(dissenting).
This case involves a deed by which an ailing father, Ole Johnson, on Sept. 4, 1951, transfers all of his real estate by a joint tenancy deed with right of survivorship to his son, Victor, and himself. The plaintiffs claim that Ole Johnson did not have the mental ability to understand the transaction when he signed the deed and that Victor exercised undue influence on him to secure that deed. Ole Johnson, hereinafter referred to as Ole, was the father of twelve children of whom his son, Victor, was the youngest. Victor was 41 years old at the time and single. Ole was 88 years old. Ole and Victor lived together alone for eleven years before the deed was issued. During the latter part of that time Ole was ill, and seriously so the last two or three years. For at least the last two years before the execution of the deed Victor had complete management of Ole’s farm, consisting of 1784 acres, and stock and machinery necessary for the operation thereof. It is admitted that there existed complete trust and confidence between the two and that there was ample opportunity for Victor to exercise influence on his father.
In Fjone v. Fjone, 16 N.D. 100, 112 N.W. 70, this court held:
“Courts of equity will carefully scrutinize contracts between persons occupying relations of trust and confidence, and it if appears that a contract was. entered into through the exercise of undue influence practiced by one party upon the other, or if it is grossly unfair or inequitable, the courts will not hesitate to cancel the same.” See also 24 Am.Jur., Sec. 47, p. 756.
It is therefore necessary to consider carefully all of the evidence in the case. The decision will depend -upon the conclusions that can be drawn from that evidence. Let us first consider the evidence on mental capacity.
The majority opinion states correctly the facts of Ole’s active life before he was struck with illness. He had been a successful farmer and a very active participant in community affairs. His children all helped him and worked on the farm with him, without pay, until they themselves married, and sometimes after their marriages. He was known as the boss of the family. In 1948, six years before his death, he suffered a stroke and another one in 1949. Thereafter he was ill and died in 1954 of arteriosclerosis at the age of 90.
As said in the majority opinion, Dr. Kenneth Melvey, who treated Ole prior to his second stroke, gave his opinion that after his first stroke Ole was adequate mentally except for periods when his blood pressure would rise and he would have serious headaches. His son, Rosgard, however, testified that after he had been in the hospital Ole “used to complain to me that he acquired a trouble with his head and had pains.” His son, Roy, who visited him often, quoted his father as saying: “Well I believe half of the time when I was down visiting with him he says I got sort of headache, it is never cleared.” That indicates that he suffered continuously from headaches. On cross examination Dr. Melvey *227testified that Ole’s blood pressure “was at constant high level but there was some variations. So far as hardening of the arteries, that is a progressive thing, * * * arteriosclerosis is hardening of the arteries and as they harden the lumen on the inside gets smaller and necessitates greater pressure on the heart to get blood through so it is a considerable factor in high blood pressure.”
“Q. And I assume when the blood pressure reached this state where you say he got headaches that would indicate some effect on the brain? A. Yes.
* ⅜ ⅜ * ⅜ *
“Q. Is it very common, Doctor, that a stroke renders a party mentally incompetent ? A. Y es.”
Dr. Robert Johnson (no relative) was called as an expert witness for the plaintiffs. He had not treated Ole at any time. The history of Ole’s illness was stated to Dr. Johnson in a hypothetical question. In his answer Dr. Johnson states: “Once a person has a stroke a certain amount of brain tissue is damaged. Brain tissue does not regenerate. It is a characteristic of brain cells that once destroyed, never grow new brain cells; therefore, when he had a portion of brain tissue destroyed that would never return.
“Q. Would that condition affect a man’s business capacity, his capacity to look after his business affairs? A. Y es, it could very much.
“Q. And I take it it would not improve his capacity? A. It would never improve his capacity.
“Q. It would have the other effect? A. That’s right.”
According to the testimony of the doctors, arteriosclerosis and hardening of the arteries from which Ole suffered and which led to his death are progressive diseases. The evidence shows that Ole was ill from those diseases until his death.
The medical testimony alone is not conclusive. Those doctors did not treat him at the time of his second stroke or after that time. However, it is a basis for lay testimony of his future mental health.
