Stockbridge, J.,
delivered the opinion of the Court.
The record in the above entitled ease presents, some rather unusual features. The proceeding" is one by John Mason Grove to set aside a deed of certain property in Middletown, Frederick 'County, which was fully described in a deed from the said John Mason Grove to Marjorie Grove Taylor and her husband, Kenton If. Taylor. The prayer of the bill asked this specific relief, and appended to that was. a prayer for general relief. The grounds, on which the deed was asked to be set aside wore tbe mental incapacity of the grantor in the deed, and undue influence exerted upon the grantor by Mrs. Taylor and her husband, Mrs. Taylor being the more active agent of tho two. The pleadings also set up. a non-delivery of the deed by the grantor to tbe grantee, but the proof in the case did not substantiate this as. a. valid ground for relief.
While it was not specially dwelt upon in the oral argument of the case, the ground was further urged in the briefs of the counsel for the original plaintiff, who is the appellant here, that the granting clause was an absolute grant, later sought to he limited by imposing upon it a life interest in the grantor, and that when different clauses of a deed axe at. variance and inconsistent, the granting: clause must necessarily control. That is a provision of law too familiar to he worthy of discussion, and, therefore, one of the first, concerns will he1 a careful consideration of the deed itself for the purpose of determining how far tbe allegations of the brief in this respect are borne out.
In the progress of the trial in the Circuit Court of E'rederiek County there were many objections raised to> evidence,
but this Court is not now called on -to consider these* aspects of the case.
The trial of the case was before two judges — Urneb and Worth iwgto3st- — of the sixth circuit, and these two judges, after hearing the testimony and arguments of counsel, were unable to agree as to the proper decree to be entered. The record was then, submitted to- the third judge of the same circuit, Judgke Píete», who, after a careful review of the pleadings and testimony, reached the conclusion that the view expressed in the opinion of Judge- Ureter was correct, and that the bill should be dismissed. It is from the decree thus- dismissing the complaint that the appeal involved in this record was taken.
This narrows the issue down to two questions, namely, Whether or not the deed was procured by undue influence exercised upon Mr. John Mason Grove at the time of its execution in 1920, and whether or not Mr. Grove was possessed of sufficient mental capacity at the time of the execution of the deed to make a valid deed or1 contract.
Both of these questions, so- far as the law is concerned, are well settled in this State in quite a long" list of adjudicated cases. That a deed may be set aside by reason of undue influence it must be made to appear by the testimony that the influence was strong enough to overcome the free agency of the grantor and amount to force or fear, and that the deed Was executed while such influence was still a controlling force with the grantor.
Todd
v.
Grove,
33 Md. 188;
Williams
v.
Williams,
63 Md. 371;
Barron
v.
Reardon,
137 Md. 308;
Dudderar
v.
Dudderar,
116 Md. 619;
Kelly
v.
Stanton,
141 Md. 380.
In the case of
Williams
v.
Williams, supra.,
a deed was set aside, hut that result was reached because of the fact of the confidential relations existing there between parent and child. In this ease there is no confidential relation existing such as to throw the burden of proof upon the grantees, and it remains therefore with the parties' seeking- to vacate the deed
npon the ground -of undue influence to establish that fact by a preponderance of the evidence, a burden which the plaintiff in this ease has failed to meet,. The grantor of the deed in this case was an uncle of Mrs. Taylor. Mr. Grove, who seeks to set the deed aside-, was, at the time when he -signed and acknowledged the deed, 'a resident of Middletown, Frederick County, while his niece, Mrs. Taylor, was a resident of Martinsburg, West Virginia.
The ground most strenuously urged for vaca-tiug this deed was the supposed mental incapacity of Mr. Grove at the time when he signed and acknowledged the deed. The case stands, therefore, in the somewhat peculiar attitude of the grantor of an instrument seeking to avoid that instrument upon the ground that he was practically an imbecile-, and this, -appears to have been the view taken of it by Judge Worthington in the Frederick County Court. After the case had been begun, and for the purpose of strengthening the plaintiff’s case, an additional party was made a, oo-plaintiff as the next friend of Mr. 'Grove. There is one more point to be observed before proceeding to a consideration of the testimony given.
