Owen, J.
We shall not consider whether the quitclaim deed of October 7th was procured by fraud or undue influence, because we are convinced that the settlement of February 22d must stand, and the fraudulent character of the transaction of October 7th accordingly becomes immaterial.
The findings of the court are replete with recitals of mere evidentiary matters, and it is difficult to understand upon what ultimate fact the trial judge based his conclusion that the settlement of February 22d was obtained by fraudulent representations. ^ If it can be sustained at all, it must be by virtue of the following, quoted from the findings:
“On said day Horace falsely and fraudulently misrepresented to the said Richard that the latter’s share did not amount to $12,000, but amounted only to $10,000; that the litigation would be very expensive and entail heavy costs; that if the case went to the supreme court, depositions or affidavits could not be used there, but that Richard and the witnesses would have to appear personally before the supreme court; that the sheriff would have to come from Iowa county to Oxford, Nebraska, to subpoena the witnesses, [177]*177and that after attorney’s fees, witness fees, railroad fares, and' court costs were paid, Richard would not have more than $6,000. Horace exhibited a paper with a number of figures on it, and insisted that Richard’s gross share was only $10,000, when in fact it is $12,000.”
The only portion of that recital which can be said to constitute the misrepresentation of an existing material fact is this: Horace exhibited a paper with a number of figures on it and insisted that Richard’s gross share was only $10,000, when in fact it is. $12,000. The figures referred to were taken from the order of the court confirming the sale, and-it is not disputed that they were correct. But it is difficult to-see how this incident could form the basis of a material misrepresentation. It may be conceded that he argued from the figures presented that Richard’s share is only $10;000, when in fa.ct it is $12,000. But this was only an interpretation of that portion of the court’s order, and such interpretation was neither believed nor relied on by Richard. When asked if he relied on this representation, Richard’s answer was “No siree.” The talk about court costs and what would ultimately be left did not constitute a. misrepresentation of existing v facts. It was nothing but “dealers’ talk,” so to speak, and there is not the slightest reason to believe that it influenced Richard’s action in making the settlement.
Coming to the question of undue influence, the finding of the court is as follows:
“I find that Richard is ‘a man past seventy-eight years of age. He is very deaf. He is in failing health, mentally weak, easily influenced, and incompetent to enter into a transaction of any importance. For many years he has suffered from rheumatism and kidney trouble. He has had a number of fainting spells, and has at times become suddenly -dizzy and unconscious. His memory is poor. He is at times unable to recall from day to day recent happenings. He is easily excited, decidedly eccentric, quite nervous, and singularly susceptible to influence. He is a man of practically no education, has had very little business experience, and is not conversant with the ways of the world. Richard [178]*178has very little property. He has four children of his own and a stepson, all of whom are in poor circumstances.
“I find that Horace is a man sixty-three years old. He is in good health, and is a shrewd business man. He owns a farm of 400 acres in Iowa county, Wisconsin, is a director in the Cobb State Bank, and has been engaged in farming and handling stock, and has transacted a great deal of business. When he was a boy he went to school at different places and for a time attended the Mineral Point high school. Horace impresses me as a man of strong will and a person who is far superior to Richard in intelligence, and one disposed to exert undue influence upon Richard for the purpose of securing an undue advantage over the latter; and that he did exercise and exert an undue influence over Richard in inducing the latter to execute the deed and assignment on October 7th and the so-called settlement paper on February 22d; that Richard did not understand or comprehend either transaction.”
A consideration of this branch of the case will require a discussion to some extent of the evidence which it is urged justifies the finding, and in this connection it should be said that Richard did not appear in court as a witness upon the trial of the action; his evidence, as well as that of the witnesses who testified in his behalf, having been submitted in the form of depositions, so that the trial court did not have the usual advantage over this court in meeting the witnesses face to face. His impressions as to character, etc., the same as ours, must result from' a consideration of the printed word. At the outset, we have no quarrel with the suggestion that Horace was a man disposed to exercise undue influence if by so doing he could further his own interests. Whether the conduct of Horace in procuring the deed of October 7th, by which, for $400, he secured property of the value of from $10,000 to $12,000, can be condemned in law, the motives which prompted him to accept the fruits of that transaction were extremely selfish, and fall far short of the standard set by the Golden Rule or considerations of becoming brotherly conduct. So far as his [179]*179part in that transaction is concerned, whether it can be condemned in law, it falls far short of good morals. But we are dealing now solely with the transaction of February 22d and the question of whether Richard’s acquiescence in the settlement of that date was the result of undue influence. While not denying the disposition of Horace to exercise undue influence for the accomplishment of his purposes, we are strongly impressed that Richard was not susceptible thereto.
