Mr. Chief Justice Hand
delivered the opinion of the court:
It is first contended that the court improperly instructed the jury as to the law. It appears from the record that the chancellor did not base the decree entered by him in this case upon the findings of the jury alone, but based the same upon his own conclusions as to the facts, which conclusions were reached by him from a full consideration of all the evidence in the case, and that the findings of fact by the jury were, at most, treated by him as only advisory. Where, in a case like this, the findings of the jury are accepted by the chancellor only as advisory, and it appears the decree was rendered upon the consideration by the chancellor of all the evidence produced by the respective parties, the fact that the jury may have been misdirected as to the law is not ground for reversal. (Guild v. Hull, 127 Ill. 523; Kinnah v. Kinnah, 184 id. 284; Ring v. Lawless, 190 id. 520.) In the case of Guild v. Hull, supra, it was held (p. 530): “In chancery cases, except in cases where the submission to a jury is required by law or the rules of chancery practice, the chancellor is the judge of the weight of the evidence and of the ultimate facts established by it. If he submits controverted questions of fact to a jury, as he may do, the verdict or finding of the jury is advisory, merely. He may adopt the verdict or set the same aside and resubmit the question to a jury, or he may disregard it and enter such a decree as in his judgment equity demands. He may enter his decree after setting the verdict aside, or without setting it aside." In KinnaJi v. Kinnah, supra, the court said: “It appears from the record the chancellor did not adopt the finding of the jury, but rendered a decree setting aside and vacating the deed upon consideration of the evidence produced by the respective parties. In such state of the record it is not material to consider whether the jury were correctly instructed by the court as to the rules of law applicable to the cause. The decree is the result of the judgment of the court as to the facts established by the weight of the evidence, and it is only necessary we should determine whether the record discloses sufficient testimony competent to be considered, to justify and uphold the conclusion as to matters of fact reached by the court, and that the decree of the court resulted from the application of correct legal principles to the state of case made by the proofs. (Guild v. Mull, 127 Ill. 523.) When the court, in such cases, accepts the verdict of the jury as establishing the facts and enters a decree pro forma thereon, the instructions given by the court to the jury may be reviewed in this court; but not so when, as here, the finding is the independent act of the chancellor.” And in Ring v. Lawless, supra, on page 532 it was said: “The verdicts rendered by the jury that the said Jeremiah Ring, Sr., had not sufficient mental power and capacity to execute the said eight several deeds in question and that he was unduly influenced by appellants in making each of said deeds, were upon feigned issues arising out of chancery, and were advisory, merely, to the court. The chancellor did not accept the findings that the deeds were the result of the exercise of undue influence on the part of the appellahts, and refused to be controlled by such findings. The findings that the said Jeremiah Ring, Sr., was wanting in mental power and ability to execute the said deeds coincided with the conclusions reached by the chancellor as to the weight of the evidence. The decree that the deeds be vacated and canceled is the result of the application by the chancellor of the principles of law applicable, in his judgment, to the facts which he believed to be established by the preponderance of the evidence. It is therefore unimportant to consider the complaints that the court fell into error in instructing the jury as to the law ai^plicable to these feigned issues.”
It is next contended that the court erred in its rulings as to the admission of evidence offered upon behalf of appellee, the main contention being that the court erred in allowing the evidence of Mary Tindall and Orlando Tindall, given in the county court before the jury upon the hearing as to the mental condition of Mary Tindall which resulted in the appointment of the appellee as conservator, to be read to the jury upon this trial. The testimony of Mary Tindall, given at that time, was not offered for the purpose of impeaching the deed, transfer and trust agreement, but for the purpose of showing her mental condition at the time of the execution thereof. While the declarations of a testator or grantor, made before or after the execution of a will or deed, are not admissible to show undue influence or fraud, they are admissible to prove the mental condition of the testator or grantor at the time of the execution of the instrument sought to be set aside; if not made at too remote a period prior to or subsequent to the execution thereof. (Massey v. Huntington, 118 Ill. 80; Bevelot v. Lestrade, 153 id. 625; Waterman v. Whitney, 11 N. Y. 157; 62 Am. Dec. 71.) Here the instruments were executed on August 5 and the inquisition of insanity was held in the following September. We are of the opinion the evidence given by Mary Tindall was properly admitted as bearing upon her mental condition on August 5, 1901.