It has been generally held that lay witnesses are competent to give an opinion as to a person’s mental capacity when they, from daily intercourse with or observation of him, can make an intelligent comparison of his mental manifestations with his prior conduct at a time when it is admitted he enjoyed the full use of his natural faculties. Nelson v. Thompson, 16 N.D. 295, 301, 112 N.W. 1058; Beller v. Jones, 22 Ark. 92; Dominick v. Randolph, 124 Ala. 557, 27 So. 481; People v. Sanford, 43 Cal. 29, 33 ; Halde v. Schultz, 17 S.D. 465, 97 N.W. 369; Jones on Evidence, 3rd. Ed., Sec. 364, p. 550, and cases cited. In Eggert v. Schroeder, 158 Neb. 65, 62 N.W.2d 266, 271, it is held:
“That a grantor did not understand and comprehend the purport and effect of what he did when he executed the deed may be established by the opinion of nonexpert witnesses if proper and sufficient foundation therefor has been laid. See, In re Estate of Wahl, 151 Neb. 812, 39 N.W.2d 783; In re Estate of Witte, 145 Neb. 295, 16 N.W.2d 203, 17 N.W.2d 477.”
Seven of the brothers and one sister testified for the plaintiffs. All agreed that there was a great mental deterioration in Ole after the 1949 stroke. Clifford Johnson said his father didn’t recognize him at times and that it was hard to make him understand; that most of the time at home he would be lying on the duo fold or sitting in a rocker about half asleep. Rosgard Johnson testified to the same effect. Roy Johnson told of the difficulty in talking with his father and his forgetfulness. All of them had visited their father very often and they said that in their opinion he was incapable of doing any business after the 1949 stroke. The testimony of Franklin Johnson, next youngest to Victor, and the *228one who worked with Victor and his father the longest testified as follows:
“Q. Well now you say you noticed a change in him after he was in the hospital in ’49, tell us what changes you noticed in him ? A. Oh, after that time lots of times when come down there, go over every day, come there in morning he would not remember my name, sometimes called me Cliff, sometimes called me Leo or any of the other boys, would not even know my name.
“Q. Was he active in running the farm after that? A. No, he wasn’t.
“Q. Did he have any difficulty in carrying on conversations with you or with others that might visit there ? A. Yes, he would have.
“Q. Tell us about that? A. Lots of times he would start to tell something just get out word or two and forget what it was and would quit right there.
“Q. And did you ever notice him asking the same question over repeatedly? A. Yes, I did.
“Q. In other words he would ask something and you would tell him and pretty soon he would ask the same thing again? A. He would do that different times.
“Q. Did you notice any difference in his knowledge of what was going on, what he read in papers and things like that after 1949 ? A. I don’t think so.
"Q. What I mean — what I am getting at — did he take the same interest in politics and world affairs and things like that? A. No, he didn’t.
“Q. Did he talk over with you the things that he read in the newspapers or heard over the radio ? A, No, he didn’t.
“Q. From your observation, and as I understood you to say, you saw him every day, would you say that there was a definite change in his mental condition after 1949? A. I believe there was.
“Q. And was that going down hill? A. Seemed to be going down.
“Q. From your observation of him and your contact with him over these years, is it your opinion that he was able to look after his business affairs after 1950 ? A. I don’t think so.
“Q. You think that his mind had failed so much that he did not remember things and wasn’t able to judge what was good for his business affairs after that so as to be able to run things —that what you mean? A. Yes.”
Four of Ole Johnson’s neighbors who had known and worked with him testified to the effect that in their opinion Ole was not able to manage his own affairs. Sigurd Larson, who served with him on the township board until 1950, testified:
“Q. Mr. Larson, from your association with Ole Johnson during his last term on the town board as compared to his actions during preceding terms, would you have an opinion as to whether there was any deterioration, falling-off of his mental capacity in the last— during his last term? A. As far as being qualified to decide his personal mental capacity I am not qualified to do that but as I have known Ole Johnson, it is my personal opinion I would say there wasn’t much left of Ole Johnson’s mental capacity at these meetings, did not take any interest in it, slept most of the time. Years back when Ole Johnson was himself he did not use to sleep on the job, was very active, energetic man, wanting things to move along, wanted things done and at the last township meetings why he just come, picked best chair for him, sat down, went to sleep, woke him up once in awhile asking him opinion — it is all up to you fellows — and dozed off again. That’s my opinion, I am not qualified *229to say personally how a person is mentally.