When Horace first learned that Richard contemplated bringing an action to set aside the deed of October 7th he sent his attorney, Mr. McGeever, to Oxford for the purpose of securing a settlement with Richard. This was on February 6th. Mr. McGeever spent practically an entire day with Richard in discussing the matter. While Mr. Mc-Geever no doubt employed nothing but legitimate argument and honorable means to bring about a settlement, we may believe that the cause of Horace was forcibly and persuasively presented to Richard and that cogent reasons were urged upon him for making the settlement which Mr. Mc-Geever then proposed. We find that in this interview Richard was abundantly able to take care of himself and his own interests, and that he was by no means a child or a man easily handled or influenced. To each of the propositions put forward by Mr. McGeever, to quote Richard’s own testimony, the reply was, “Nothing doing.” McGeever having failed to arrive at an understanding with Richard, Horace himself went there on the 22d day of February, 1919. At no time was Horace alone with Richard. The matter was discussed in the house in the presence of Richard’s daughter and her husband, and the testimony is that Richard conducted the discussion in. his own behalf.
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Owen, J.
We shall not consider whether the quitclaim deed of October 7th was procured by fraud or undue influence, because we are convinced that the settlement of February 22d must stand, and the fraudulent character of the transaction of October 7th accordingly becomes immaterial.
The findings of the court are replete with recitals of mere evidentiary matters, and it is difficult to understand upon what ultimate fact the trial judge based his conclusion that the settlement of February 22d was obtained by fraudulent representations. ^ If it can be sustained at all, it must be by virtue of the following, quoted from the findings:
“On said day Horace falsely and fraudulently misrepresented to the said Richard that the latter’s share did not amount to $12,000, but amounted only to $10,000; that the litigation would be very expensive and entail heavy costs; that if the case went to the supreme court, depositions or affidavits could not be used there, but that Richard and the witnesses would have to appear personally before the supreme court; that the sheriff would have to come from Iowa county to Oxford, Nebraska, to subpoena the witnesses, [177]*177and that after attorney’s fees, witness fees, railroad fares, and' court costs were paid, Richard would not have more than $6,000. Horace exhibited a paper with a number of figures on it, and insisted that Richard’s gross share was only $10,000, when in fact it is $12,000.”
The only portion of that recital which can be said to constitute the misrepresentation of an existing material fact is this: Horace exhibited a paper with a number of figures on it and insisted that Richard’s gross share was only $10,000, when in fact it is. $12,000. The figures referred to were taken from the order of the court confirming the sale, and-it is not disputed that they were correct. But it is difficult to-see how this incident could form the basis of a material misrepresentation. It may be conceded that he argued from the figures presented that Richard’s share is only $10;000, when in fa.ct it is $12,000. But this was only an interpretation of that portion of the court’s order, and such interpretation was neither believed nor relied on by Richard. When asked if he relied on this representation, Richard’s answer was “No siree.” The talk about court costs and what would ultimately be left did not constitute a. misrepresentation of existing v facts. It was nothing but “dealers’ talk,” so to speak, and there is not the slightest reason to believe that it influenced Richard’s action in making the settlement.
Coming to the question of undue influence, the finding of the court is as follows:
“I find that Richard is ‘a man past seventy-eight years of age. He is very deaf. He is in failing health, mentally weak, easily influenced, and incompetent to enter into a transaction of any importance. For many years he has suffered from rheumatism and kidney trouble. He has had a number of fainting spells, and has at times become suddenly -dizzy and unconscious. His memory is poor. He is at times unable to recall from day to day recent happenings. He is easily excited, decidedly eccentric, quite nervous, and singularly susceptible to influence. He is a man of practically no education, has had very little business experience, and is not conversant with the ways of the world. Richard [178]*178has very little property. He has four children of his own and a stepson, all of whom are in poor circumstances.
“I find that Horace is a man sixty-three years old. He is in good health, and is a shrewd business man. He owns a farm of 400 acres in Iowa county, Wisconsin, is a director in the Cobb State Bank, and has been engaged in farming and handling stock, and has transacted a great deal of business. When he was a boy he went to school at different places and for a time attended the Mineral Point high school. Horace impresses me as a man of strong will and a person who is far superior to Richard in intelligence, and one disposed to exert undue influence upon Richard for the purpose of securing an undue advantage over the latter; and that he did exercise and exert an undue influence over Richard in inducing the latter to execute the deed and assignment on October 7th and the so-called settlement paper on February 22d; that Richard did not understand or comprehend either transaction.”
