[214]*214JOHNSON, Judge.
This is an action to quiet title to the following described real property in Bot-tineau County, North Dakota, to wit:
“The South Half of the Southeast Quarter and the Northwest Quarter of the Southeast Quarter of Section Seven, Section Seventeen, the West Half of Section Sixteen, the Northeast Quarter, the Northeast Quarter of the Southeast Quarter, the East Half of the Northwest Quarter, less 23.21 acres conveyed to the United States, and the South Half of the Southeast Quarter, less 32.58 acres conveyed to the United States, of Section Nineteen, and the Southwest Quarter, the West Half of the Northwest Quarter, the Southeast Quarter of the North West Quarter, the South west Quarter of the Northeast Quarter and the West Half of the Southeast Quarter of Section Twenty, all in Township One Hundred Sixty-one North, of Range Seventy-eight West of the 5th. Principal Meridian.”
The real purpose of the action is to cancel and set aside a warranty deed executed by Ole Johnson on September 4, 1951, to himself and to his son Victor Johnson, as joint tenants and not as tenants in common, with right of survivorship. Originally when this action was started it included the Northeast Quarter of the Northwest Quarter (NEJ4 NW}4), the North Half of the Northeast Quarter (Nj4 NEJ4), and the Southeast Quarter of the Northeast Quarter (SEJ4 NEJ4) of Section 20, Township 161, North of Range 78. This real property had been purchased by the defendant from third parties. During the trial it was stipulated that this property was not to be involved in the determination of this action, and that the plaintiffs did not assert any title thereto.
The action was tried to the court without a jury. The plaintiffs attacked the validity of the deed of September 4, 1951, on two grounds: first, that the deceased, Ole Johnson, at the time of the execution of the deed was not competent and lacked the mental capacity to execute the same; second, that he executed the deed under the undue influence of his son, Victor Johnson..
The trial court in a comprehensive memorandum opinion analyzed the facts presented, found the deed to be valid, and ordered judgment for the defendant. The plaintiffs-appeal from this judgment and demand a trial de novo.
In discussing the evidence presented at the trial, the court said:
“ * * * The record has been searched in vain for any evidence of any actual fraud practiced upon the deceased by the defendant in procuring the deed, and while the deceased, Ole Johnson, may have been influenced to some extent by the defendant, the Court does not feel that it can be properly held to be undue influence as would warrant a Court in disturbing the transaction. There is nothing in the evidence in this case to indicate undue influence, that is, influence that is unrighteous, illegal, or designed to perpetrate a wrong, or of such character to amount to fraud or coercion, or that the grantor was overreached and deceived by any false representation or stratagem or by coercion, physical or moral, or that the said Ole Johnson at the time of the execution thereof was so weak mentally as not to be able to comprehend the nature and effect of the transaction involved.”
The trial court found as ultimate facts::
“IV
“That the said Ole Johnson, grantor in said joint tenancy deed, at the time of the execution thereof, namely, September 4, 1951, was mentally competent to make and execute said deed, and that he fully knew and understood the meaning and effect of said deed and what was conveyed thereby, and. [215]*215was able to and did exercise his own free will in making said conveyance.
“V
“That no undue influence or fraud was exercised by the defendant, Victor Johnson, over the said Ole Johnson, now deceased, in connection with the transaction regarding the inception or execution of said joint tenancy deed covering the above described property.”
In the case of Doyle v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863, this court discusses the advantages of the trial court in considering the evidence as compared with the cold record from which we must arrive at our findings. In that case the court said:
“The case is here for a trial de novo under section 7846, C.L.1913, as amended (now Section 28-2732, ND RC 1943). This court must review the record here presented and find the facts for itself. On a trial de novo the findings of the trial court are not clothed with the same presumptions in their favor as in other cases. But, on the other hand, in such a case as this, we must take into consideration the fact that we have here but a cold and lifeless record. We are called upon to determine the mental capacity, the state of mind, the knowledge and intent of Ellen Doyle at the time she executed and delivered the deed. We have not the advantage of seeing her, of noting her demeanor, of hearing her voice; of the innumerable intangible indicia that are so valuable to a trial judge in determining questions of this character. The trial court had the advantage of all of these things, and, breathing the air of the trial, he was in an immeasurably better position to find the real facts in the case. Therefore, notwithstanding that the case is here for trial de novo, we must give some appreciable weight to the determination of the trial court.” See also Merchants’ National Bank of Willow City v. Armstrong, 54 N.D. 35, 208 N.W. 847; Gunsch v. Gunsch, N.D., 67 N.W.2d 311.
