(dissenting).
I concur in the dissent written by Chief Justice GRIMSON.
Ole Johnson, the grantor in question had suffered two strokes, one in January 1948 and one on April 23, 1949. After the second stroke he was hospitalized until May 26, 1949 and in February 1950.
Prior to these strokes Ole Johnson had been a very active and energetic man of strong character and independent judgment. He had conducted his business of farming very successfully and had acquired approximately 1,800 acres of land. He had also been active in public and civic affairs and had been a member of the township board for a number of years, — in fact he was considered “the king pin” in his community. However after suffering the strokes referred to he progressively lost interest in public affairs, and at the township meeting's he would fall asleep and leave the work and decisions to the other members of the board.
His wife died in 1941, but he continued to live on his farm together with Victor his youngest son who was unmarried, and they continued to live together until Ole’s death. The other children stayed with Ole on the farm until they started out for themselves, and some of them continued to help their father with his farm work without *237receiving any wages. The evidence shows that the relationship between Ole Johnson and all his children had at all times been friendly and congenial.
On September 4, 1951, Ole Johnson and his son Victor went to the City of Botti-neau where Ole wished to see Mr. Adams, a practicing lawyer in that city. According to the evidence Ole wanted a deed drawn in such a way that his son Victor, upon Ole’s death, would become the owner of all his land consisting of nearly 1,800 acres of the value of $81,000. However, Ole wished to have some control over it. Mr. Adams recommended a joint tenancy deed with the right of survivorship, and such a deed was drawn by Mr. Adams running to Ole and Victor as joint tenants with right of survivorship, which deed was accordingly executed by Ole and delivered to Victor. Ole did not remember the description of the land, and while he waited in Mr. Adams’ office Victor went to the court house and procured the description of the land. Victor filed the deed for record on September 6, 1951, but he did not say anything to his brothers and sisters about this transaction.
It is the contention of the plaintiffs, brothers and sisters of Victor, that their father was mentally incompetent when the deed in question was executed; that undue influence had been exerted upon him by Victor. After Ole had the second stroke in 1949, Victor had charge of all the farming operations, sold the grain produced on the farm, paid all the expenses and made all decisions as to what was to be done in and about the farm, his father having given him full control of its management. There was therefore a confidential relationship between Ole and Victor which had developed over a period of some eleven or twelve years when the two lived together on the farm.
The question is therefore whether Victor during his close association with his father had taken advantage of his father’s confidence in him and by undue influence obtained the deed to all of his father’s land. The evidence shows that the strokes suffered by Ole Johnson left him in a weakened physical and mental condition. The medical testimony in the record shows that the strokes suffered by Ole Johnson in 1948 and 1949 were caused by arteriosclerosis, that is hardening of the arteries resulting in hypertensity or high blood pressure. Dr. Melvey who was called when Ole had the first stroke testified for the defendant at the trial. He stated that Ole was suffering from hypertension and high blood pressure, had episodes of severe headaches, diplopia, double vision. He stated that he thought that Ole “was adequate mentally except for periods when his blood would rise and he would have very severe headaches.” On cross examination Dr. Melvey testified as follows:
“Q. Will you describe what the effect on the brain tissue is from this hardening of the arteries and high blood pressure? A. Yes, when the pressure gets up quite high the brain gets nourishment but only at a terrific effort on the part of the heart and the vascular system as a whole. In addition to hardening of the arteries there is a spasm and as a result generally we have headaches of rather severe degree.
“Q. And is there a deterioration of brain tissue? A. Yes, depend on degree of hardening of arteries, there is gradual shutting off of blood supply to various parts of the brain, perhaps two or three millimeter of the brain cortex may be deprived of its food and various mental changes will take place.
“Q. Now will you explain a stroke and its connection with these other conditions that yqu have identified? A. Stroke is usually a hemorrhage— these vessels are brittle and when subjected to high pressure they rupture and depending on the size of the vessel you have a serious or not so serious condition.
*238“Q. Is this rupture of blood vessel in the brain? A. Yes
“Q. And that rupture resulted in what you call a stroke? A. Yes.
“Q. And I take it the more strokes a person suffers the greater is the destruction of the arteries in the brain? A. Yes.
“Q. And does that have any effect on mental capacity? A. Yes.
“Q. In other words, his mental capacity will deteriorate as strokes recur? A. Yes.”
Dr. Robert Johnson, a practicing physician and surgeon at Bottineau, North Dakota was called as a witness by the plaintiffs. He had not treated Ole Johnson. His testimony was given in response to hypothetical questions propounded by plaintiffs’ counsel reciting the medical history as testified to by Dr. Melvey. Dr. Johnson discussed the effects of hypertensity, hardening of the arteries, arteriosclerosis, and their effect upon the brain and mental capacity of the patient. He stated that “this man (Ole Johnson who was 87 or 88 years old when he had the first stroke) had an apparently advanced arteriosclerosis which would be characteristic of a man of that age, which condition accelerated or speeded up the process of hardening of arteries and narrows the opening of the arteries so that blood supply to the brain is insufficient — can be speeded up in presence of high blood pressure.” He stated further that “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, once destroyed never grow new brain cells. Therefore, when he had a portion of brain cells destroyed that would never return.” He was then asked: “Would that condition affect a man’s business capacity to look after his business affairs? Yes, very much.”
