The following opinion was filed January 13, 1903:
Cassoday, C. J.
The principal question presented is one of fact. That fact was resolved by the trial court iu favor of the defendants and against the plaintiff. The important question is whether such finding is against the clear preponderance of the evidence. To appreciate the evidence, it is necessary to consider the relations of the parties, and the circumstances prior to and attending the transaction. There are certain conceded facts which have a bearing upon the character of the transaction. The plaintiff was seventy-two years of age at the time of executing the papers in question. Thirty-three years prior to that time, she had taken her granddaughter Ida, then an infant, into her care and custody .and home, and reared and educated her and loved and treated Ida as her own child, until she married the defendant Fred E. Harriman, November 3, 1886, a few days before Ida became twenty-one years "of age. Thereupon Ida left the home of the plaintiff at Neenah, where she had lived most of her life, and went to and lived with her husband, and continued to live with him. and her children down to the time of her death, March 21, 1899. After .the marriage of Ida, November 3, 1886, the plaintiff continued to reside with her husband at Neenah, until he died, in May, 1889. Then she continued to live as a widow at her home in Neenah thereafter, while Ida lived with her husband and children at Appleton. The plaintiff testified, among other things, to the effect that she took care of her business from the time of her [137]*137husband’s death until she went to Appleton and put it into the hands of Ida, in March, 1898; that up to that time Ida did no business for her; that it was her intention that Ida should have what was left of her property after her death; that her first visit to Appleton on that business was March 30, 1898; that she could not say that she was there before the same month or week; that she had talked the matter over with Ida before she went to Appleton; that she went there partly to see Ida, and partly to provide that Ida should have her property when she got through with it; that she remembered signing the will, and knew its contents; that she took some of her title deeds from Neenah to Appleton about March 30, 1898; that she could not say whether she took them there before or after the will was drawn; that she could write, and read writing; that she saw Ida sign the bond and mortgage, and took them home with her to Neenah; thát she did not knowingly sign the deed to Ida; that the signature looked like hers, but that she did not know whether it was her signature or not. The plaintiff also testified as to her understanding of the oral agreement made at the time the papers were drawn, which differs in some respects from the transaction as evidenced by the deed to Ida and the bond and mortgage back, and is entirely inconsistent with her claim that she only intended to execute a will. According to her own testimony, she went to Appleton to put her business in the hands of Ida, and she took back home to Neenah with her the bond and mortgage executed by Ida, which was necessarily based upon the deed to Ida from the plaintiff. That deed was regularly witnessed, acknowledged, and recorded. To set aside such a deed, the evidence must be clear, satisfactory, and convincing, beyond all reasonable controversy. Lvnde v. Gudden, 109 Wis. 326, 328, 85 N. W. 323; Larson v. Pederson, 115 Wis. 191, 91 N. W. 659, 660. As stated by the trial court, from the plaintiff’s own testimony it is fairly apparent that she did sign the deed; that the ques[138]*138tions put to her were extremely leading, but that she refused anywhere to deny that the signature to the deed was her own ; that upon her own testimony the court would be compelled to find that she did sign the deed.
2. Counsel for the plaintiff contends that, if the plaintiff did sign the deed, her signature was obtained through fraud, and upon this point he seems to place his greatest reliance. In the language of the trial court:
“No claim is made, and there is no evidence to show, that any trick or subterfuge was resorted to to induce her to sign the deed. She admits executing the will. She did sign the deed. She claims, however, that both were signed at the same time, although there, is a difference of five days in the dates of the two; and Frank W. Harriman, the scrivener, testifies that they were respectively executed at the time they bear date.”
