The opinion of the court was delivered by
Reed, J.
This bill is filed to set aside certain gifts made by Eden Hay-dock to his wife. Eden Haydock died April 25th, 1879. The first gift was made February 24th, 1879, of nine shares of the stock of the United New Jersey Railroad and Canal Companies and seven bonds of the city of Rahway. The second gift was made March 10th, 1879, of a promissory note for $5,000. Mr. Haydock had made a will eight years before, providing for his wife, which will was, at the time of his death, unrevoked.
[573]*573The evidence in the ease has impressed me with the conviction that at the time when these transfers were made, the mind of the donor approached so closely to the line which defines the-limit of legal mental -capacity, that upon the ground of a want of such capacity I should incline to hold that these gifts were void. *
The numerous instances of forgetfulness proven by the officers-of the bank of which he was a director, and by artisans and business men with whom he had dealt, displays a mind upon which the business occurrences with which he was concerned, left but a feeble impression.
It is, of course, entirely true that the memory may be quite imperfect and yet not make a state of mind which would avoid a disposition of property by gift or by testament. Turner v. Cheesman, 2 McCart. 243; Stackhouse v. Horton, 2 McCart. 202; In re Vanderveer’s Will, 4 C. E. Gr. 561. Nevertheless, a considerable degree of business recollection is an obvious prerequisite to such a disposition. An apprehension of the present status of a man’s business affairs is absolutely essential as a base for an intelligent shifting of their position. This involves, of course, the power to recall what has already been done. A person who is oblivious of a former disposition of his-property is as unfit to make a subsequent disposition thereof as if he was under an insane delusion as to its extent and character. Now, by the testimony of numerous witnesses, it appears that, the mind of Mr. Haydock was so disorganized that the remembrance that he had done any of the recurring business acts-which he had been accustomed to transact faded from his mind almost as soon as they were done, and he would, within a short period of time, offer to do the same act again and again. In the face of this evidence it would be difficult to conclude that, at the time when he made these gifts, he had such a recollection of the status of his property, particularly of the disposition which he had already made by the will of 1871, as to permit him to make a legal divestiture of any of it by gift. If the case stood upon this ground alone, I should incline to the opinion that a sufficient degree of capacity did not exist.
[574]*574Rut if we admit that the donor was a person who possessed sufficient mental power to make a gift, yet I think it is upon the recipients of those gifts to show the fairness of the transaction. Here was a man of weak mind and feeble body. All the evidence in the cause shows that the wife was the one upon whom he naturally leaned. She watched his movements and cared for his wants, and he submitted himself to her control. She naturally and necessarily became the head of the house. While they so lived together, and while none but the wife and her brothers were about him, without the advice of disinterested counselors, the old man made these gifts of which she was the recipient.
I take the rule to be settled that 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. Huguenin v. Baseley, 2 L. C. in Eq. (4th Am. ed.) notes, pp. 1188—1185, American notes pp. 1198—1194.
The presumption against the validity of the gift is not limited to those instances where the relation of parent and child, guardian and ward or husband and wife, exists but in every instance where the relation between donor and donee is one in which the latter has acquired a dominant position. The parent, by age, may come under the sway of his children. Highberger v. Stiffler, 21 Md. 338. And so, as in the present case, the husband may become the dependent of the wife, and their natural position become reversed.
The ecclesiastical courts have declared a rule of evidence in regard to wills executed by persons of weak mental condition. The presumption is that a person who executes a will knows the nature of its contents. Proof of its execution, therefore, is all that is required of the proponent. Rut, if it appeal’s that the testator was of a weak mind, and a bequest is made to a person who stood in a position which would have enabled the beneficiary to influence the act, the burden is shifted and a more rigid [575]*575rule is enforced, and probate will not be granted unless the court be satisfied, by additional evidence, that the paper presented does really express the true will of the testator. Taylor on Ev. § 160.
The presumption of undue influence, however, does not also arise from the same state of facts, in the case of a gift, because the rule in regard to what constitutes undue influence differs when applied to wills and when applied to gifts. Boyse v. Rossborough, 6 H. L. Cas. 149; Parfitt v. Lawless, L. R. (2 P. & D.) 462.
