Mr. Justice Scott
delivered the opinion of the court:
The evidence warrants the conclusion that the relation between Andrew Sample and the four Irwin brothers was fiduciary in its character at the time of the transaction under investigation in this cause. They were his brothers-in-law and lived in the same neighborhood with him and had been frequently at his home, especially during the long illness of his wife immediately preceding her death. George Irwin lived within a quarter of a mile of Andrew Sample, and had assisted him in the transaction of his business. The relations between them and him were exceedingly cordial and intimate, and the trust and confidence reposed by him in them was such that he regarded his property or his interests as being entirely safe in their hands. Immediately following his wife’s death, he was in a condition of great prostration, both physically and mentally, and while not disqualified to transact business affairs of an ordinary character, was yet, on account of the weakness of his intellect, consequent upon his great exhaustion, unfit to care for his own rights in dealing with persons desirous of furthering their own interests at his expense.
Mrs. Sample died on Wednesday, the 22d day of January, 1902. On the day following, the four brothers were at the Sample home, where there was some discussion among them as to who should administer upon the estate of the deceased. The funeral occurred on Friday, and on that day Andrew Sample requested them to return on Saturday, and at that time it was agreed that Robert Irwin should act as administrator. Sample then delivered to Robert the personal property of the estate, and as the brothers were leaving adjured them to treat him “right in this thing;” and he says they assured him that they would do so, and his testimony in that regard is not denied.
On the succeeding Monday, William. J. Irwin came to Sample’s home, accompanied by an attorney, Paul Houser, who was also a notary public. William’s purpose was to secure Sample’s signature to a conveyance which transferred to the four Irwin brothers his interest in the real estate of the deceased, which also, recited that he thereby transferred his interest in his wife’s personal property to the grantees in the deed, and waived his right to administer her estate. The four Irwin brothers contended that they had some interest in the eighty acres of land which stood in the name of Andrew Sample, and they proposed to quit-claim that to him as a consideration for the execution of the instrument above mentioned which was to be signed by him. Sample had in the past occasionally employed Stephen A. Foley, an attorney residing at Lincoln, in Logan county, in whom he had great confidence, and he had suggested to Robert that he take Mr. Foley’s advice about the manner of administering the estate. According to the testimony of Paul Houser, William J. Irwin secured Sample’s signature to this instrument by stating that he had brought it there to be signed according to Mr. Foley’s instructions, and that in accordance with its terms, Robert Irwin was to be appointed administrator. Mr. Houser says, however, that he does not remember the exact words that William used. Sample states that Irwin further said to him on that occasion that “Mr. Foley sent out word to me that he was tending to my business and everything would be done right.” Mr. Foley testified that he was not acting as Sample’s attorney, that he did not send any such message by William J. Irwin, and that he did not send any instruction to Sample in reference to signing the instrument in question. The deed from the four Irwin brothers to Sample had then been signed by three of the grantors named therein, and Sample was assured by William that it would be signed by the remaining grantor. Under these circumstances, relying, as he says, upon the pretended message conveyed to him from Mr. Foley, Sample signed and acknowledged the instrument which had been prepared for his signature. The notary’s presence, on that occasion, was secured by William so that Sample’s acknowledgment might be taken. Mr. Houser did not know the purpose of the visit until after they were in the house. He testifies that Sample was in a dazed and stupid condition, and that he was not fully satisfied that Sample understood what he was doing when he executed the conveyance.
In our judgment, the evidence warrants the finding that the execution of this instrument was induced by the unfounded claim which the four Irwin brothers set up to the eighty acres of land owned by Andrew Sample, and by the false statements made to him by William J. Irwin in'reference to the message sent by Mr. Foley to Sample. His confidence and trust in these four brothers-in-law and his weakened mentality contributed to make him the victim of their wrongdoing.
The following, from section 947, volume 2, of Pomeroy on Equity Jurisprudence, has several times received the approval of this court: “The term fiduciary or confidential relation, as used in this connection, is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused,—in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. The only question is, does such a relation in fact exist?” Likewise, language from section 956 of the same volume, which reads: “It is settled by an overwhelming weight of authority, that the principle extends to every possible case in which a fiduciary relation exists in fact, in which there is confidence reposed on one side, and the resulting superiority and influence on the other. The relation and the duties involved in it need not be legal; it may be moral, social, domestic or merely personal.” (Roby v. Colehour, 135 Ill. 300; Thomas v. Whitney, 186 id. 225; Walker v. Shepard, 210 id. 100.) The court below properly applied this principle to the transaction involved in this proceeding.
