McCARTY, J.,
after stating the facts, delivered the opinion of the court.
We have made a thorough and critical examination of the record in this case, and fail to- find any evidence that even tends to support the findings that plaintiff was induced to 1 make the deed because of some delusion she was laboring under respecting her duty to her little three-year-old grandchild. In fact, the record affirmatively shows the contrary to be the case-. Plaintiff testified on this point as follows: “I did .hot -think about conveying my land, or any part of [375] it, to the child. The thought never came to my mind after this occurence I have mentioned, and before this day that 1 went to Lewis’ office the thought did not come into my mind about giving part of my land to this child.” And again she •says: “I did not say anything to Mr. Lewis, whether I would give part of my land to this child. No more was mentioned of the child.” True, the record shows that on several occasions the little boy came into plaintiff’s room and asked her if he could come 'and live with her, but the record does not disclose a single fact or circumstance that even suggests it was anything more than the innocent prattle of the child. It is evident that the plaintiff so regarded it, as shown by her testimony on this point, which is as follows: “That eircum-stapee did not influence me to pay particular attention to the child and to have him in my mind. This incident — the child coming in and talking to me — did not influence me to think more of the child. I never' thought anything about it. There was no circumstance that caused me to think particularly about the child, or care for him.”
Counsel both for plaintiff and defendants have devoted much space in their briefs to the discussion of the question as to when and under what circumstances a party may and may not avoid a contract entered into while laboring under a delusion; but, as the record shows affirmatively and conclusively that plaintiff was not induced or in any way influenced to execute the deed in question because of any delusion or aberration of the mind on her part, it is unnecessary for us. to either discuss or express an opinion on this subject.
Respondent contends, and the court, in effect, found, that there was a failure of consideration on the part of the defendants, because of their neglect to give plaintiff the 2 kind treatment, care, and attention they promised before and at the time the deed was executed. It is conceded that defendants have complied with and performed every obligation required of them by the provisions of the lease that [376] was made and executed at the time of the delivery of the deed. Plaintiff testified that, when she was sick and unable to care for herself and do her own cooking, her daughter Mrs. Moser provided her with food; and she only refers to one instance wherein she was dissatisfied with what was furnished her, and that was a piece of meat that was not to her liking;. We think the testimony wholly insufficient to sustain a finding of failure of consideration.
The controlling questions, and those that are decisive of this case, are, first, did the plaintiff, at the time she made the deed, have the mental capacity to act and to understand and appreciate what she was doing? and, second, was she unduly influenced to such an extent that her free agency was destroyed ?
The record shows conclusively that, at the time the deed was made, plaintiff was in possession and in full control of her mental faculties. She knew and understood what she 3 was doing, and was in every respect competent to act for herself. She had the -advice and assistance of a competent and reliable attorney, wbo took pains to explain to her what the legal effect of the act of deeding away hep property would be. The attorney was called, and, in part, testified, as follows: “I informed Mrs. Chadd, and she was well acquainted with the contents of the deed before she signed it. There is not any question or mistake about that fact. In that interview she seemed to understand what was said and what was done there. . . . She seemed to be posted, and her faculties were sufficient to- understand what was going on and what took place.” John Clark, who at the time was mayor of Salt Lake City, testified that he had known plaintiff for many years, and that the parties called to see him on the day and after the deed was made, and that, in talking •about tbe transaction, plaintiff “was rational, and comprehended things that were said and done, and was capable of understanding them; that she took part in the conversation [377] In a very rational and satisfactory mannen; and that she appeared to understand all that had been done and said. There was nothing at all' about her in any way that wais unusual or out of the ordinary.” Some six or seven other witnesses testified to facts showing plaintiff’s capacity to' act for herself. In fact, there is no evidence whatever to the contrary, except the sweeping statement of plaintiff, made at the trial, that she was “crazy” and did not know what she was doing. The only evidence introduced that tends to support the contention of want of capacity on the part of plaintiff is that she was aged, in ill health, and very much enfeebled. But want of capacity to contract will not be presumed because of old age or physical infirmities. Delaplain v. Grubb 4 (W. Va.), 30 S. E. 201, 67 Am. St. Rep. 788; Dickerson v. Evans, 84 Ill. 451; Orr v. Pennington, 93 Va. 268, 24 S. E. 928; Sullivan v. Hodgkin (Ky.), 12 S. W. 773; Crowe v. Peters, 63 Mo. 429; Shea v. Murphy, 164 Ill. 614, 45 N. E. 1021, 56 Am. St. Rep. 215; Davis v. Latta (Iowa), 62 N. W. 17.
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McCARTY, J.,
after stating the facts, delivered the opinion of the court.
We have made a thorough and critical examination of the record in this case, and fail to- find any evidence that even tends to support the findings that plaintiff was induced to 1 make the deed because of some delusion she was laboring under respecting her duty to her little three-year-old grandchild. In fact, the record affirmatively shows the contrary to be the case-. Plaintiff testified on this point as follows: “I did .hot -think about conveying my land, or any part of [375] it, to the child. The thought never came to my mind after this occurence I have mentioned, and before this day that 1 went to Lewis’ office the thought did not come into my mind about giving part of my land to this child.” And again she •says: “I did not say anything to Mr. Lewis, whether I would give part of my land to this child. No more was mentioned of the child.” True, the record shows that on several occasions the little boy came into plaintiff’s room and asked her if he could come 'and live with her, but the record does not disclose a single fact or circumstance that even suggests it was anything more than the innocent prattle of the child. It is evident that the plaintiff so regarded it, as shown by her testimony on this point, which is as follows: “That eircum-stapee did not influence me to pay particular attention to the child and to have him in my mind. This incident — the child coming in and talking to me — did not influence me to think more of the child. I never' thought anything about it. There was no circumstance that caused me to think particularly about the child, or care for him.”