The law never presumes the mental incapacity of a, grantor. If reliance is to be placed upon that, that must he proved by a preponderance of the evidence, nor is the legal definition of the terms insane,
non compos mentis,
or imbecile, necessarily identical with the meaning ascribed to those terms by the medical profession, and especially the alienist. Of this last class there are men eminent in their profession who do not hesitate to say that they regard from forty to sixty per cent, of the human race as
non compos.
It has been recognized, in this State, in several eases, that the testimony o-f alienists or exports, as they are sometimes called, while admissible under rn-any circumstances, is always to be received with caution and carefully scrutinized.
Turner
v.
Rusk,
53 Md. 71;
Berry Will case,
93 Md. 568.
There are two classes of medical testimony offered in this ease, that of certain alienists or experts who expressly declare
the view that they regarded. Mr. Grove as incompetent to execute a valid deed or contract, basing their opinion upon a more or less thorough examination which they had made. As opposed to them were certain other gentlemen of the medical profession whoi had attended Mr. Grove, not professing to be specialists or experts in insanity, but who, in the course of their attendance on him for physical ailments, regarded him as fully competent to execute valid contractual engagements.
The experts describe him as having
senile dementia
or
paranoia,
or suffering from arterio-selerosis, and if the last mentioned existed, that the inevitable tendency of it was to produce or extend
senile dementia.
Quite a number of other' witnesses than the medical ones testified with regard to Mr. Grove’s condition and in effect gave expression to appearance as to his mental capacity, though the facts enumerated by them upon which their opinions were founded fell a good deal short of what is needed in order to entitle a non-professional person to express an opinion upon the subject of mental capacity.
The facts surrounding Mr.
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Stockbridge, J.,
delivered the opinion of the Court.
The record in the above entitled ease presents, some rather unusual features. The proceeding" is one by John Mason Grove to set aside a deed of certain property in Middletown, Frederick 'County, which was fully described in a deed from the said John Mason Grove to Marjorie Grove Taylor and her husband, Kenton If. Taylor. The prayer of the bill asked this specific relief, and appended to that was. a prayer for general relief. The grounds, on which the deed was asked to be set aside wore tbe mental incapacity of the grantor in the deed, and undue influence exerted upon the grantor by Mrs. Taylor and her husband, Mrs. Taylor being the more active agent of tho two. The pleadings also set up. a non-delivery of the deed by the grantor to tbe grantee, but the proof in the case did not substantiate this as. a. valid ground for relief.
While it was not specially dwelt upon in the oral argument of the case, the ground was further urged in the briefs of the counsel for the original plaintiff, who is the appellant here, that the granting clause was an absolute grant, later sought to he limited by imposing upon it a life interest in the grantor, and that when different clauses of a deed axe at. variance and inconsistent, the granting: clause must necessarily control. That is a provision of law too familiar to he worthy of discussion, and, therefore, one of the first, concerns will he1 a careful consideration of the deed itself for the purpose of determining how far tbe allegations of the brief in this respect are borne out.
In the progress of the trial in the Circuit Court of E'rederiek County there were many objections raised to> evidence,
but this Court is not now called on -to consider these* aspects of the case.
The trial of the case was before two judges — Urneb and Worth iwgto3st- — of the sixth circuit, and these two judges, after hearing the testimony and arguments of counsel, were unable to agree as to the proper decree to be entered. The record was then, submitted to- the third judge of the same circuit, Judgke Píete», who, after a careful review of the pleadings and testimony, reached the conclusion that the view expressed in the opinion of Judge- Ureter was correct, and that the bill should be dismissed. It is from the decree thus- dismissing the complaint that the appeal involved in this record was taken.
This narrows the issue down to two questions, namely, Whether or not the deed was procured by undue influence exercised upon Mr. John Mason Grove at the time of its execution in 1920, and whether or not Mr. Grove was possessed of sufficient mental capacity at the time of the execution of the deed to make a valid deed or1 contract.