The testimony of Orlando L. Tindall, given at the hearing in the county court, was objected to on the ground that he was not jointly interested in the subject matter of this suit with his co-defendants and that admissions made by him were not binding on them. -Under the authority of McMillan v. McDill, 110 Ill. 47, Campbell v. Campbell, 138 id. 612, and Boyle v. Boyle, 158 id. 228, we think this testimony should have been excluded. The presumption, however, is, that the chancellor only considered such testimony as was competent and disregarded such as was incompetent. (Dorman v. Dorman, 187 Ill. 154; VanVleet v. DeWitt, 200 id. 153.) In the latter case it was said (p. 156): “The hearing was before the chancellor, and the rule is, that in such case this court will not reverse for errors in the admission of testimony, unless it appears that the decree cannot be sustained except upon consideration of the incompetent testimony, (Yarde v. Yarde, 187 Ill. 636,) the presumption being that the chancellor considered only competent evidence in arriving at the findings embodied in the decree.” As there is ample evidence in this record to sustain the decree without considering the objectionable evidence, we are of the opinion the admission thereof does not constitute reversible error.
It is further contended that the evidence does not sustain the decree. The evidence was mainly heard in open court and is conflicting, and the chancellor having seen the witnesses and heard them testify, was in a much better position to judge which witnesses were worthy of belief than we are from a perusal of their testimony when written out and read by us in the record. It has been wisely settled in chancery cases that a court of review will not disturb the findings of fact of the chancellor unless it is apparent error has been committed, and the rule thus announced' applies with full force although the chancellor has submitted the case to a jury for an advisory verdict and although part of the evidence is in the form of depositions. (Elmstedt v. Nicholson, 186 Ill. 580, and cases cited.) In the case of Biggerstaff v. Biggerstaff, 180 Ill.
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Mr. Chief Justice Hand
delivered the opinion of the court:
It is first contended that the court improperly instructed the jury as to the law. It appears from the record that the chancellor did not base the decree entered by him in this case upon the findings of the jury alone, but based the same upon his own conclusions as to the facts, which conclusions were reached by him from a full consideration of all the evidence in the case, and that the findings of fact by the jury were, at most, treated by him as only advisory. Where, in a case like this, the findings of the jury are accepted by the chancellor only as advisory, and it appears the decree was rendered upon the consideration by the chancellor of all the evidence produced by the respective parties, the fact that the jury may have been misdirected as to the law is not ground for reversal. (Guild v. Hull, 127 Ill. 523; Kinnah v. Kinnah, 184 id. 284; Ring v. Lawless, 190 id. 520.) In the case of Guild v. Hull, supra, it was held (p. 530): “In chancery cases, except in cases where the submission to a jury is required by law or the rules of chancery practice, the chancellor is the judge of the weight of the evidence and of the ultimate facts established by it. If he submits controverted questions of fact to a jury, as he may do, the verdict or finding of the jury is advisory, merely. He may adopt the verdict or set the same aside and resubmit the question to a jury, or he may disregard it and enter such a decree as in his judgment equity demands. He may enter his decree after setting the verdict aside, or without setting it aside." In KinnaJi v. Kinnah, supra, the court said: “It appears from the record the chancellor did not adopt the finding of the jury, but rendered a decree setting aside and vacating the deed upon consideration of the evidence produced by the respective parties. In such state of the record it is not material to consider whether the jury were correctly instructed by the court as to the rules of law applicable to the cause. The decree is the result of the judgment of the court as to the facts established by the weight of the evidence, and it is only necessary we should determine whether the record discloses sufficient testimony competent to be considered, to justify and uphold the conclusion as to matters of fact reached by the court, and that the decree of the court resulted from the application of correct legal principles to the state of case made by the proofs. (Guild v. Mull, 127 Ill. 523.) When the court, in such cases, accepts the verdict of the jury as establishing the facts and enters a decree pro forma thereon, the instructions given by the court to the jury may be reviewed in this court; but not so when, as here, the finding is the independent act of the chancellor.” And in Ring v. Lawless, supra, on page 532 it was said: “The verdicts rendered by the jury that the said Jeremiah Ring, Sr., had not sufficient mental power and capacity to execute the said eight several deeds in question and that he was unduly influenced by appellants in making each of said deeds, were upon feigned issues arising out of chancery, and were advisory, merely, to the court. The chancellor did not accept the findings that the deeds were the result of the exercise of undue influence on the part of the appellahts, and refused to be controlled by such findings. The findings that the said Jeremiah Ring, Sr., was wanting in mental power and ability to execute the said deeds coincided with the conclusions reached by the chancellor as to the weight of the evidence. The decree that the deeds be vacated and canceled is the result of the application by the chancellor of the principles of law applicable, in his judgment, to the facts which he believed to be established by the preponderance of the evidence. It is therefore unimportant to consider the complaints that the court fell into error in instructing the jury as to the law ai^plicable to these feigned issues.”
