(dissenting).
I am constrained to dissent. The facts reported in the main opinion slant more favorably in the direction of the plaintiff’s contention, as they should do in this case. Whether this justifies a conclusion that her theory of fraud is pointed up by clear and convincing evidence is another matter, one which may be debatable in any given set of circumstances. There may be opposition evidence that may be so unworthy of belief as almost to be discountable in toto. Aside from that however, it is my opinion that taking as undenied the facts recited in the main opinion itself, they do not seem to be so clear and convincing as to vitiate the solemnity of a sealed, recorded instrument, unattacked on any equitable basis for about seven years..
*141It seems to me that the testimony of this lady of 76 years, given seven years after the subject deeds came into existence, in a self-serving atmosphere emphasized by a seven-year progressive psychiatric difficulty, highlighted by a pass at the defendant with one of Brigham Young’s antique brooms, does not lend itself to any sub'stantial degree of clarity or convincement, justifying avoidance of the documents. It seems that the trial court concluded as it did, not so much because of proven practiced fraud, but because of the differential in intelligence and business acumen of the parties, coupled with a considerable land value appreciation from time of deeds to trial. I believe I reasonably could have arrived at the result here, had plaintiff’s theory been one of “no contract” by virtue of incompetency to contract and carry on ordinary business affairs by one of the parties. In such event it would be a case of invalidity since the inception, not one of a contract made, but voidable on some equitable grounds.
The trial court appears to have based his conclusion, at least in part, on the mental deficiency of plaintiff at the time of the trial, —not seven years before, — during which period certain degenerative processes may have produced a change that may not have been reflected seven years before.
In connection with this time lapse, and in harmony with the authorities cited by defendant as to the inadmissibility of handwriting exemplars furnished after trial began,1 not before, where the trustworthiness of their genuineness would be eminently of more probative value, I believe their introduction erroneous to show forgery, not only because of their questionable probative value, but because a seven year period of time in the lives of persons in the same age group as plaintiff oftentimes shows a more rapid decadence in handwriting ability and similarity than it does mental degeneration.
I am unprepared to say that, assuming a 100% verity of the facts related in the main opinion, there is that quantum and quality of proof that may be said to prove clearly and convincingly that a seven-year-old, recorded instrument, acknowledged in a reputable attorney’s office, should be avoidable on the grounds of fraud, particularly when such facts are adduced by a person of this lady’s age whose mentality at the time of the trial, not before, was doubtful even in the contemplation of the trial court.
. 72 A.L.R.2d 1277: “Thus, in most of such cases it has been held or recognized that a signature or specimen writing made after the controversy arose and for the purpose of being used as a standard of comparison with the disputed writing cannot be used as an exemplar on behalf of the person making it.”