It is a significant fact that Mary E. Cooley, an old acquaintance of the plaintiff, and who lived within a block of Ida, was sent for to witness the will. If the deed and bond and mortgage had been executed at the same time, it is quite obvious that they, also, would have been witnessed by Mrs. Cooley, instead of the hired girl, as they were. The witness Frank W. Harriman, who drew and witnessed the papers, testified to the effect that he drew the will and that it was executed by the plaintiff March 25, 1898; that the plaintiff at that time wanted him to draw a contract and agreement substantially as evidenced by the deed to Ida and the bond and mortgage back, but that he could not do it then, because she did not have her title deeds with her; that March 30, 1898, the plaintiff was at Appleton again, when, at her request, he drew the deed from her to Ida, and read it over to her, and explained the contents to her before she signed it, and carefully called her attention to the reservation clause in it; that he also read to her the bond and mortgage, and that the papers were all executed at the same time, — March 30, [139]*1391898, — and witnessed by himself and the hired girl. That the plaintiff knew that she had previously conveyed her property to- Ida is manifest from the fact that September 17, 1898, she joined with Ida in conveying one of the lots to Lonis Nelson in consideration of $900, ont of which sum Ida paid the mortgage, mentioned, on the premises, and taxes and insurance thereon, and some for the personal needs of the plaintiff; that the balance of $400 Ida retained as her absolute property; and that such $400 is the same mentioned in the complaint in this action. The evidence in support of the findin'gs of the trial court is clear and convincing.
3. Counsel for the plaintiff insists that the facts warrant the presumption that the deed to Ida was procured by fraud and undue influence. In support of such contention he seems to rely upon Worrall's Appeal, 110 Pa. St. 349, 364, 365, 1 Atl. 380, 765, and Davis v. Dean, 66 Wis. 100, 26 N. W. 737; but the facts in each of those cases distinguish it broadly from the case at bar. In the Pennsylvania case cited, a young man, usually in poor health, just after becoming of age, when so ill that it was not believed he would recover, conveyed, the greater part of his property, of the value of $13,000, for the nominal consideration of $15, to a woman who had been a member of the same household from his infancy, and who had nursed him in infancy and sickness, and instructed him when young, and managed his property, and in whom he- confided as a mother. That is an extreme case, but it was there said:
“There is nothing in the relation of parent and child, or other near relation, to preclude one from accepting a benefit from the other, in the shape of a gift or of a contract, upon more advantageous terms than would have been granted to a stranger; and the fact that such a gift has been conferred, or contract made, will not warrant an inference that it has been procured by undue influence.
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The following opinion was filed January 13, 1903:
Cassoday, C. J.
The principal question presented is one of fact. That fact was resolved by the trial court iu favor of the defendants and against the plaintiff. The important question is whether such finding is against the clear preponderance of the evidence. To appreciate the evidence, it is necessary to consider the relations of the parties, and the circumstances prior to and attending the transaction. There are certain conceded facts which have a bearing upon the character of the transaction. The plaintiff was seventy-two years of age at the time of executing the papers in question. Thirty-three years prior to that time, she had taken her granddaughter Ida, then an infant, into her care and custody .and home, and reared and educated her and loved and treated Ida as her own child, until she married the defendant Fred E. Harriman, November 3, 1886, a few days before Ida became twenty-one years "of age. Thereupon Ida left the home of the plaintiff at Neenah, where she had lived most of her life, and went to and lived with her husband, and continued to live with him. and her children down to the time of her death, March 21, 1899. After .the marriage of Ida, November 3, 1886, the plaintiff continued to reside with her husband at Neenah, until he died, in May, 1889. Then she continued to live as a widow at her home in Neenah thereafter, while Ida lived with her husband and children at Appleton. The plaintiff testified, among other things, to the effect that she took care of her business from the time of her [137]*137husband’s death until she went to Appleton and put it into the hands of Ida, in March, 1898; that up to that time Ida did no business for her; that it was her intention that Ida should have what was left of her property after her death; that her first visit to Appleton on that business was March 30, 1898; that she could not say that she was there before the same month or week; that she had talked the matter over with Ida before she went to Appleton; that she went there partly to see Ida, and partly to provide that Ida should have her property when she got through with it; that she remembered signing the will, and knew its contents; that she took some of her title deeds from Neenah to Appleton about March 30, 1898; that she could not say whether she took them there before or after the will was drawn; that she could write, and read writing; that she saw Ida sign the bond and mortgage, and took them home with her to Neenah; thát she did not knowingly sign the deed to Ida; that the signature looked like hers, but that she did not know whether it was her signature or not. The plaintiff also testified as to her understanding of the oral agreement made at the time the papers were drawn, which differs in some respects from the transaction as evidenced by the deed to Ida and the bond and mortgage back, and is entirely inconsistent with her claim that she only intended to execute a will. According to her own testimony, she went to Appleton to put her business in the hands of Ida, and she took back home to Neenah with her the bond and mortgage executed by Ida, which was necessarily based upon the deed to Ida from the plaintiff. That deed was regularly witnessed, acknowledged, and recorded. To set aside such a deed, the evidence must be clear, satisfactory, and convincing, beyond all reasonable controversy. Lvnde v. Gudden, 109 Wis. 326, 328, 85 N. W. 323; Larson v. Pederson, 115 Wis. 191, 91 N. W. 659, 660. As stated by the trial court, from the plaintiff’s own testimony it is fairly apparent that she did sign the deed; that the ques[138]*138tions put to her were extremely leading, but that she refused anywhere to deny that the signature to the deed was her own ; that upon her own testimony the court would be compelled to find that she did sign the deed.
2. Counsel for the plaintiff contends that, if the plaintiff did sign the deed, her signature was obtained through fraud, and upon this point he seems to place his greatest reliance. In the language of the trial court:
“No claim is made, and there is no evidence to show, that any trick or subterfuge was resorted to to induce her to sign the deed. She admits executing the will. She did sign the deed. She claims, however, that both were signed at the same time, although there, is a difference of five days in the dates of the two; and Frank W. Harriman, the scrivener, testifies that they were respectively executed at the time they bear date.”
It is a significant fact that Mary E. Cooley, an old acquaintance of the plaintiff, and who lived within a block of Ida, was sent for to witness the will. If the deed and bond and mortgage had been executed at the same time, it is quite obvious that they, also, would have been witnessed by Mrs. Cooley, instead of the hired girl, as they were. The witness Frank W. Harriman, who drew and witnessed the papers, testified to the effect that he drew the will and that it was executed by the plaintiff March 25, 1898; that the plaintiff at that time wanted him to draw a contract and agreement substantially as evidenced by the deed to Ida and the bond and mortgage back, but that he could not do it then, because she did not have her title deeds with her; that March 30, 1898, the plaintiff was at Appleton again, when, at her request, he drew the deed from her to Ida, and read it over to her, and explained the contents to her before she signed it, and carefully called her attention to the reservation clause in it; that he also read to her the bond and mortgage, and that the papers were all executed at the same time, — March 30, [139]*1391898, — and witnessed by himself and the hired girl. That the plaintiff knew that she had previously conveyed her property to- Ida is manifest from the fact that September 17, 1898, she joined with Ida in conveying one of the lots to Lonis Nelson in consideration of $900, ont of which sum Ida paid the mortgage, mentioned, on the premises, and taxes and insurance thereon, and some for the personal needs of the plaintiff; that the balance of $400 Ida retained as her absolute property; and that such $400 is the same mentioned in the complaint in this action. The evidence in support of the findin'gs of the trial court is clear and convincing.
