(dissenting):
I make due allowance for the universally accepted rule: that fraud of this character must be proved by clear and convincing evidence, and also for the advantaged position of the trial court. Nevertheless, in my judgment the evidence so clearly and persuasively shows that the deceased was tricked into signing the deed, that it should be nullified. What more clear and convincing evidence would anyone want than to have the grantee of the deed confess under oath her own wrongdoing as did Teresa Nelson, that due to remorse of conscience, because she had deceived her dying husband, she had resolved to tell the truth and rectify the wrong she had done.
In addition to such credit as undisputed sworn testimony is normally given, in my opinion her evidence has substantial additional assurances of credibility. Without pursuing the detail as to what her economic advantage would be in having received the entire property, as compared to having it go into the estate and presumably receive one third, it seems safe to assume that it would be to her advantage to have received the entire property. This is especially so if the representations of the defendant V. Homer Nelson are true as to the fairness of the contract.
But beyond this, and what is more important to me, is. the fact that it would undoubtedly be quite an embarrassment for her to expose her own avarice in attempting to get the property herself by deceiving her husband. Moreover, the only direct evidence touching upon the truthfulness of her testimony as to how she accomplished the trickery, is that of the notary. It is significant and should be persuasive, that the testimony of the notary, a disinterested witness, corroborates the circumstances of the signing just as Teresa described it. All of the evidence points so unerringly to the conclusion that she tricked her husband into signing the deed that I think this is a patent case where this court should say that the evidence clearly preponderates to the contrary and substitute its finding for that of the trial court.
For similar reasons of credibility I think the evidence and the circumstances show clearly and persuasively the truthfulness of her testimony that her son, defendant V. Homer Nelson, knew or should have known the facts and that he should not be deemed to have obtained any advantage in procuring her to enter into the contract.