A consideration of this branch of the case will require a discussion to some extent of the evidence which it is urged justifies the finding, and in this connection it should be said that Richard did not appear in court as a witness upon the trial of the action; his evidence, as well as that of the witnesses who testified in his behalf, having been submitted in the form of depositions, so that the trial court did not have the usual advantage over this court in meeting the witnesses face to face. His impressions as to character, etc., the same as ours, must result from' a consideration of the printed word. At the outset, we have no quarrel with the suggestion that Horace was a man disposed to exercise undue influence if by so doing he could further his own interests. Whether the conduct of Horace in procuring the deed of October 7th, by which, for $400, he secured property of the value of from $10,000 to $12,000, can be condemned in law, the motives which prompted him to accept the fruits of that transaction were extremely selfish, and fall far short of the standard set by the Golden Rule or considerations of becoming brotherly conduct. So far as his [179]*179part in that transaction is concerned, whether it can be condemned in law, it falls far short of good morals. But we are dealing now solely with the transaction of February 22d and the question of whether Richard’s acquiescence in the settlement of that date was the result of undue influence. While not denying the disposition of Horace to exercise undue influence for the accomplishment of his purposes, we are strongly impressed that Richard was not susceptible thereto.
When Horace first learned that Richard contemplated bringing an action to set aside the deed of October 7th he sent his attorney, Mr. McGeever, to Oxford for the purpose of securing a settlement with Richard. This was on February 6th. Mr. McGeever spent practically an entire day with Richard in discussing the matter. While Mr. Mc-Geever no doubt employed nothing but legitimate argument and honorable means to bring about a settlement, we may believe that the cause of Horace was forcibly and persuasively presented to Richard and that cogent reasons were urged upon him for making the settlement which Mr. Mc-Geever then proposed. We find that in this interview Richard was abundantly able to take care of himself and his own interests, and that he was by no means a child or a man easily handled or influenced. To each of the propositions put forward by Mr. McGeever, to quote Richard’s own testimony, the reply was, “Nothing doing.” McGeever having failed to arrive at an understanding with Richard, Horace himself went there on the 22d day of February, 1919. At no time was Horace alone with Richard. The matter was discussed in the house in the presence of Richard’s daughter and her husband, and the testimony is that Richard conducted the discussion in. his own behalf. Fie says he was half sick and half mad. This is a very natural temper for a brother to be in under the circumstances. Horace produced the figures that he had taken from the court’s order, and from them attempted to convince Richard that his interest was only $10,000. Now Richard had never seen these [180]*180figures before and knew nothing about them, but he was sufficiently intelligent and awake to point out to Horace that according to those figures his share was $12,000, and his otvn testimony is to the effect that he neither believed nor relied upon what Horace said in this particular. They talked for the greater part of a day, and Richard remained immovable. Horace made no impression upon him, and, feeling that further discussion was useless, he started to go. Then it was that 'the daughter of Richard spoke to her father and said: “He is going to go. Now you better make up your mind.” From this circumstance it is quite evident that the daughter felt that he ought to make a settlement, but Horace was about to go, and she was solicitous lest he should leave and the opportunity to settle go with him. She had been a listener to the entire discussion. She had neither taken part in it nor coached her father. Neither had her husband. They no doubt had an interest in Richard and an interest in the controversy, yet they felt he was entirely competent to cope with the situation and did not intrude. He yielded neither to the arguments, persuasion, or influence of Horace, but stood firmly until Horace was about to go, when, at the suggestion of his daughter, he said to Horace: “Now what is your best proposition?” Horace said: “You have already had $400. I will give you $5,600 more, making $6,000 in all,” and Richard promptly said, “I will take you up.”
Now this is the sum and substance of what occurred, according to the testimony of Richard, his daughter, and her husband, and from it we find no basis for a conclusion, which must rest upon clear and satisfactory evidence, that Richard was induced to make the settlement because of undue influence exercised upon him by Horace. A perusal of his deposition does not picture him as a weak and - childlike man. On the contrary, it gives the impression of intelligence and self-reliance. He shows a ready and unusual understanding of the questions asked. His answers are [181]*181prompt, terse, and straight to the point, and at times give evidence of most remarkable memory, especially as to details. His own testimony is:
“I was in sound mind on February 22d and I understood what this Exhibit B was [the release] ; I knew what it was that I was signing; I did it of my own free will. Horace did not threaten me if I did not sign this; he did not force me to sign it; he did not. deceive me into signing this on February 22d. My decision to accept $5,600 came after a conversation with my daughter.”