We are not unmindful of the testimony of the four Irwin brothers and of the son and daughter of William J. Irwin, that at the time of the meeting at the Sample home on the Saturday after the funeral, Andrew Sample stated that in accordance with the request of his wife, he desired to transfer to her five brothers and her niece, the daughter of the deceased sister, being all her heirs other than himself, the property owned by her and held in her name at the time of her death in exchange for a deed from them conveying to him all their interest in the eighty acres which had been conveyed to him. We are disposed to the view that this contention is an afterthought on the part of the four Irwin brothers. The original answer of defendants stated that the instrument executed by Andrew Sample was upon a “good and sufficient and valuable and ample consideration for the said acts and conveyances and for each of them,- and that said transaction was and is an honest, open and fair business transaction between man and man.” This averment is wholly without support in the evidence. On the contrary, there is no basis in the proof for any conclusion that there was any consideration whatever for the conveyance of about $10,000 worth of property by Sample, except the execution of a quitclaim deed to him, which conveyed nothing.
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Mr. Justice Scott
delivered the opinion of the court:
The evidence warrants the conclusion that the relation between Andrew Sample and the four Irwin brothers was fiduciary in its character at the time of the transaction under investigation in this cause. They were his brothers-in-law and lived in the same neighborhood with him and had been frequently at his home, especially during the long illness of his wife immediately preceding her death. George Irwin lived within a quarter of a mile of Andrew Sample, and had assisted him in the transaction of his business. The relations between them and him were exceedingly cordial and intimate, and the trust and confidence reposed by him in them was such that he regarded his property or his interests as being entirely safe in their hands. Immediately following his wife’s death, he was in a condition of great prostration, both physically and mentally, and while not disqualified to transact business affairs of an ordinary character, was yet, on account of the weakness of his intellect, consequent upon his great exhaustion, unfit to care for his own rights in dealing with persons desirous of furthering their own interests at his expense.
Mrs. Sample died on Wednesday, the 22d day of January, 1902. On the day following, the four brothers were at the Sample home, where there was some discussion among them as to who should administer upon the estate of the deceased. The funeral occurred on Friday, and on that day Andrew Sample requested them to return on Saturday, and at that time it was agreed that Robert Irwin should act as administrator. Sample then delivered to Robert the personal property of the estate, and as the brothers were leaving adjured them to treat him “right in this thing;” and he says they assured him that they would do so, and his testimony in that regard is not denied.
On the succeeding Monday, William. J. Irwin came to Sample’s home, accompanied by an attorney, Paul Houser, who was also a notary public. William’s purpose was to secure Sample’s signature to a conveyance which transferred to the four Irwin brothers his interest in the real estate of the deceased, which also, recited that he thereby transferred his interest in his wife’s personal property to the grantees in the deed, and waived his right to administer her estate. The four Irwin brothers contended that they had some interest in the eighty acres of land which stood in the name of Andrew Sample, and they proposed to quit-claim that to him as a consideration for the execution of the instrument above mentioned which was to be signed by him. Sample had in the past occasionally employed Stephen A. Foley, an attorney residing at Lincoln, in Logan county, in whom he had great confidence, and he had suggested to Robert that he take Mr. Foley’s advice about the manner of administering the estate. According to the testimony of Paul Houser, William J. Irwin secured Sample’s signature to this instrument by stating that he had brought it there to be signed according to Mr. Foley’s instructions, and that in accordance with its terms, Robert Irwin was to be appointed administrator. Mr. Houser says, however, that he does not remember the exact words that William used. Sample states that Irwin further said to him on that occasion that “Mr. Foley sent out word to me that he was tending to my business and everything would be done right.” Mr. Foley testified that he was not acting as Sample’s attorney, that he did not send any such message by William J. Irwin, and that he did not send any instruction to Sample in reference to signing the instrument in question. The deed from the four Irwin brothers to Sample had then been signed by three of the grantors named therein, and Sample was assured by William that it would be signed by the remaining grantor. Under these circumstances, relying, as he says, upon the pretended message conveyed to him from Mr. Foley, Sample signed and acknowledged the instrument which had been prepared for his signature. The notary’s presence, on that occasion, was secured by William so that Sample’s acknowledgment might be taken. Mr. Houser did not know the purpose of the visit until after they were in the house. He testifies that Sample was in a dazed and stupid condition, and that he was not fully satisfied that Sample understood what he was doing when he executed the conveyance.
In our judgment, the evidence warrants the finding that the execution of this instrument was induced by the unfounded claim which the four Irwin brothers set up to the eighty acres of land owned by Andrew Sample, and by the false statements made to him by William J. Irwin in'reference to the message sent by Mr. Foley to Sample. His confidence and trust in these four brothers-in-law and his weakened mentality contributed to make him the victim of their wrongdoing.
