the marriage;
“And when it refers to contracts executed by minors or incapacitated persons, from the date they were released from guardianship.”

In view of my discussion of the conduct of Porrata Doria, I need hardly add that I join the majority of the court in ordering an investigation thereof.