“Q. Now we understand, Mr. Larson— ? A. But as a fellow that worked with him that’s my honest opinion.”
Justin Evanson, another member of the Board, corroborated Sigurd Larson.
On behalf of the defendant Victor himself testified, as did his sister, Delia Morten-son, his nephew, Howard Johnson, who was working for him, and one Ervin Hegge. To all of them there does not seem to have been much difference in Ole after the 1949 stroke except that his hearing kept getting worse. Victor said he “did not give up, did not see much difference.” He admits the neighbors had had trouble visiting with Ole the last year or so on account of his hearing. All those witnesses admit that Ole did not at times after the 1949 stroke recognize his children. They further state that they never heard nor inquired what Ole’s trouble was.
Victor admits that Ole took no part in the conduct of the farming enterprise after the 1949 stroke; that Ole entrusted that matter entirely to Victor.
Howard Johnson, a son of Melvin, one of the plaintiffs and grandson of Ole, testified that he could see no difference in Ole in the year 1951 from prior times. He admits that Ole never discussed business; that Victor was the boss on the farm. He claimed that Ole had a mind of his own and was able to exercise it. He did not, however, point out any instance when Ole had exercised a mind of his own. He testified that Ole’s memory was all right and that he never noticed Victor dominating him.
Delia Mortenson, a daughter of Ole, and an unwilling plaintiff, testified that she visited her father at the hospital and at his home; that she helped with the cooking in 1950; that she never knew he had had a stroke; that she thought he was capable of exercising his own judgment. She testified, however, that she did not see her father carry on any business in 1950 or 1951; that she never talked business with him.
Final witness for the defendant was Ervin Hegge, a 30 year old farmer living 4½ miles away from the Johnson farm. He said he had seen Ole three or four times a summer since 1949 when he was visiting Victor. Ervin said that he did not know anything was wrong with Ole’s mentality but that “after he got sick that time you know that kind of changed him.”
As to Ole’s mental ability the testimony of Sigurd Larson is cited. Fie said that in 1951 or 1952 he was soliciting funds for the Salvation Army. He could not make Ole understand so he showed him a contribution list. Then Ole understood he wanted money. This, it is claimed, showed that Ole retained his power of comprehension. It does not take much mental capacity to understand a contribution list.
The preponderance of the evidence is to the effect that Ole never recovered his mental ability after the 1949 stroke to the extent that he could participate in any business or in his usual community activities. When that is compared with his active and capable participation in all these and community affairs prior to the 1949 stroke, it shows that Ole’s mental capacity was affected. That, as the doctors indicated, would be the effect of a bad stroke. We need not, however, determine whether he was totally incompetent as the plaintiffs claim, if while Ole was in such admitted weakened mental condition Victor used undue influence over Ole in order to secure the deed in question, that would vitiate the deed.
The recognized elements necessary to show undue influence are, first, a person, that is subject to influence, second, an opportunity to exert undue influence, third, a. disposition to exert undue influence, fourth, the result indicating undue influence. In re-Burris’ Estate, N.D., 72 N.W.2d 884; Davies v. Toms, 75 S.D. 273, 63 N.W.2d *230406; Gidley v. Gidley, 130 Neb. 419, 265 N.W. 245; Eggert v. Schroeder, 158 Neb. 65, 62 N.W.2d 266. In this case the fourth element is very important and should not be overlooked.
In the case at bar the evidence clearly shows that Ole Johnson was in a weakened, mental condition at the time of the signing of the deed and would, therefore, be more susceptible to undue influence.
“Conduct which might be insufficient to influence unduly a person of normal mental strength might be sufficient to operate upon a failing mind. One who is infirm and mentally weak is more susceptible to influence than one who is not. In re Estate of Ensminger, 230 Iowa 80, 82, 296 N.W. 814, 815, and cases cited; 68 C.J. 767, § 458.” In re Telsrow’s Estate, 237 Iowa 672, 22 N.W.2d 792, 796.
