IN BANC.
PER CURIAM.
The following opinion delivered by Valliant, P. J., in Division No. 1, is adopted as the opinion of the Court in Banc.
All concur except Woodson, J., who files a dissenting opinion.
IN DIVISION ONE.
VALLIANT, P. J.
Rebecca Huffman, who has died since this appeal has been pending, and whose executor has been made a party herein, was the widow, and the other parties, plaintiffs and the defendant, are the children1 and heirs at law of Jacob F. Huffman, deceased, who died intestate February 29, 1904. Six days before his death, he executed a deed conveying to his son William T., the defendant, 120 acres of land; the aim of this suit is to set aside that deed on the alleged grounds that the intestate was not of sufficient mental capacity to make it and that defendant exerted undue influence over him. The trial resulted in a finding and judgment for the defendant and the plaintiffs appealed.
The evidence for the plaintiffs established the fact that the intestate, then an old man of seventy-four years, and his wife Rebecca sixty-nine, in September, 1903, moved from his farm on which he had before been living to the home of defendant, which was another [187]*187farra, and lived there, in his son’s home, until he died, that is, from some day not specified in September, 1903, to February 29, 1904. Both these farms belonged to him, that is, the title to both was in him. For two or three years he had been in very bad health; according to the widow’s testimony, he had asthma, rheumatism, heart trouble, kidney trouble and other bodily infirmities ; he required great care and tender treatment and these he received at her hands. Questioned as to his mental condition on the day the deed was executed she said, “It was very unbalanced, his mind was, his condition in every way.” Again she said: “His mental condition was bad; ... . he could not remember anything scarcely at all, he never said anything, he never talked any that day; if I asked him anything he would not answer, all he wanted was a little milk.” Dr. McMurry, the physician who attended him, saw him on the 26th of February, which was three days after the execution of the deed and three days before his death, a witness for plaintiffs, described his physical eondition as very bad, much as Mrs. Huffman had described it. He was then asked to say “as to his mental condition as to whether or not in your opinion he was able to make contracts and transact ordinary business? A. He would only talk when I talked to him, and then give me very short answers; he seemed to understand what I said to him and I understood what he said; his answers were simply, ‘Yes’ or, ‘No,’ or, ‘Feeling very bad, ’ is about the extent of what he said. Q. You have not answered my question, I asked you whether or not in your opinion as a physician he was mentally able to make contracts and carry on ordinary business? A. Well, he was in no shape for a general line of business. He was sufficiently rational to appreciate what I said and give me a rational answer, but to judge of the degree and strength and liability, I could not draw a line there hardly.” That is the substance [188]*188of the plaintiff’s testimony on the point of mental incapacity.
On the subject of undue influence the plaintiff’s testimony tended to show that after the old man moved to defendant’s home the latter attended to the renting of his farm for Kim and attended to negotiating some real estate loans for him; that on the day before the deed was executed defendant went to Paris, the county seat, and employed an attorney who was also a notary public to come out to the farm and write the deed and take the acknowledgment; he insisted that the lawyer come the next afternoon, and the lawyer went as he agreed to do, arriving rather late in the afternoon, because of obstructions in the road caused by rain-flooded creeks; that when the lawyer arrived defendant met him at the fence and conducted him into the house and to the door of the room where the old man and Mrs. Huffman were and announced to them that Mr. Rodes (the attorney) had arrived; that Mrs. Huffman had not been informed that the attorney was expected or what his business was. Her account of the meeting and what occurred is substantially as follows: Mr. Rodes stated' that he had been requested by William (the defendant) to come out there; and he requested to have .William called into the room, which was done; when William came Rodes said he was ready for information as to the lines of the 120 acres and he and William went out on the porch and there William showed him how the lines were, then they came back into the room; the paper that Rodes had prepared became blurred with water and he had to write another; after it-was written he read it to William and asked him if it was right and William said it was. Rodes said, “Mrs. Huffman you must sign it, ’ ’ but she said she would not, because they had not given her any of the improvements and she would not sign it until Ed. Huffman was provided for; then there was some wrangling, in which she told them that her husband was not competent to make a [189]*189deed, she said: “Well, we fussed a while and I looked at my husband, he looked so poor and bad, and he was sitting there not hearing’ or seeing anything at all, I just thought not to have any trouble I will sign it.” She also said the deed was not read to her or her husband; she did not see the deed in her husband’s hands at all and did not think he delivered it to William. Plaintiff’s testimony also tended to show that this 120 acres was the only land the old man owned that was not encumbered and that it was worth $500 to $1,000 more than the other 120 acres.