Counsel both for plaintiff and defendants have devoted much space in their briefs to the discussion of the question as to when and under what circumstances a party may and may not avoid a contract entered into while laboring under a delusion; but, as the record shows affirmatively and conclusively that plaintiff was not induced or in any way influenced to execute the deed in question because of any delusion or aberration of the mind on her part, it is unnecessary for us. to either discuss or express an opinion on this subject.
Respondent contends, and the court, in effect, found, that there was a failure of consideration on the part of the defendants, because of their neglect to give plaintiff the 2 kind treatment, care, and attention they promised before and at the time the deed was executed. It is conceded that defendants have complied with and performed every obligation required of them by the provisions of the lease that [376] was made and executed at the time of the delivery of the deed. Plaintiff testified that, when she was sick and unable to care for herself and do her own cooking, her daughter Mrs. Moser provided her with food; and she only refers to one instance wherein she was dissatisfied with what was furnished her, and that was a piece of meat that was not to her liking;. We think the testimony wholly insufficient to sustain a finding of failure of consideration.
The controlling questions, and those that are decisive of this case, are, first, did the plaintiff, at the time she made the deed, have the mental capacity to act and to understand and appreciate what she was doing? and, second, was she unduly influenced to such an extent that her free agency was destroyed ?
The record shows conclusively that, at the time the deed was made, plaintiff was in possession and in full control of her mental faculties. She knew and understood what she 3 was doing, and was in every respect competent to act for herself. She had the -advice and assistance of a competent and reliable attorney, wbo took pains to explain to her what the legal effect of the act of deeding away hep property would be. The attorney was called, and, in part, testified, as follows: “I informed Mrs. Chadd, and she was well acquainted with the contents of the deed before she signed it. There is not any question or mistake about that fact. In that interview she seemed to understand what was said and what was done there. . . . She seemed to be posted, and her faculties were sufficient to- understand what was going on and what took place.” John Clark, who at the time was mayor of Salt Lake City, testified that he had known plaintiff for many years, and that the parties called to see him on the day and after the deed was made, and that, in talking •about tbe transaction, plaintiff “was rational, and comprehended things that were said and done, and was capable of understanding them; that she took part in the conversation [377] In a very rational and satisfactory mannen; and that she appeared to understand all that had been done and said. There was nothing at all' about her in any way that wais unusual or out of the ordinary.” Some six or seven other witnesses testified to facts showing plaintiff’s capacity to' act for herself. In fact, there is no evidence whatever to the contrary, except the sweeping statement of plaintiff, made at the trial, that she was “crazy” and did not know what she was doing. The only evidence introduced that tends to support the contention of want of capacity on the part of plaintiff is that she was aged, in ill health, and very much enfeebled. But want of capacity to contract will not be presumed because of old age or physical infirmities. Delaplain v. Grubb 4 (W. Va.), 30 S. E. 201, 67 Am. St. Rep. 788; Dickerson v. Evans, 84 Ill. 451; Orr v. Pennington, 93 Va. 268, 24 S. E. 928; Sullivan v. Hodgkin (Ky.), 12 S. W. 773; Crowe v. Peters, 63 Mo. 429; Shea v. Murphy, 164 Ill. 614, 45 N. E. 1021, 56 Am. St. Rep. 215; Davis v. Latta (Iowa), 62 N. W. 17.
It appears from the record that the plaintiff, about a year before the deed was made, spoke to the defendants about deeding the property to them, and subsequently, on several 5 occasions, again mentioned the matter’; but there is not a scintilla of evidence that either of the defendants ever mentioned the matter to her until the day on which the deed was executed. After they arrived at the office of the attorney who prepared the deed, there was some discussion as' to whether the plaintiff should dispose of the property by will or by deed. Plaintiff was in favor of making a will, but the defendants refused to advance any more money to protect the property and improve it and help the plaintiff unless the conveyance was by deed, which they had a perfect right to do. No matter what moral obligations they were under to take care of plaintiff and protect her property, it must be conceded that they were under no legal obligation to [378] do so. Tbe plaintiff finally, in opposition to the advice of her attorney, decided to make a deed, which was done. Defendant Mrs. Moser, with the exception of about five years, had lived all her life with her mother, and bad raised a large family under the same roof, and had recently cared for and nursed her through a severe spell of sickness. Defendants had for several years given plaintiff money to pay the taxes assessed against the property. The property had been sold for assessments made for the extension of water mains, and more taxes, amounting to $31.50, would soon be due, which plaintiff was unable to pay. In addition to the care, attention, and assistance thus extended, the defendants, by the provisions of the lease, were obligated to continue to assist and provide for plaintiff during the rest of her life. Under these circumstances, coercion and undue influence will not be inferred. 6 While courts of equity will carefully scrutinize transactions of this character, when entered into between parent and child, yet when, as in this case, as shown by the record, no undue influence has been used, such contracts will not be disturbed, provided the complaining party at the time of the transaction had legal and mental capacity to contract.
We are of the opinion, and so hold, that findings Nos. 9, 10, 12, and 18 are not supported by the evidence. The case is reversed, with directions to the trial court to set aside the decree entered in the case, and to dismiss the action,
BASKIN, C. J.? and BARTON, J., concur.