Victor had opportunity to exert influence. Since the mother died in 1941 Ole Johnson was pretty much in the care and control of his son Victor. They lived together alone except for such times as they had hired help upon the farm and when Franklin, Melvin, Howard and the daughters helped them. During that time Victor had complete charge of the farming enterprise and was in control of everything. There is some showing that Victor had a disposition to exert undue influence on his father even before the strokes.
In 1942 Cecelia Opdahl, Ole’s daughter, helped Ole and Victor with the housework. Ole took her to her home in the evenings. When he left her each night he would thank her and tell her she “would be paid some day.” That was only a year after Ole and Victor started living together. At that time Ole apparently intended to help the other children who had worked for him.
In 1946, four years later, Victor’s influence is shown in connection with the building of a barn on the Finstad place which Ole had bought in 1940 and placed in Franklin’s and Victor’s names. It was, however, farmed in connection with the whole Johnson farm so that the proceeds of the crop were in Ole’s name. Franklin testified that one day Ole promised him that he could build a barn on that place. A couple of days later Ole came back and said that Victor had said, “Nothing doing.” So Ole’s mind changed and he did not let Franklin build the barn. It is argued that this change may have been made by ordinary reasoning but even so it was because of the influence of Victor that the barn was not built. Victor first admits he remembered that talk. Then he shrugs off this episode by a reference to building on the home place and says he never heard that Franklin asked his father if he could build on the Finstad place.
The testimony of Delia Mortenson, a daughter of Ole, is cited as showing that Ole had intended for a long time to leave everything to Victor. She claims that in talking to her father after Victor bought an airplane in 1947, her father indicated he had been afraid of an airplane but said he had told Victor to go ahead and buy it if he wanted to, because, “What is his is mine and what is mine is his.” That happened six years after Ole had been subject to Victor’s influence. If it means, as the plaintiffs claim that Ole’s mind was then made up to turn over his property to Victor his mind had been changed since he told Cecelia that she would be paid later. By that time, however, the grain and personal property was apparently being held in joint ownership. The airplane was paid for out of the grain so raised. There is no certainty here that Ole meant that to apply to the real property. It is more likely to have applied to the personal property which was the only property affected by the purchase of the airplane. That remark cannot be considered as proof of a long time intention by Ole to leave everything to Victor.
Victor’s attitude is shown when Melvin, while working with Victor in 1946, asked his father about the deed for the land he had been promised. That happened one day while they were eating breakfast. Vic*231tor then got mad and was going to throw Melvin out. Ole said nothing so Melvin walked away. Apparently Victor hadn’t wanted his father reminded of those promises and Ole did not have the mental capacity or courage to interfere and answer Melvin’s inquiry.
At one time Roy found his father “was not so good” so he tried to cheer him up and said “you will be driving that V8 standing out there.” Victor turned around and said, “Don’t give him any bright ideas.” While this may have been said for the protection of the father it is also a further indication that he did not want his brothers advising his father on any matter.
While these are mere instances they do indicate a disposition on the part of Victor, even before the father had the strokes, to keep the brothers from interfering in his relations with his father. There is at least enough evidence to support the presumption arising from the long and close association of Ole and Victor that such influence existed. After the strokes there is no evidence that Ole had any mind capable of making any decision.
It is admitted that the relation of trust and confidence existed between Ole and Victor. Clearly the evidence shows that during Ole’s illness Victor was the strong man and was superior to his father both mentally and physically.
A fiduciary relation exists in every case “in which there is confidence reposed on one side and the resulting superiority and influence on the other. The relation and the duties involved in it need not be legal; it may be moral, social, domestic, or merely personal.” Hensan v. Cooksey, 237 Ill. 620, 629, 86 N.E. 1107, 1109; see also Irwin v. Sample, 213 Ill. 160, 72 N.E. 687; Roby v. Colehour, 135 Ill. 300, 25 N.E. 777; Ennis v. Burnham, 159 Mo. 494, 60 S.W. 1103.