On the part of the defendant the testimony was to the following effect: Neighbors and acquaintances testified that they called on the old man and he recognized them and talked with them rationally, he complained of. his physical infirmities and said he was suffering, but they testified that they saw no impairment of his mental faculties. The family had come to Missouri from Illinois, and this 240-acre farm, 120 acres of which were covered by this deed, was purchased with the proceeds of the sale of their farm in Illinois, in which the defendant had an interest. The old man had at several times in past years been heard to say that half the farm belonged to William and he refused to put this 120-acre tract into a mortgage he was giving for money he was then borrowing because he said it rightfully belonged to William, and when on one such occasion it was suggested to him by the bank cashier in the course of the transaction that if it belonged to William he ought to give William a deed to it he said it was unnecessary because all the family understood it. The 120 acres in question were not more valuable than the remaining 120, except it contained more improvements, which were not very valuable.
The testimony of Mr. Rodes was that he was employed by William to go out to the farm and write the deed and take the acknowledgments and that William paid him for the work after it was done. As to [190]*190what occurred after he arrived at the farm he said in substance that when he entered the room he was cold and he first warmed himself by the stove, then turned to Mr.
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IN BANC.
PER CURIAM.
The following opinion delivered by Valliant, P. J., in Division No. 1, is adopted as the opinion of the Court in Banc.
All concur except Woodson, J., who files a dissenting opinion.
IN DIVISION ONE.
VALLIANT, P. J.
Rebecca Huffman, who has died since this appeal has been pending, and whose executor has been made a party herein, was the widow, and the other parties, plaintiffs and the defendant, are the children1 and heirs at law of Jacob F. Huffman, deceased, who died intestate February 29, 1904. Six days before his death, he executed a deed conveying to his son William T., the defendant, 120 acres of land; the aim of this suit is to set aside that deed on the alleged grounds that the intestate was not of sufficient mental capacity to make it and that defendant exerted undue influence over him. The trial resulted in a finding and judgment for the defendant and the plaintiffs appealed.
The evidence for the plaintiffs established the fact that the intestate, then an old man of seventy-four years, and his wife Rebecca sixty-nine, in September, 1903, moved from his farm on which he had before been living to the home of defendant, which was another [187]*187farra, and lived there, in his son’s home, until he died, that is, from some day not specified in September, 1903, to February 29, 1904. Both these farms belonged to him, that is, the title to both was in him. For two or three years he had been in very bad health; according to the widow’s testimony, he had asthma, rheumatism, heart trouble, kidney trouble and other bodily infirmities ; he required great care and tender treatment and these he received at her hands. Questioned as to his mental condition on the day the deed was executed she said, “It was very unbalanced, his mind was, his condition in every way.” Again she said: “His mental condition was bad; ... . he could not remember anything scarcely at all, he never said anything, he never talked any that day; if I asked him anything he would not answer, all he wanted was a little milk.” Dr. McMurry, the physician who attended him, saw him on the 26th of February, which was three days after the execution of the deed and three days before his death, a witness for plaintiffs, described his physical eondition as very bad, much as Mrs. Huffman had described it. He was then asked to say “as to his mental condition as to whether or not in your opinion he was able to make contracts and transact ordinary business? A. He would only talk when I talked to him, and then give me very short answers; he seemed to understand what I said to him and I understood what he said; his answers were simply, ‘Yes’ or, ‘No,’ or, ‘Feeling very bad, ’ is about the extent of what he said. Q. You have not answered my question, I asked you whether or not in your opinion as a physician he was mentally able to make contracts and carry on ordinary business? A. Well, he was in no shape for a general line of business. He was sufficiently rational to appreciate what I said and give me a rational answer, but to judge of the degree and strength and liability, I could not draw a line there hardly.” That is the substance [188]*188of the plaintiff’s testimony on the point of mental incapacity.