It is next contended that the court erred in its rulings as to the admission of evidence offered upon behalf of appellee, the main contention being that the court erred in allowing the evidence of Mary Tindall and Orlando Tindall, given in the county court before the jury upon the hearing as to the mental condition of Mary Tindall which resulted in the appointment of the appellee as conservator, to be read to the jury upon this trial. The testimony of Mary Tindall, given at that time, was not offered for the purpose of impeaching the deed, transfer and trust agreement, but for the purpose of showing her mental condition at the time of the execution thereof. While the declarations of a testator or grantor, made before or after the execution of a will or deed, are not admissible to show undue influence or fraud, they are admissible to prove the mental condition of the testator or grantor at the time of the execution of the instrument sought to be set aside; if not made at too remote a period prior to or subsequent to the execution thereof. (Massey v. Huntington, 118 Ill. 80; Bevelot v. Lestrade, 153 id. 625; Waterman v. Whitney, 11 N. Y. 157; 62 Am. Dec. 71.) Here the instruments were executed on August 5 and the inquisition of insanity was held in the following September. We are of the opinion the evidence given by Mary Tindall was properly admitted as bearing upon her mental condition on August 5, 1901.
The testimony of Orlando L. Tindall, given at the hearing in the county court, was objected to on the ground that he was not jointly interested in the subject matter of this suit with his co-defendants and that admissions made by him were not binding on them. -Under the authority of McMillan v. McDill, 110 Ill. 47, Campbell v. Campbell, 138 id. 612, and Boyle v. Boyle, 158 id. 228, we think this testimony should have been excluded. The presumption, however, is, that the chancellor only considered such testimony as was competent and disregarded such as was incompetent. (Dorman v. Dorman, 187 Ill. 154; VanVleet v. DeWitt, 200 id. 153.) In the latter case it was said (p. 156): “The hearing was before the chancellor, and the rule is, that in such case this court will not reverse for errors in the admission of testimony, unless it appears that the decree cannot be sustained except upon consideration of the incompetent testimony, (Yarde v. Yarde, 187 Ill. 636,) the presumption being that the chancellor considered only competent evidence in arriving at the findings embodied in the decree.” As there is ample evidence in this record to sustain the decree without considering the objectionable evidence, we are of the opinion the admission thereof does not constitute reversible error.
It is further contended that the evidence does not sustain the decree. The evidence was mainly heard in open court and is conflicting, and the chancellor having seen the witnesses and heard them testify, was in a much better position to judge which witnesses were worthy of belief than we are from a perusal of their testimony when written out and read by us in the record. It has been wisely settled in chancery cases that a court of review will not disturb the findings of fact of the chancellor unless it is apparent error has been committed, and the rule thus announced' applies with full force although the chancellor has submitted the case to a jury for an advisory verdict and although part of the evidence is in the form of depositions. (Elmstedt v. Nicholson, 186 Ill. 580, and cases cited.) In the case of Biggerstaff v. Biggerstaff, 180 Ill. 407, in considering this question, on page 411 of the opinion it is said: “In a case of this character, where witnesses differ as to the mental capacity of the grantor and of his ability to legally transact business and to dispose of his property, the weight to be given to the testimony of witnesses is much more readily to be determined by a just chancellor than by a court of record, which reads only the written evidence. The law is well established in this State that where a cause is heard by the chancellor, and the evidence is all, or partly, oral, it must appear that there is clear and palpable error before a reversal will be had. (Coari v. Olsen, 91 Ill. 273; Baker v. Rockabrand, 118 id. 365; Ellis v. Ward, 137 id. 509; Johnson v. Johnson, 125 id. 510; Allen v. Hickey, 158 id. 362.) In a case of this character, where the issue is tried by the chancellor before a jury, and where the verdict of the jury is only advisory and may be set aside by the chancellor, the rule should be just as strong that clear and palpable error should appear before the decree should be reversed.”