The influence which is undue in cases of gifts inter vivos, is very different from that which is required to set aside a will. In testamentary cases, undue influence is always defined ascoercion or fraud, but, inter vivos, no such definition is applied. Where parties hold positions in which one is more or less dependent '.upon the other, courts pf equity hold that the weaker party must be protected, and they set aside his gifts if he had not proper advice independently of the other. Huguenin v. Baseley supra, notes p. 1271.
In the present case, these gifts, while gifts inter vivos, were undoubtedly intended by the donee to operate as a testamentary disposition of'the donor’s property. It is clear that the physical condition of the donor was critical, and his days brief in number. The presence of Mr. Anderson and the talk with him about drawing a will, and also the conversation detailed by Bayright, which he says he had with Mr. Haydock in the garden, point to ■the conclusion that it was supposed that the life of the donor would be brief, and that some disposition of his property, in view of his death, was requisite. For some reason, the will was never drawn, and it is transparent that the gifts were executed to fill the place of a will.
Now it seems to me, that, where it is apparent that a gift is ■made to accomplish the purpose of a will, to operate as such an instrument, without being surrounded by the formal guards which the statute has provided for the execution of a will, it raises an additional reason why a gift like this should be scanned with circumspection, and why the donee should clearly and convincingly show the validity of its execution.
[576]
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The opinion of the court was delivered by
Reed, J.
This bill is filed to set aside certain gifts made by Eden Hay-dock to his wife. Eden Haydock died April 25th, 1879. The first gift was made February 24th, 1879, of nine shares of the stock of the United New Jersey Railroad and Canal Companies and seven bonds of the city of Rahway. The second gift was made March 10th, 1879, of a promissory note for $5,000. Mr. Haydock had made a will eight years before, providing for his wife, which will was, at the time of his death, unrevoked.
[573]*573The evidence in the ease has impressed me with the conviction that at the time when these transfers were made, the mind of the donor approached so closely to the line which defines the-limit of legal mental -capacity, that upon the ground of a want of such capacity I should incline to hold that these gifts were void. *
The numerous instances of forgetfulness proven by the officers-of the bank of which he was a director, and by artisans and business men with whom he had dealt, displays a mind upon which the business occurrences with which he was concerned, left but a feeble impression.
It is, of course, entirely true that the memory may be quite imperfect and yet not make a state of mind which would avoid a disposition of property by gift or by testament. Turner v. Cheesman, 2 McCart. 243; Stackhouse v. Horton, 2 McCart. 202; In re Vanderveer’s Will, 4 C. E. Gr. 561. Nevertheless, a considerable degree of business recollection is an obvious prerequisite to such a disposition. An apprehension of the present status of a man’s business affairs is absolutely essential as a base for an intelligent shifting of their position. This involves, of course, the power to recall what has already been done. A person who is oblivious of a former disposition of his-property is as unfit to make a subsequent disposition thereof as if he was under an insane delusion as to its extent and character. Now, by the testimony of numerous witnesses, it appears that, the mind of Mr. Haydock was so disorganized that the remembrance that he had done any of the recurring business acts-which he had been accustomed to transact faded from his mind almost as soon as they were done, and he would, within a short period of time, offer to do the same act again and again. In the face of this evidence it would be difficult to conclude that, at the time when he made these gifts, he had such a recollection of the status of his property, particularly of the disposition which he had already made by the will of 1871, as to permit him to make a legal divestiture of any of it by gift. If the case stood upon this ground alone, I should incline to the opinion that a sufficient degree of capacity did not exist.
[574]*574Rut if we admit that the donor was a person who possessed sufficient mental power to make a gift, yet I think it is upon the recipients of those gifts to show the fairness of the transaction. Here was a man of weak mind and feeble body. All the evidence in the cause shows that the wife was the one upon whom he naturally leaned. She watched his movements and cared for his wants, and he submitted himself to her control. She naturally and necessarily became the head of the house. While they so lived together, and while none but the wife and her brothers were about him, without the advice of disinterested counselors, the old man made these gifts of which she was the recipient.
I take the rule to be settled that 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. Huguenin v. Baseley, 2 L. C. in Eq. (4th Am. ed.) notes, pp. 1188—1185, American notes pp. 1198—1194.