The following, from section 947, volume 2, of Pomeroy on Equity Jurisprudence, has several times received the approval of this court: “The term fiduciary or confidential relation, as used in this connection, is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused,—in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. The only question is, does such a relation in fact exist?” Likewise, language from section 956 of the same volume, which reads: “It is settled by an overwhelming weight of authority, that the principle extends to every possible case in which a fiduciary relation exists in fact, in which there is confidence reposed on one side, and the resulting superiority and influence on the other. The relation and the duties involved in it need not be legal; it may be moral, social, domestic or merely personal.” (Roby v. Colehour, 135 Ill. 300; Thomas v. Whitney, 186 id. 225; Walker v. Shepard, 210 id. 100.) The court below properly applied this principle to the transaction involved in this proceeding.
We are not unmindful of the testimony of the four Irwin brothers and of the son and daughter of William J. Irwin, that at the time of the meeting at the Sample home on the Saturday after the funeral, Andrew Sample stated that in accordance with the request of his wife, he desired to transfer to her five brothers and her niece, the daughter of the deceased sister, being all her heirs other than himself, the property owned by her and held in her name at the time of her death in exchange for a deed from them conveying to him all their interest in the eighty acres which had been conveyed to him. We are disposed to the view that this contention is an afterthought on the part of the four Irwin brothers. The original answer of defendants stated that the instrument executed by Andrew Sample was upon a “good and sufficient and valuable and ample consideration for the said acts and conveyances and for each of them,- and that said transaction was and is an honest, open and fair business transaction between man and man.” This averment is wholly without support in the evidence. On the contrary, there is no basis in the proof for any conclusion that there was any consideration whatever for the conveyance of about $10,000 worth of property by Sample, except the execution of a quitclaim deed to him, which conveyed nothing. On the 21st of December, 1903, after the trial of the cause and on the same day that the final decree was entered, in their answer, filed on that day, to the amended bill, the four Irwin brothers state that the instrument in question “was signed by complainant of his own free will, and understanding the legal effect of said deed, signed the same for the purpose of carrying into effect the previous arrangement and understanding by which he had agreed to carry into effect the request of his wife, and relinquish all right, title and interest in the personal property and real estate held by her to her brothers and niece living in Ireland.” This defense had not been theretofore disclosed by answer.
The conveyance which the bill seeks to set aside transferred the property to the four Irwin brothers alone. When they took that deed, had they been attempting to carry out any such arrangement as they testify existed and as they set up by this answer to the amended bill, the instrument taken should have provided in some way for passing one-sixth of this property to John Irwin and a like portion to Lydia Jane Watson, the brother and niece residing in Ireland; so that, in any event, the conveyance taken did not carry out the arrangement which the grantees therein swear it was made to effectuate, and the instrument which they themselves had prepared and executed indicates that their testimony is untrue and their defense without merit.
If, however, the preponderance of the evidence showed Andrew Sample’s purpose to be that stated by these grantees, we think it should be attributed to the unfounded claim set up by them to an interest in the real estate owned by him, and the fact that the same claim may have been made by his wife in her lifetime does not lend it sanctity and does not better their standing in a court of equity. So far as disclosed by this record, it was without merit, whether asserted by her or by them. The most that the evidence tends to prove in this regard is that at one time he owed her for a part of the money invested in his land. There is no contention that she ever owned any interest of any character in the land purchased by him. Under such circumstances, in view of the relations existing between the parties, it is manifest that the conveyance should not stand.
The decree of the court below, however, is erroneous in one respect. Robert Irwin is administrator of the estate of the deceased and is now in possession of the personal property left by her. The decree orders that ,he surrender to Sample all the personal property received by him belonging to her estate. The bill does not seek to affect his status as administrator. The conveyance made by Andrew Sample was properly canceled and set aside, but it was not proper to direct the administrator to turn over the personal assets to defendant in error. The conveyance being for naught held and esteemed, if Robert Irwin shall continue to act as administrator until the estate is finally closed, it will be his duty at that time to pay and deliver to Andrew Sample, as heir of his deceased wife, all the personal assets of the estate. Should he be removed as such administrator and another appointed in his stead, then these assets should be surrendered to his successor.
The decree of the circuit court, in so far as it directs Robert Irwin to account for and pay over to Andrew Sample the personal assets at this time, is reversed. In all other respects it is affirmed.
The costs of this court will be adjudged, one-half against plaintiffs in error and one-half against defendant in error.
Defendant in error has filed an additional abstract of the record and moves that the expense thereof be taxed as costs. We think the necessity for the additional abstract appears, and the motion will be allowed.
Decree affirmed in part and reversed in part.