Both of these questions, so- far as the law is concerned, are well settled in this State in quite a long" list of adjudicated cases. That a deed may be set aside by reason of undue influence it must be made to appear by the testimony that the influence was strong enough to overcome the free agency of the grantor and amount to force or fear, and that the deed Was executed while such influence was still a controlling force with the grantor.
Todd
v.
Grove,
33 Md. 188;
Williams
v.
Williams,
63 Md. 371;
Barron
v.
Reardon,
137 Md. 308;
Dudderar
v.
Dudderar,
116 Md. 619;
Kelly
v.
Stanton,
141 Md. 380.
In the case of
Williams
v.
Williams, supra.,
a deed was set aside, hut that result was reached because of the fact of the confidential relations existing there between parent and child. In this ease there is no confidential relation existing such as to throw the burden of proof upon the grantees, and it remains therefore with the parties' seeking- to vacate the deed
npon the ground -of undue influence to establish that fact by a preponderance of the evidence, a burden which the plaintiff in this ease has failed to meet,. The grantor of the deed in this case was an uncle of Mrs. Taylor. Mr. Grove, who seeks to set the deed aside-, was, at the time when he -signed and acknowledged the deed, 'a resident of Middletown, Frederick County, while his niece, Mrs. Taylor, was a resident of Martinsburg, West Virginia.
The ground most strenuously urged for vaca-tiug this deed was the supposed mental incapacity of Mr. Grove at the time when he signed and acknowledged the deed. The case stands, therefore, in the somewhat peculiar attitude of the grantor of an instrument seeking to avoid that instrument upon the ground that he was practically an imbecile-, and this, -appears to have been the view taken of it by Judge Worthington in the Frederick County Court. After the case had been begun, and for the purpose of strengthening the plaintiff’s case, an additional party was made a, oo-plaintiff as the next friend of Mr. 'Grove. There is one more point to be observed before proceeding to a consideration of the testimony given.
The law never presumes the mental incapacity of a, grantor. If reliance is to be placed upon that, that must he proved by a preponderance of the evidence, nor is the legal definition of the terms insane,
non compos mentis,
or imbecile, necessarily identical with the meaning ascribed to those terms by the medical profession, and especially the alienist. Of this last class there are men eminent in their profession who do not hesitate to say that they regard from forty to sixty per cent, of the human race as
non compos.
It has been recognized, in this State, in several eases, that the testimony o-f alienists or exports, as they are sometimes called, while admissible under rn-any circumstances, is always to be received with caution and carefully scrutinized.
Turner
v.
Rusk,
53 Md. 71;
Berry Will case,
93 Md. 568.
There are two classes of medical testimony offered in this ease, that of certain alienists or experts who expressly declare
the view that they regarded. Mr. Grove as incompetent to execute a valid deed or contract, basing their opinion upon a more or less thorough examination which they had made. As opposed to them were certain other gentlemen of the medical profession whoi had attended Mr. Grove, not professing to be specialists or experts in insanity, but who, in the course of their attendance on him for physical ailments, regarded him as fully competent to execute valid contractual engagements.
The experts describe him as having
senile dementia
or
paranoia,
or suffering from arterio-selerosis, and if the last mentioned existed, that the inevitable tendency of it was to produce or extend
senile dementia.
Quite a number of other' witnesses than the medical ones testified with regard to Mr. Grove’s condition and in effect gave expression to appearance as to his mental capacity, though the facts enumerated by them upon which their opinions were founded fell a good deal short of what is needed in order to entitle a non-professional person to express an opinion upon the subject of mental capacity.