What is this if not a deliberate assertion of his competency and a denial of any unfair dealing on the part of Horace? His daughter said:
“He seemed to be relieved after this signing; he said he was glad it was settled, although he did not consider it just. I consider that sometimes father may be competent to transact business involving an amount of $10,000 or $12,000, but I do not know whether he was competent to transact such business on the 7th day of October. I would not testify that he was not. On the 22d day of February he seemed to be competent to transact such business. By saying not competent at all times I mean that there are times when he is absent-minded and not feeling well, don’t seem to really realize everything as he should; but he was not in that condition on either the 7th day of October, 1918, or the 22d day of February, 1919, that I know of.”
The findings of the court with reference to his physical infirmities bear little relation to his mental competency or his power to withstand influence. The same or similar findings could be made with reference to the average man of seventy-eight years of age, and it seems to us that they should be accorded very little significance in determining the question of his susceptibility to influence.
More than this, we are impelled to say that, in our opinion, the terms of settlement raise no suspicion of undue influence. We are impressed that Richard made a settlement that was satisfactory to him and that his bargain was not a bad one. On the day after Mr. McGeever returned [182]*182from Oxford, Mrs. Burton, the daughter of Richard, with whom he was living, wrote to her Uncle Horace, referring to the visit of his attorney the day before, in which she said: “Father says for me to tell you that if you will send $4,600 to the Security State Bank at Oxford for him he will settle. You are to pay all expenses also.” Here we have a well-considered proposition coming from Richard following a discussion with Mr. McGeever, after opportunity for reflection and consideration. Certainly that offer was not the subject of misrepresentation or undue influence. When Horace came out to see him the matter was argued fully. He met argument with argument. Fie stood his ground to the last, and when Horace had despaired of arriving at a settlement and was about to go Richard called for his best offer, and, upon receivitig it, promptly accepted. We must remember that it was not a gilt-edged promissory note or a government bond of the value of $12,000 that he was compromising for $6,000. Fie had given a deed which he was seeking to impeach for fraud and undue influence; that he would succeed was certainly a matter of some doubt. He knew the facts and circumstances surrounding the execution of the deed better than any one else. He was in a position to bring rugged common sense to bear upon the facts as he knew them and to arrive at an intelligent layman’s conclusion in the premises. He might well have preferred the $6,000 in cash to the uncertain prospects of a $12,000 lawsuit, the fruits of which he might not live to enjoy. He was a man seventy-eight years of age. A stubborn legal contest stood between him and recovery. He lived many hundred miles from the place of trial. There would be months of worry and anxiety. He was at law with his brother. Conceding that he felt the justice of the causé, we but recognize the ordinary instincts of human nature when we attribute to him a desire to have the matter settled and over with. His daughter said: “He seemed to be relieved after this signing; -he said he was glad it was [183]*183settled, although he did not consider it just.” • Who can say that it is not a settlement that would have been made by a man of the strongest faculties, in view of the circumstances which then confronted Richard? That it is an unreasonable settlement is not obvious, to our minds.
It is claimed that the settlement is void because it was made in the absence of Richard’s attorneys. Watkins v. Brant, 46 Wis. 419, 1 N. W. 82 Bussian v. M., L. S. & W. R. Co. 56 Wis. 325, 14 N. W. 452; Voell v. Kelly, 64 Wis. 504, 25 N. W. 536; and Konrad v. Zimmermann, 79 Wis. 306, 48 N. W. 368, are cited to sustain the proposition. These cases do not go to the extent of impeaching a settlement made between brothers, where the transaction is as free from the taint of unfair dealing as here. The law favors amicable adjustments of controversies, and family disagreements constitute no exception to- the rule. All society deplores family quarrels. Amicable adjustments, reconciliations, and restorations of family ties should be sincerely encouraged. Courts should endeavor to preserve rather than seek to destroy the fruits of brotherly conference and adjustment.
To impeach this settlement requires clear and satisfactory proof of unfair dealing. The evidence falls far short of this quantum. We feel satisfied that the findings of the trial court are against the preponderance of the evidence. Richard should be denied the relief prayed for, and the rights of the parties should be left as determined in the order of November 25, 1918.
By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment in accordance with this opinion.
Siebecker, J., dissents.