It clearly appears from the testimony of the two physicians that Ole Johnson’s mental as well as physical condition had deteriorated considerably after he suffered the strokes in 1948 and 1949. All of the farm management was left to his son Victor. There can be no doubt that Victor exerted a great deal of influence over his father and that his father was susceptible to such influences. Victor never consulted with his brothers and sisters with reference to their father’s property or business affairs. When the arrangements were made for the transfer to him of all of his father’s land he never told them about it, but kept the transaction secret until after his father’s funeral, and even then was reluctant to tell them about it. It is clear from the evidence that after Ole Johnson had the two strokes he took no part in operating the farm or in any business connected therewith; everything was left entirely to Victor. In view of Ole’s weakened mental condition it was the duty of Victor to act in utmost good faith, not only so far as the interest of his father was concerned but also with reference to the interests of his brothers and sisters. In 26 C.J.S., Deeds, § 62, pp. 768-769 the rule applicable in such cases is thus stated: -
“It is a fundamental rule of law relating to deeds that while age or physical and mental infirmity does not of itself show that the deed of a grantor suffering from such physical and mental infirmity was the product of undue influence, yet when such facts appear the suspicions of equity are aroused, and where found in conjunction with other matters indicating imposition that may show undue influence, transactions under such circumstances will be scrutinized with great care in courts of equity.
“While a deed may be canceled, because procured by undue influence, although executed by a person of sound mind, and raising of the issue of undue influence presupposes sufficient mental capacity to execute a valid deed, the mental power or condition of the grantor is a proper factor for consideration *239in determining whether or not his deed was a product of undue influence; and, if there is a reason to believe that influence has been acquired over a person ■of weak mind, the transaction will be carefully scrutinized in equity. Under the rule that the essence of undue influence is that the victim is rendered incapable of acting on his own motives, as discussed supra subdivision a(l) of this section, it has been held that a weak mentality is implied.
“A deed secured by influence which was undue as applied to a mentally weak grantor will be invalid, as where age and infirmity combine with inequitable circumstances to show undue influence; and, where the maker of a deed is so reduced by mental and physical weakness as to become the mere passive agent of the dominating will of another in executing the instrument, it may be regarded as the product of undue influence.”
Likewise in 16 Am.Jur., Deeds, Sec. 40, pages 462, 463, it is stated:
“The existence of a family or a confidential or quasi-confidential relationship between the grantor and the grantee in a deed is an important factor in determining the presence of undue influence in the execution of the deed, especially as it appears that the beneficiary was in honor bound to prefer the interests of the donor to his own. Such relationship exists between the grantor and grantee where the latter is the grantor’s spiritual adviser or where he professed to be a spiritualistic medium. It exists also between husband and wife, a woman and her affianced husband, parent and child, or a child and a person in loco parentis, guardian and ward, brother and sister, attorney or other legal adviser and client, physician and patient, banker and customer, and principal and agent.
“It is often said that courts of equity regard conveyance between children and their parents as objects of jealousy or that such conveyance will be watched with a jealous, critical, or searching eye. In other words, the circumstances attending such a transaction will be vigilantly and carefully scrutinized by the court to ascertain whether there has been undue influence in procuring it. But the fact of the relationship -does not necessarily prove undue influence. Affection, confidence, and. gratitude between a parent and a child which inspire a gift from one to' the other will not render the gift voidable, unless some improper influence has been so used as to confuse the judgment and control the will of the donor.”
See also Peterson v. Mitchener, 79 Ohio App. 125, 71 N.E.2d 510.
The medical testimony in the record shows Ole Johnson’s mental capacity deteriorated progressively after he suffered the two strokes; and because of the nature of the ailment and his advanced age there was no hope of any improvement in his condition. He certainly was not in condition mentally to realize that by the deed in question he transferred all of his land, valued at $81,000 to one of his children to the entire exclusion of all of his other children. It does not appear that he had had opportunity to discuss the matter of this transfer with anyone, except Victor, nor were the other children mentioned when Victor and his father were in the office of Mr. Adams where the deed was drawn, executed, and delivered to Victor. There was at the time a confidential relationship between Victor and his father, and he was in duty bound to exercise the utmost good faith in any transaction which took place between them.
If Victor had acted openly, fairly, and honestly, there would have been no occasion to keep his sisters and brothers in the dark, as to the execution of the deed. But he was interested in a transfer to himself of *240land of the value of $81,000 in which, under the laws of succession, they would be entitled to their just share upon their father’s death. The legitimate inference from his conduct is that he knew he was taking an undue advantage of them and that he felt the better part of wisdom was to keep them in ignorance of the facts. The procurement by Victor of the deed to all of his father’s land, and his effort to conceal the transaction from his sisters and brothers savors strongly of bad faith.
The judgment of the district court should be reversed.