The presumption against the validity of the gift is not limited to those instances where the relation of parent and child, guardian and ward or husband and wife, exists but in every instance where the relation between donor and donee is one in which the latter has acquired a dominant position. The parent, by age, may come under the sway of his children. Highberger v. Stiffler, 21 Md. 338. And so, as in the present case, the husband may become the dependent of the wife, and their natural position become reversed.
The ecclesiastical courts have declared a rule of evidence in regard to wills executed by persons of weak mental condition. The presumption is that a person who executes a will knows the nature of its contents. Proof of its execution, therefore, is all that is required of the proponent. Rut, if it appeal’s that the testator was of a weak mind, and a bequest is made to a person who stood in a position which would have enabled the beneficiary to influence the act, the burden is shifted and a more rigid [575]*575rule is enforced, and probate will not be granted unless the court be satisfied, by additional evidence, that the paper presented does really express the true will of the testator. Taylor on Ev. § 160.
The presumption of undue influence, however, does not also arise from the same state of facts, in the case of a gift, because the rule in regard to what constitutes undue influence differs when applied to wills and when applied to gifts. Boyse v. Rossborough, 6 H. L. Cas. 149; Parfitt v. Lawless, L. R. (2 P. & D.) 462.
The influence which is undue in cases of gifts inter vivos, is very different from that which is required to set aside a will. In testamentary cases, undue influence is always defined ascoercion or fraud, but, inter vivos, no such definition is applied. Where parties hold positions in which one is more or less dependent '.upon the other, courts pf equity hold that the weaker party must be protected, and they set aside his gifts if he had not proper advice independently of the other. Huguenin v. Baseley supra, notes p. 1271.
In the present case, these gifts, while gifts inter vivos, were undoubtedly intended by the donee to operate as a testamentary disposition of'the donor’s property. It is clear that the physical condition of the donor was critical, and his days brief in number. The presence of Mr. Anderson and the talk with him about drawing a will, and also the conversation detailed by Bayright, which he says he had with Mr. Haydock in the garden, point to ■the conclusion that it was supposed that the life of the donor would be brief, and that some disposition of his property, in view of his death, was requisite. For some reason, the will was never drawn, and it is transparent that the gifts were executed to fill the place of a will.
Now it seems to me, that, where it is apparent that a gift is ■made to accomplish the purpose of a will, to operate as such an instrument, without being surrounded by the formal guards which the statute has provided for the execution of a will, it raises an additional reason why a gift like this should be scanned with circumspection, and why the donee should clearly and convincingly show the validity of its execution.
[576]*576I entirely concur with the vice-chancellor that, instead of this being shown, it appears that the donor was surrounded with dominant influences which favored the donations, and the presumption that they actually fostered the act is supported by all the testimony in the case bearing upon their conduct toward the donor.
The decree should be affirmed, with costs.
Magie, J.
I vote to affirm the decree below, but prefer to put my vote solely on the ground of the incapacity of Mr. Haydock to make the gifts in question in this cause. I think there is, in the evidence, ample proof that deceased did not possess that degree of mental capacity which, even under the lenient rules on the subject, adopted in this state, will justify us in establishing such a disposition of his property. In the opinion of the vice-chancellor, the case presents on this point an “almost insoluble difficulty.” It certainly is not free from difficulty. But a careful examination of the evidence convinces me that there is quite sufficient proof to justify the conclusion above stated.
If compelled to decide this case upon the question of undue influence, I should have great difficulty. The careful and deliberate judgment of the vice-chancellor, pronounced after an opportunity to see and hear the witnesses, has, and ought to have, great weight. It ought not to be reversed, unless clearly wrong. It is undoubtedly proved that Mr. Haydock was- in a condition susceptible to influence. There are circumstances justifying serious suspicion that some influence was exerted on him. But it seems to me very questionable whether there is anything in the evidence justifying the inference that the influence was undue. I shquld, therefore, find difficulty in concluding that there is sufficient proof to justify this court in setting aside these gifts if Mr. Haydock had capacity to make them. But the decree is right, on the ground first mentioned, and I therefore vote to affirm.