In Kirschner v. Kirschner, 113 Mo. 290, 297, 20 S.W. 791, 792 it is said:
“Where one person has acquired over another a position of superior influence or advantage by reason of relationship, trust, or confidence, (whatever its origin,) and business dealings occur between such parties, the court will require proof of the former that the dealings were fair and honest in all respects on his part, under penalty of rescinding such dealings entirely.”
“The existence of the confidential relation creates a presumption of influence which imposes upon the one receiving the benefit the burden of proving an absence of undue influence by showing that the party acted upon competent and independent advice of another, or such facts as will satisfy the court that the dealing was at arm’s length, or that the transaction was had in the most perfect good faith on his part and was equitable and just between the parties, or, as some of the authorities say, that it was beneficial to the other party.” Hensan v. Cooksey, 237 Ill. 620, 86 N.E. 1107, 1109; Thomas v. Whitney, 186 Ill. 225, 57 N.E. 808.
This court has laid down the rule that if the circumstances are such that the grantor is likely to be subjected to the will of the grantee the burden is upon the grantee to show that the conveyance was made freely and voluntarily and with full knowledge on the part of the grantor of its character and effect. Doyle v. Doyle, 52 N.D. 380, 202 N.W. 860; Fjone v. Fjone, 16 N.D. 100, 112 N.W. 70; Brummond v. Krause, 8 N.D. 573, 80 N.W. 686; Smith v. Smith, 84 Kan. 242, 114 P. 245, 35 L.R.A., N.S., 944; Massey v. Rae, 18 N.D. 409, 121 N.W. 75.
The circumstances in the case at bar show not only the confidential relation between Ole, the grantor, and Victor, the grantee, but that the grantor was likely to be subjected to the will of the grantee. The burden is, therefore, upon Victor to show that no undue influence was used by him *232on Ole; that this deed was executed freely and voluntarily and with full knowledge on the part of Ole of its character and effect.
Victor has failed to show that Ole took part in any independent business transactions regarding the farm after the 1949 stroke. Victor admits Ole would ride along when Victor was engaged in business transactions without taking any part in them. Further, Ole’s deteriorated mental capacity is pretty well shown by the evidence heretofore reviewed.
Victor claims that his father 20 or 30 years before, had told him that if he stayed .and helped on the farm he would have the •property. He claims his father had repeated that promise. Ole had made the •other sons somewhat similar promises. Victor claims he never asked for a deed. 'That he had been giving the matter some Ihought, however, is indicated by his statement later to his brother Winfred, to the •effect that in an estate proceeding the only ■way land could be settled as far as the “estate w.as land, it would have to be called for hids. Apparently Victor was thinking ■of what would be the best way for him to have that property handled.”
Victor, however, testified that his father brought up the matter as they were going to Bottineau to buy groceries on Sept. 4, 1951. The situation at that time with regard to Ole, as far as the evidence shows, was that he was in such a condition that he had not been able to participate in any farming or business of any kind for at least two years before; that he had not made a business decision of any kind during those two years except to buy a cup of coffee, nor is there any indication that he could do so; that he had failed at times to recognize his children; that he could not take a part in any conversation about current affairs; that he would start a sentence, then stop because he forgot what he was going to say, and that he had shown no activity either physical or mental for at least two years before that time. That old man is now said to have all at once remembered a promise he had made some twenty years before, forgetting all of his other promises on the same matter, and without consultation or advice from any independent source, he is alleged to have been capable of making an $81,000 land deal, disinheriting his eleven children and leaving his property worth $81,000 to Victor, and that he, without talking it over with anybody, all at once insisted upon doing that.
“The law looks with suspicion upon voluntary transfers of property by persons mentally and physically infirm to those having custody of them.” Talbott v. Bedford, 53 S.W. 294, 295, 21 Ky. Law Rep. 897; Harvey v. Sullem, 46 Mo. 147, 2 Am.Rep. 491.
Victor claims that upon the suggestion by his father he took him to Attorney Adams where the deed was executed. To dispel any question of undue influence he could have taken him to his brother, Clifford, who lived in Bottineau, to talk this over but he did not do that.
Let us consider what the evidence shows happened in Mr. Adams’ office.