It appears from this record that Mary Tindall was very aged and quite infirm at the time the transfers sought to be impeached were made; that the appellant Elizabeth T. Milner lived with her and cared for her and that Orlando L. Tindall and his wife frequently visited her; that they, as well as Mary Tindall, were followers of Dowie and believed in his teachings. It .is apparent from the situation of the parties that the relation of the appellants to Mary Tindall was such that great confidence was reposed in them by her, and that the transfer of her property to Dowie and the execution of said trust agreement were greatly to the advantage of the appellants and to the disadvantage of Mary Tindall. Prior to the execution thereof she owned and controlled said property absolutely. After the execution thereof, if the same were valid, she only had a life interest in the income thereof, the residuum thereof having been transferred to appellant Dowie, and the immediate control thereof, by said transfers and trust agreement, having passed from her and become subject to that of said Dowie and Orlando L. Tindall. The law is well settled that where it appears that relations of trust and confidence exist between parties to a transaction like this and the parties receiving the transfer are benefited by such transfer, the court will indulge in the presumption that the party making the transfer was- unduly influenced to make the transfer until such presumption is rebutted by the party benefited by the transfer. In Pomeroy’s Equity Jurisprudence (vol. 2,—2d ed.—sec. 951,) it is said: “Where there is no coercion amounting to duress, but a transaction is the result of a moral, social or domestic force X exerted upon a party, controlling the free action of his will and preventing any true consent, equity may relieve against the transaction on the ground of undue influence, even though there may be no invalidity at law. In the vast majority of instances undue influence naturally has a field to work upon in the condition or circumstances of the person influenced, which render him peculiarly susceptible and yielding,—his dependent or fiduciary relation towards the one exerting the influence, his mental or physical weakness, his pecuniary necessities, his ignorance, lack of advice, and the like. All these circumstances, however, are incidental, and not essential. Where an antecedent fiduciary relation exists, a court of equity will presume confidence placed and influence exerted. * * * The doctrine of equity concerning undue influence is very broad, and is based upon principles of the highest morality. It reaches every case, and grants relief ‘where influence is acquired and abused or where confidence .is reposed and betrayed.’ It is specially active and searching in dealing with gifts, but is applied, when necessary, to conveyances, contracts, executory and executed, and wills.” In the American and English Encyclopedia of Law (vol. 27,—1st ed.—p. 456,) the author says: “Certain transactions are presumed, on grounds of public policy, to be the result of undue influence. Such transactions are generally those occurring between persons in some relation of confidence, one toward the other. The presence of such relationship creates a presumption of influence, which can generally be rebutted by proof that the parties dealt as strangers, at arm’s length; that no unfairness was used, and that facts in the knowledge of the one in the position of influence affecting the matter were communicated to the other.” And in Marshall v. Coleman, 187 Ill. 556, on page 582 this court said: “Where two persons stand in such relation to each other that confidence is necessarily reposed by one in the other, and the one has over the other an influence which naturally grows out of that confidence, the abuse of such confidence or influence to obtain an advantage at the expense of the confiding party will not be permitted to prevail, even though the transaction could not have-been impeached if no such confidential relations had existed.— Tait v. Williamson, L. R. 2 Ch. 55; 10 Am. & Eng. Ency. of Law, p. 327; 1 id. p. 375; Purvines v. Harrison, 151 Ill. 219; Sayles v. Christie, 187 id. 420; White v. Ross, 160 id. 56.”
The doctrine repeatedly announced by this court is, that courts of equity “will scrutinize with the most jealous vigilance” transactions between parties occupying fiduciary relations toward each other, (Casey v. Casey, 14 Ill. 112,) and that the burden of proof is on the befieficiary, in such cases, to establish the fairness of the transaction, and that it did not proceed from undue influence. (Jennings v. McConnel, 17 Ill. 148; Zeigler v. Hughes, 55 id. 288; Ward v. Armstrong, 84 id. 151; Wickiser v. Cook, 85 id. 68.) In Sands v. Sands, 112 Ill. 225, on page 232 it was said: “The rule is, where a person enfeebled in mind, by-disease or old age, is so placed as to be likely to be subjected to the influence of another and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act and that it was not done through the influence of the donee.” In Jones v. Lloyd, 117 Ill. 597, it was held the burden of proof is upon the person obtaining the advantage, in cases of fiduciary relations, “to vindicate the bargain or gift from any shadow of suspicion, and to show that it was perfectly fair and reasonable in every respect, and courts will scrutinize the transaction with great severity.” And in Thomas v. Whitney, 186 Ill. 225, on page 231, that “transactions between a party and one bearing a fiduciary relation to him are upon his motion prima facie voidable upon grounds of public policy, and the burthen of proof, the fiduciary relation being established, is upon the one receiving the benefit to show an absence of undue influence.” It is not necessary that actual and intentional fraud be established, (McParland v. Larkin, 155 Ill. 84,) and “it is immaterial by whom the undue influence is exercised, whether by a beneficiary or an outsider.” Smith v. Henline, 174 Ill. 184.
We have examined this record with care, and in view of the fact that the burden was upon the appellants to show that the transfers made to Dowie by Mary Tindall were not brought about by reason of undue influence exerted by them over her, growing out of the fiduciary relations which they sustained to her, and as the evidence was conflicting and the chancellor had, by reason of seeing and hearing most of the witnesses while testifying, a much better opportunity than we to judge of the weight to be given to their testimony, we are unable to say that the decree is manifestly unsupported by the ¡.evidence. Kinnah v. Kinnah, supra.
The decree of the circuit court will be affirmed.
Decree affirmed.