The facts surrounding Mr. Grove at this time were practically these: He was a man between eighty and eighty-two years of age, and apparently below the average so far as his mentality was concerned, hut not to the extent that would render him in law incapable of executing a valid deed or contract. He had apparently in most of his business matters relied very greatly upon the judgment of his wife, who died on the 11th of March, 1920'. They had no. children, and Mr. Grove felt 'himself in a very lonely position. He appears to have made quite tempting -offers to a number of persons, some related and some not, to come and live with him, taking care of his needs in his advancing years, but for one reason or other they all declined. After being thus refused he made an •offer to his niece, Mrs. Taylor, that her husband should , resign his position in Martinsburg, and that Mr. ‘and Mrs. Tailor should come 'and live in his house in Middletown and ho would convey the property to them, the deed to become effect
ive in iliem upon the termination of a life interest, which lie proposed to retain. The deed is. ia, short one and hears both upon the question of consideration and the reservation of a life interest in the grantor. It is as follows:
“This Deed, made this 26th day of March, iu the year nineteen hundred and twenty, by me, John Mason Grove, widower, of Frederick County, State of Maryland, wilnesseth:
Whereas, my niece, Marjorie Grove Taylor, has agreed to move to my home in Middletown, Frederick County, Maryland, and keep said house and home in proper order and to otherwise provide for my comfort and welfare; and
Whereas, in consideration of her so doing and in further consideration of the natural love and affection I bear toward her, I have agreed to convey the hereinafter described property unto my said niece, Marjorie Grove Taylor, and Kenton H. Taylor, lier husband, reserving, however, unto myself a life estate in said property, and in order to effect said purpose and carry out said agreement,
Row, therefore, this Deed witnesseth, that for and in consideration of the premises and the sum of ten dollars ($10.00) cash in hand paid at and before the execution and delivery of these presents, the receipt of which is hereby acknowledged, I, the said John Mason Grove, widower as aforesaid, do hereby grant and convey in fee simple unto Marjorie Grove Taylor and Kenton II. Taylor, her husband, all that piece or parcel of land situate, lying and being in the eastern end of Middletown, in Frederick Oonnty, Maryland, and more particularly described in, a deed from Herman L. Routzahn to John Mason Grove and wife, bearing date the 16th day of January, A. D. 1917, and duly recorded among the Land Records of Frederick County in Liber Ro. 320, folio 138, by reference thereto will more fully and at large appear.
Together with all and singular buildings, improvements, rights, ways, privileges and appurtenances
thereunto belonging or in any wise appertaining thereto.
Especially reserving,
however, unto myself, the said John Mason Grove, a life estate in and to the herein-before described property.”
In view of the recitals in the deed preceding the granting . clause, there can be no> question of a, conflict between the granting' clause and the habendum, as the reservation of the life interest is manifestly intended to a considerable degree as a consideration for the deed.
The demeanor of Mr. Grove upon the witness stand is a curious exhibition. ILe contradicts himself over and over again, upon matters both of importance and unimportance. One moment he evinces an inability to understand a plain, simple question, and a moment later gives a display of cunning quite remarkable and which suggests that, throughout his testimony, he was endeavoring to assume and act a part for the furtherance of this proceeding. From tiro testimony of other witnesses it does not appear possible! that he could have been as obtuse as he seeks to impress the court that he was. For many years, in fact, since it was first organized, he had been á director of a savings bank in Frederick ‘County, and also on the directorate of an insurance company, and had been continued in tírese positions year after year, as would hardly have been the case if he had been as stupid mentally as some of the witnesses tried to' paint him. It, is true that the filling' out of checks was usually done for him by bis wife or some official connected with the bank, whom he knew: and had confidence in, but this fact is very far from being conclusive as to his lack of mental ability.
This Court, unfortunately, did not have the advantage which was enjoyed by the trial court of seeing Mr. Grove while he delivered his testimony, and it is noteworthy that while Judge TIrne-e, was satisfied in the court below of his being fully possessed of a mental power sufficient hr enable
him to execute a valid deed or contract, the dissenting opinion of Judge Woiítiiixíg-toe- does not deny that he possessed the power itself, simply that Judge Woktirus'Gtosr felt that he would Hice to have more evidence upon the point.
There is nothing contained in the record sufficient to show that Mr. and Mrs. Taylor have not fully measured up to the requirements of the deed, and, in this condition of the evidence, when this Court does not feel that 'Mr. Grove has met the burden of proof imposed on him by law, the decree of Judge ITioteb and Judge Petek will be affirmed.
Decree affirmed; costs to be paid by the ap-
•
pellant.