Mr. Adams is an elderly lawyer of undoubted integrity. Victor brought his father, Ole, into his office. He claims that Ole did all the talking- Mr. Adams testified that Ole “wanted the property to go to his son, Victor, but he wanted to retain some control over it at the same time.” Mr. Adams said: “So far as I remember he (Victor) had nothing to say.” Mr. Adams testified that he “suggested a joint tenancy deed which he had me draw.” There was no explanation of such a deed nor was Ole informed of his rights under it. Mr. Adams said he thought Ole had some papers with the description of the land. He did not remember sending Victor out for the description but Victor claims that he went to the county court house and got the description. Mr. Adams prepared the deed and Ole signed it. No witnesses were called. No other conversation between *233Adams and Ole or Victor is shown in the testimony. There is no showing that Ole read the deed or that it was read to him.
Mr. Adams said that Ole was exercising his own judgment “as far as he could tell” and that he does not remember that there was “anything particularly wrong with Mr. Johnson at the time.” There was, however, no examination by Mr. Adams of Ole to ascertain his condition and understanding of what he was doing. Mr. Adams testified that he had known Ole probably 20, 25 or 30 years, “think I used to campaign down there.” He had not done any other business for Ole. He was asked if it was not hard for him to recall years afterward what was said when a father and son would come into his office to have a document drawn up. Mr. Adams answered: “Yes, except that I happened to know that Ole was the king of the tribe and the children did not very often tell him what to do.”
“Q. That was very true in the old days, wasn’t it? A. Yes, it was.
“Q- Do you know whether that continued to be true after Ole was sick in the hospital in 1949? A. I don’t know. So far as I know I don’t remember knowing he was sick.
“Q. So that you did not notice a change in Ole from what Ole used to be before he was sick and what Ole was after he was sick? A. While I had not done business with him often said, ‘How do you do’ to him, acquainted and when met on the street would at least pass the time of day and say, ‘Hello.’ I saw no difference particularly-
“Q. You don’t recall seeing any particular difference in Ole Johnson from what you knew him, ten, fifteen, twenty years ago, and what he was in later years? A. No. I don’t.
“Q- And so your recollection of this conversation is largely based on your general knowledge of Ole as being the boss of the family? A. Well, I remember enough to know that he is one that told me what he wanted. I tried to accommodate him.”
That is all the testimony there is concerning the writing and execution of the deed in the case at bar. Mr. Adams says that the transaction took “possibly 20 minutes to a half hour.”
In three North Dakota cases cited in the majority opinion as authority for affirming the deed, the decision was largely based on the testimony of the attorney who drew the deed. That testimony was much stronger as to the competence of the grantor than in the case at bar. In Doyle v. Doyle, 52 N.D. 380, 385, 202 N.W. 860, 861, the testimony shows that the attorney whom the grantee had obtained to make the arrangements with his mother with regard to her land, “talked with her privately regarding the matter to ascertain her wishes, explained to her the difference in effect ot making a deed and making a will, and advised her against making a deed. She said, however, that she trusted her son, wanted him to have the land and she wished to make a deed.” A neighbor who had known her for many years was then sent for to witness this deed. “The testimony of both [the lawyer and the neighbor] is to the effect that Mrs. Doyle was advised as to the meaning and effect of the deed; that she seemed clear in her mind as to the explanation; that she expressed a desire to deed the land; that she personally delivered the deed to her son, knowing what she was-doing and intending what was done.” In Meyer v. Russell, 55 N.D. 546, 551, 214 N.W. 857, 859, the attorney “told Mrs. Russell that he had a deed for her to execute. He read the formal parts and when he came to the first description after reading it, Mrs. Russell said, ‘That was the Palace,’ and when he finished reading each description he asked Mrs. Russell if she understood and knew the property which she was conveying to her husband, and she would reply that she did. * * * After reading the deed, Mr. .Wood said to Mrs. Russell, ‘You are by this deed conveying the major*234ity of your property to your husband, is that what you want to do?' She said, ‘Yes, papa and I have talked it all over, and we have a complete understanding and that is what I want to do.’ ” In Lee v. Lee, 70 N.D. 79, 85, 292 N.W. 124, 127, the attorney “talked with the grantor, at some length, * * * and before the deeds were executed, he required [the grantees] to leave the office, and then he ‘explained the significance of the deeds to Mrs. Lee and asked her if that was her desire and she said that it was.’ ”
Nothing like that is shown to have been done in the instant case. While those cases laid down good law, that law was not applied to such evidence as we have in the case at bar.