On the subject of undue influence the plaintiff’s testimony tended to show that after the old man moved to defendant’s home the latter attended to the renting of his farm for Kim and attended to negotiating some real estate loans for him; that on the day before the deed was executed defendant went to Paris, the county seat, and employed an attorney who was also a notary public to come out to the farm and write the deed and take the acknowledgment; he insisted that the lawyer come the next afternoon, and the lawyer went as he agreed to do, arriving rather late in the afternoon, because of obstructions in the road caused by rain-flooded creeks; that when the lawyer arrived defendant met him at the fence and conducted him into the house and to the door of the room where the old man and Mrs. Huffman were and announced to them that Mr. Rodes (the attorney) had arrived; that Mrs. Huffman had not been informed that the attorney was expected or what his business was. Her account of the meeting and what occurred is substantially as follows: Mr. Rodes stated' that he had been requested by William (the defendant) to come out there; and he requested to have .William called into the room, which was done; when William came Rodes said he was ready for information as to the lines of the 120 acres and he and William went out on the porch and there William showed him how the lines were, then they came back into the room; the paper that Rodes had prepared became blurred with water and he had to write another; after it-was written he read it to William and asked him if it was right and William said it was. Rodes said, “Mrs. Huffman you must sign it, ’ ’ but she said she would not, because they had not given her any of the improvements and she would not sign it until Ed. Huffman was provided for; then there was some wrangling, in which she told them that her husband was not competent to make a [189]*189deed, she said: “Well, we fussed a while and I looked at my husband, he looked so poor and bad, and he was sitting there not hearing’ or seeing anything at all, I just thought not to have any trouble I will sign it.” She also said the deed was not read to her or her husband; she did not see the deed in her husband’s hands at all and did not think he delivered it to William. Plaintiff’s testimony also tended to show that this 120 acres was the only land the old man owned that was not encumbered and that it was worth $500 to $1,000 more than the other 120 acres.
On the part of the defendant the testimony was to the following effect: Neighbors and acquaintances testified that they called on the old man and he recognized them and talked with them rationally, he complained of. his physical infirmities and said he was suffering, but they testified that they saw no impairment of his mental faculties. The family had come to Missouri from Illinois, and this 240-acre farm, 120 acres of which were covered by this deed, was purchased with the proceeds of the sale of their farm in Illinois, in which the defendant had an interest. The old man had at several times in past years been heard to say that half the farm belonged to William and he refused to put this 120-acre tract into a mortgage he was giving for money he was then borrowing because he said it rightfully belonged to William, and when on one such occasion it was suggested to him by the bank cashier in the course of the transaction that if it belonged to William he ought to give William a deed to it he said it was unnecessary because all the family understood it. The 120 acres in question were not more valuable than the remaining 120, except it contained more improvements, which were not very valuable.
The testimony of Mr. Rodes was that he was employed by William to go out to the farm and write the deed and take the acknowledgments and that William paid him for the work after it was done. As to [190]*190what occurred after he arrived at the farm he said in substance that when he entered the room he was cold and he first warmed himself by the stove, then turned to Mr. Huffman and said it is growing late and we had better get about that business, “I asked him what land is it you want to deed to “William, he says, I want you to deed all of this land that is unincumbered to William.” Witness then prepared the deed filling in the names and when he got down to stating the consideration he asked, “Mr. Huffman what consideration do, you want put in this deed, he said, $40 — just what the land cost,” referring to the cost price years ago. William was not in the room at that time, only Mr. and Mrs. Huffman and the attorney. Mrs. Huffman made objection to signing the deed because she said there was some mistake in the lines that gave William the house, then she called William into the room, he pointed out the lines (it. does not appear from the evidence from what document the pointing out was done, but presumably from a map), then William went out of the room again and then Mrs. Huffman said some provision should be made for Eddie because of some improvement Eddie had put on the Illinois farm; Rodes said he knew nothing about that, then Mrs. Huffman-called William into the room again and requested that he remain there; then she and William discussed her proposal to make provision for Eddie, William contended that the alleged improvement made by Eddie was of no value, the old man interrupted the discussion saying, “Eddie has forfeited any right he had there by leaving and going to California.” The discussion led to no agreement; at its close the attorney asked Mrs. Huffman if she was then willing to sign the deed, she said, “Mr. Rodes, it isn’t legal, my husband isn’t able to make a deed.” Mr. Rodes then turned to Mr. Huffman and said: “Q. Do you know who I am? A. Yes, Friend Rodes. Q. Do you know what I came out here for? A. Yes. Q. What was it? A. To make a [191]*191deed to William. Q. Do you want that deed made? A. I do. Q. Do you remember a conversation you had with me in my office in the fall of 1900, in which you told me that William T. Huffman owned a half interest in this prairie farm? A. I do. Q. Do you recall that you stated that you expected to make him a deed? A. I do. Q. Is it your wish that the deed now be made? A. It is.” Mr. Bodes then turned to Mrs. Huffman and said, “Mr. Huffman is entirely rational and competent, knows what he is doing, are you willing to sign the deed?” and she answered yes. Then the deed was signed, Mr. Huffman saying he was not able to write, he touched the pen as Mr. Bodes made his mark and Mrs. Huffman signed and they both acknowledged it, then it was handed to Mr. Huffman and he handed it to William.