3. Counsel for the plaintiff insists that the facts warrant the presumption that the deed to Ida was procured by fraud and undue influence. In support of such contention he seems to rely upon Worrall's Appeal, 110 Pa. St. 349, 364, 365, 1 Atl. 380, 765, and Davis v. Dean, 66 Wis. 100, 26 N. W. 737; but the facts in each of those cases distinguish it broadly from the case at bar. In the Pennsylvania case cited, a young man, usually in poor health, just after becoming of age, when so ill that it was not believed he would recover, conveyed, the greater part of his property, of the value of $13,000, for the nominal consideration of $15, to a woman who had been a member of the same household from his infancy, and who had nursed him in infancy and sickness, and instructed him when young, and managed his property, and in whom he- confided as a mother. That is an extreme case, but it was there said:
“There is nothing in the relation of parent and child, or other near relation, to preclude one from accepting a benefit from the other, in the shape of a gift or of a contract, upon more advantageous terms than would have been granted to a stranger; and the fact that such a gift has been conferred, or contract made, will not warrant an inference that it has been procured by undue influence. Unless there is something suspicious in the circumstances, or the nature and amount of the [140]*140gift is such that it ought not to have been accepted even if freely tendered, tbe donee will not be called upon to show that tbe transaction was in all respects fair and bonest, and in no respect tainted by fraud or undue influence.”
In that case it was held that there were suspicious circumstances, as well as a mere nominal consideration. In a later case in that court it was held that:
“Where a contract between a mother and son is on its face fair, reasonable, ’ and conscionable, it may be enforced without proof that it was fully explained to the mother before she signed it, or that independent advice was obtained regarding it. It is the parental influence of the parent over the child, and not of the child over the parent, that requires the watchful care of the court.” Clark v. Clark, 174 Pa. St. 309, 34 Atl. 610, 619.
See Oberly v. Oberly, 190 Pa. St. 341, 42 Atl. 1105. In a still later case in that state it is held that:
“Business dealings between parents and children and other near relatives are not per se fraudulent. They must be treated just as are the transactions between ordinary debtors and creditors, and where the bona fides of their transactions is attacked the fraud must be clearly proved.” In re Coleman’s Estate, 193 Pa. St. 605, 44 Atl. 1085.
In a still later case in the same court “a gift of bonds to a church by an elderly woman, in her sound senses, for the consideration of the payment of interest to her on the bonds during her life and a covenant to keep in repair her cemetery lot,” was sustained upon the evidence in the case. Longenecker v. Zion E. L. Ch. 200 Pa. St. 567, 50 Atl. 244.
Every such case must necessarily turn upon its facts. The case of Davis v. Dean, supra, is so dissimilar in its facts from the case at bar that it is difficult to perceive why it should be cited. The same might be said of other cases in this court which have followed that case. Disch v. Timm, 101 Wis. 179, 191, 192, 77 N. W. 196. Eor cases more similar to the case at bar in their facts, see Cutler v. Cutler, 103 Wis. 258, 264, 79 N. W. 240; Fox v. Martin, 104 Wis. 581, 80 N. W. [141]*141921; Deck v. Deck, 106 Wis. 470, 82 N. W. 293. Here the clear preponderance of the evidence and some of the admitted facts repel every suggestion of want of capacity, secrecy, fraud, or undue influence, or any attempt to divert the property from going where it was ultimately designed to go. The plaintiff went from Neenah to Appleton to put her business and property in the hands of Ida, and the papers were drawn to make that purpose effectual. No question was made as to the good faith of the transaction during the life of Ida, which continued for about a year after the papers were executed. Had Ida continued to live, and had she survived the plaintiff, there is no probability that any controversy would ever have arisen. But unexpectedly to the plaintiff and all others, Ida died first. Then the plaintiff manifestly discovered that she had not fixed her property as she would have done had she anticipated such a contingency. But that is no ground for setting aside the transaction.
4. Error is assigned because near the close of the trial the court refused to grant a continuance in order to take a supplemental deposition of the plaintiff, who was sick at the time, in respect to a mistake in her original examination in regard to an insurance policy, and also to rebut a specific statement of the witness Frank W. Harriman as to communications he made to the plaintiff at the time of drawing the papers. In denying the application, the court said: “If it would help you in the least, the court would grant the motion for a continuance, but I don’t see that it would be of any earthly use to you.” We perceive no error in such ruling.
By the Court. — The judgment of the circuit court is affirmed.
Upon a motion for a rehearing there was a brief by Wesley Mott, for the appellant, and a brief by Humphrey Pierce and A. M. Spencer, for the respondents.
The motion was denied March 21, 1903,