Mr. Adams had known Ole and his activities when both were young and active. Since those days Mr. Adams’ acquaintance with Ole was only as he met him on the street. There is no testimony that Ole had changed in, appearance. Mr. Adams did hot know of the illness and mental change which the testimony showed had occurred in Ole. He had at the most only thirty minutes in which to observe Ole. That did not give Mr. Adams much time or opportunity to determine Ole’s competence. There is no question of Mr. Adams’ good faith. He was just treating Ole as he was during Mr. Adams’ acquaintance with him twenty or thirty years before. Mr. Adams was not asked for any advice. He was only asked to draw an instrument to carry out what appeared a predetermined decision. Mr. Adams simply took Ole’s mentality for granted, “Tried tó accommodate him,” drafted a deed in compliance with Ole’s request and,inserted therein the description Victor handed him. He was merely the scrivener. Nothing further in regard to whether Ole fully understood the transaction appears. There is no evidence of talk between Adams and Ole during the time Victor claimed he was away obtaining the description of the land. Mr. Adams admits he was then hard of hearing. The testimony shows that Ole was also hard of hearing. Conversation between them was undoubtedly difficult. The testimony of Mr. Adams as to Ole’s mental competence cannot be held sufficient to overcome the testimony heretofore quoted from plaintiffs’ witnesses who had the opportunity to watch Ole and form their opinion as to his mentality in daily association with him.
The result of the deed further indicates the exercise of undue influence on the vendor. Ole had been a successful farmer and all of his children helped him develop that enterprise as they were growing up and some of them much longer. Rosgard stayed with Ole and helped until he was 29 years old and worked with him in threshing for many years after that. Ole promised him a quarter section of land which he did not get. Then there was Melvin who was prevented by Victor from finding out if he would get the quarter that had been promised to him. To the other children Ole had given some old farm machinery, a cow or two or a little money to help them start and had promised some of them, like Mrs. Opdahl, that they would get something later. To Victor and Franklin, who were with him the longest, he had, ten years before, given a section of land. He showed how he loved all of his children and was interested in helping them and treating them fairly. All of the children kept up family visits, love and respect for their father. None of them tried to interfere in his business. One of them testified that they trusted Victor to handle the farm enterprise for Ole and the family. As long as they thought that they would not even think of the appointment of a guardian. There is fully as much love and affection shown between them and their father as between Victor and the father. Victor, however, said nothing to his brothers and sisters, and gave Ole no opportunity to talk to any of them about the disposition of his property before or after the deed was executed. Victor’s treatment of Melvin indicates he did not want them to be reminding his father of the promises made to them. Then he took Ole to Attorney Adams without giving Ole the chance *235to consult anyone else. The testimony of Mr. Adams discloses no such independent advice as is necessary to overcome evidence of undue influence. Davies v. Toms, 75 S.D. 273, 63 N.W.2d 406. The deed was executed depriving all of the other children of any interest in their father’s real property.
The evidence shows that the real estate involved was estimated to be worth $81,-000. That was all left to Victor by this deed. Victor also claims to own all of the machinery with which the farming was carried on. Ole’s other children, therefore, have no assurance of receiving anything of Ole’s estate. All of them as well as Victor had helped Ole accumulate all of that property. To some of them Ole had made promises indicating his intent to leave them something out of his property. Ole’s disposition of his real estate by means of this deed was inequitable and unfair. That was an unnatural disposition of his property by a father who had shown a great interest in all of his children. The execution of this deed, therefore, is a strong circumstance indicating use of undue influence by Victor on his father.