Mrs. Huffman testified that her husband was forgetful, that his physical sufferings rendered him helpless and in her opinion he was not capable of making a deed. Dr. McMurry who knew and well understood his physical condition, his general breaking down, speaking of his mental condition would venture no farther than to say that “he was in no shape for a general line of business. He was sufficiently rational to appreciate what I said and give me a rational answer, but to judge of the degree and strength and liability I could not draw a line there hardly. ’ ’ The testimony of defendant’s witnesses showed that he was of as sound mind as could be .expected of a man of his age and physical infirmities. He had passed his allotted three score years and ten, and by reason of his strength he had gone beyond that age, yet, in the language of the Psalmist, his “strength was labor and sorrow.”
We do not mean to say that there was no evidence to support the plaintiff’s claim. The evidence was conflicting, but the chancellor who tried the case had a better opportunity than we have to judge of the reliance that ought to be placed in the testimony of each [192]*192witness. He had the witnesses before him, he heard them and saw them, under examination and cross-examination, and it is the experience of all triers of the fact that the personal appearance and manner of the witnesses have much influence, and rightly so, in weighing the evidence and reaching a verdict. It is our duty under such circumstances to defer to the findings of the trial judge and so we do in this case.
On the charge of undue influence there was no evidence, but the plaintiffs rely on what they consider was the fiduciary relation existing between father and son which they contend threw the burden of proof on the son. The only evidence for plaintiffs on that point was that the old father and mother, when the former had.become so helpless by reason of his physical infirmities that his every want had to be attended to by his wife, moved to their son’s home. What the purpose was, or at whose instance or request this move was made, we have only to surmise; giving the strongest inference in favor of the plaintiffs, we may surmise that it was on the invitation of the son, and if so, then, in the absence of any evidence tending to show a sinister motive, it was to his credit. After the father had moved to the son’s home the son attended to the renting of his farm for him and to the negotiating of a. real estate loan; that is all he did in the way of attending to his business until we come to the transaction which is the subject of this suit. It is but natural to presume that the son or his wife or both ministered to the wants and comfort of his father and mother while they were under his roof, that they at least relieved the mother of household duties that would have burdened her if she was living alone with her husband. The mother who was hostile to this defendant in relation to this deed gave no hint of any conduct on his part that could be construed as imposing his influence on the old man.
[193]*193In the brief of the learned counsel are cited many cases in this court in which it has been held that the circumstances in those cases created a fiduciary relation and cast the burden on him who claimed under the instrument in question to show that it was the fair and the free will of the maker. There is no disputing that proposition. But it is not every case in which an aged, sick and infirm parent who is under the ministering care of a son or daughter that raises such a presumption of undue influence as would justify the setting aside of a deed or will in the child’s favor. [Bonsal v. Randall, 192 Mo. 525.] The old father in the case at bar could not attend to the renting of his farm or negotiating the loan, what then more natural than that he should ask the son in whose home he was living to attend to those things for him? The mother testified that she had heard nothing of the contemplation of making this deed until the arrival of the attorney. Why she was not informed of it, if in fact she was not, we do not know; if it was intentionally kept a secret from her it would be a suspicious circumstance; but she might have been mistaken about that fact or have forgotten it, because she herself was old and care-worn. The defendant could not explain, because one party to the contract in question being dead the other was incompetent as a witness. What passed between the father and the son that led to the son’s going to town and employing the lawyer to write the deed we do not know, but we do know from the very satisfactory testimony of Mr. Rodes, whose testimony bears on its face the character of candor and intelligence, that Mr. Huffman was not surprised by the coming of the lawyer, he was expecting him and knew what he came for. Witten Mrs. Huffman expressed her opinion that her husband did not know what he was about to do, Mr. Rodes asked him questions in her presence on that subject and received answers that not only satis[194]*194fled him hut seemingly satisfied Mrs. Huffman also, because she then signed the deed. Whether it was the father who, realizing that his days were coming to a close, proposed to the son to go to the county seat and engage a lawyer to come out to the farm for this purpose, or the son proposed it to the father, we have no means of knowing, because, if the mother did not know, the only living person who did know was the son who was incompetent to testify, and therefore in the absence of evidence the only ground for plaintiff’s contention is that a presumption arises in their favor on account of the supposed fiduciary relation casting the burden of proof on the defendant. If the burden of proof was on the defendant, the thing for him to prove was that the deed was an honest and fair transaction and that it expressed the free will of the grantor. If that burden was on him he has discharged it, he has shown that it was executed under circumstances free from suspicion and has also shown by several witnesses, reputable and intelligent, that the father, several years before this transaction, said that one-half this land belonged to William, that it was purchased to that extent with the proceeds of William’s interest in the Illinois farm. We conclude, therefore, that the making of the deed was but a delayed act of justice; so the chancellor thought and so we think. The judgment is affirmed.