“Only slight direct evidence of undue influence is necessary where the circumstances surrounding the parties are such as to afford ready opportunity for its exercise, or where there is a gross inadequacy or total want of consideration. So, less evidence will be required where the grantor is physically weak and of such mental condition that control thereof is comparatively easy.” 26A C.J.S., Deeds, § 211, p. Ill; See also Mann v. Prouty, 37 N.D. 474, 490, 64 N.W. 139; Wilson v. Wilson, 246 Iowa 792, 68 N.W.2d 904; Wood-bury v. Woodbury, 141 Mass. 329, 5 N. E. 275, 55 Am.Rep. 479.
That certainly was the situation here.
All that Victor has shown to meet his burden of proof, aside from the visit to Mr. Adams, is his own testimony and that of his sister, Delia Mortenson, his nephew, Howard Johnson and Ervin Hegge that they could not see much mental deterioration in Ole after the 1949 stroke and that they thought he was still capable of doing business. That testimony is overcome by the testimony of seven of his brothers and one sister, Cecelia Opdahl, and of his neighbors and members of the town board. Granting that all the brothers and sisters are interested parties the testimony of the members of the Township Board and neighbors is without prejudice. Under their testimony Ole’s mental condition was such that he was incompetent to do any business after the 1949 stroke.
Victor, however, has made no showing that Ole, at any time, recovered from the mental condition described by the unprejudiced witnesses sufficiently as to be able to understand the transaction involved in the granting of that deed. There is no showing except Mr. Adams testimony that he appeared able to exercise his own judgment in regard to the effect of the deed or that he knew what he was doing when he executed the deed. And Mr. Adams limited that by saying, “So far as I could tell.” Before that statement Mr. Adams at the most had only the half hour observation of Ole and the memory of Ole as he existed some thirty years prior thereto. The inference from Mr. Adams’ testimony is that the memory weighed more with him than the thirty minute observation. Victor presented no evidence that Ole had any independent advice on the transaction or that Ole understood what he had done. The testimony discloses on the other hand that when Ole was in good health and knew what he was doing he intended to give some of his lands to some of the other sons. While the deed was recorded there is no evidence that the other children knew that. Victor admits that he never told them about it. When Winfred asked if everything was fixed, Victor admitted that it was and said he was figuring on giving each of the 'heirs $500. That indicates that Victor realized the distribution of the estate was not equitable. Even after Ole’s death Vic*236tor tried to keep it a secret. On the day of the funeral Winfred asked Victor if everything was made up. Victor said it was and that he would tell Winfred if he would keep it secret for a few days. Winfred would not promise that. Ole’s past promises and actions towards his children indicate that he was going to consider them all in the final disposition of his property. Victor has failed to maintain his burden of showing that Ole acted voluntarily and knew the effect of the deed. He has made no showing that he did not exercise undue influence on Ole. Victor’s own actions point the other way.
While in cases of this kind where .some equities on each side are involved there may be some injustice done to whichever side is held the loser. The only way to avoid that would be for the parties to settle amongst themselves as a family should.
It seems to me, however, that the greater equity is with the plaintiffs. They all helped to build up this property and will receive very little, if anything out of it, in the event this deed is held good. Victor stayed with his father and worked entirely for him longer than anyone else and at a time when Ole most needed the help. He has, however, received more out of the estate, aside from this deed, than anyone else. He received a section of land in joint ownership with Franklin. Then while Victor was running the farm for his father the proceeds of the farm were put in a joint account. Out of those proceeds much of the machinery now on the farm was bought. Victor is now claiming that machinery which is a large part of the $29,-083.50 inventoried as the personal estate of Ole. There was $3,200 in that account when Ole died. Victor’s share over the expenses of the farm enterprise could be considered as wages for his services. Out of that he bought not only his airplane but a quarter section of land. That the plaintiffs agreed to his keeping that land is indicated by the fact that when this action was first brought that land was included in the complaint. At the trial, however, that land was withdrawn from the complaint so that no claim was made by the plaintiffs to ownership thereof.
Considering the evidence carefully I have come to the conclusion that Ole’s mentality was affected by his illness; that Victor exercised undue influence over him at the time of the execution of the deed. That there is not sufficient showing that the deed was executed by Ole as a free and voluntary act with full knowledge of its nature and effect. My opinion, therefore, is that the deed for which this action was brought is void and should be set aside.