We will now proceed to review the evidence to ascertain whether the deed is voidable because of incompetency of the grantor or undue influence to which he may have been subjected.
Ole Johnson, at the time of this death, was over 90 years old. He died June 24, 1954, two years and nearly ten months after the execution of the deed in question in this action. He was the father of twelve children, eleven of whom were originally made plaintiffs in this action. However, it appears that Delia Mortenson claims that she was made a party plaintiff without her consent. The attorneys for the plaintiffs moved, during the course of the trial, to withdraw her name as plaintiff in the action.
Ole Johnson was an early pioneer of Bottineau County. He was aggressive, and a man of positive character. He was public spirited and interested in public affairs. He had some fifty years previous to his death helped organize Starbuck Township in Bottineau County, North Dakota, and was a member of its township board until 1950. During his active years, he was considered the “kingpin in the community.” His son Victor, the defendant in this action, was the youngest of the 12 children. He had always lived on the home farm with his father and was living with him at the time of Ole Johnson’s death. Ole Johnson lost his wife in 1941. He and his son Victor continued to reside on the home farm and to operate it. Occasionally some of his daughters would go out to the farm to assist him and Victor with some of the household work. All of the children had stayed at home to help on the farm until they were grown up and mature men and women. They cooperated with their parents and helped Ole Johnson with the farm work without receiving any [216]*216wages. Their father gave them spending money. When the children left home to establish themselves or were married, the evidence shows that Ole Johnson helped them in varying degrees.
Ole Johnson suffered a stroke on January 6, 1948. This resulted from hypertension and high blood pressure, arteriosclerosis. He was not hospitalized at the time of this stroke. On April 23, 1949, he suffered a second stroke, and at that time was hospitalized until May 26, 1949. On December 9, 1949, he was again hospitalized for treatment of sores about the neck and ears. He was discharged December 17, 1949. He was again hospitalized on Febru» ary 25, 1950, for eczema and lesions on his stomach and was discharged March 6, 1950.
The two strokes which Ole Johnson suffered in 1948 and 1949, constitute the primary basis for the contention of the appellants that thereafter he was incompetent to transact any business; that he had no mental capacity to do so; that in fact he did not transact any business, all business transactions in connection with the farming operations of Ole Johnson being carried on by Victor Johnson. None of the children made any claim as to the incompetency of Ole Johnson until this action was commenced. No effort was made by any one of them to appoint a guardian over his person or estate.
Dr. Melvey of Bottineau acted as the personal physician of Ole Johnson from about 1942 to and including April 20, 1949. We have no direct medical testimony as to the effect of the second stroke in April 1949 upon the physical and mental condition of Ole Johnson. After the first stroke, Dr. Melvey testified that Ole Johnson for a short time had double vision. With glasses, however, he could see. He also testified that the cause of Ole Johnson’s death was hardening of the arteries or arteriosclerosis. He was asked:
“From your attendance on Ole Johnson and your observations of his actions is it your opinion, Doctor, he was deficient mentally in any respect? A. My opinion is that he was adequate mentally except for periods when his blood pressure would rise and he would have very severe headaches.”
These severe headaches came at about six month intervals and would last about 48 hours. During the headaches his blood pressure would rise. The Doctor was also asked:
“And does this condition (hardening of the arteries or arteriosclerosis) necessarily have any effect on the mental capacity of the party? A. Not necessarily.”
He also testified that he did not believe that the hardening of the arteries affected Ole Johnson’s mental capacity. It is clear from the testimony of Dr. Melvey that it was his belief that the affliction of Ole Johnson and the first stroke did not affect his mental capacity.
A Dr. Robert Johnson was called as an expert witness. While the trial court indicated that his testimony was not of much assistance in its determination of the facts in this case, yet it is worthy of note that Dr. Johnson testifying on the basis of hypothetical questions, which recited the medical history of the first and second stroke of Ole Johnson, stated practically the same conclusions as had been reached by Dr. Melvey. On cross-examination he testified:
“And the mere fact the person had strokes or even say two strokes would not necessarily render him mentally incompetent would it? A. No, it would not.
“Q. Nor render him incapable of handling his affairs, that right? A. No, it would not, it would depend on severity of stroke.”
While we have no direct medical testimony on the severity of the 1949 stroke which Ole Johnson suffered, it is apparent [217]*217that at least to a considerable degree, he recovered. He was in the hospital a little more than one month. Then he stayed with his son Clifford for a while and also with his daughter Mrs. Mortenson. But he seemed anxious to get back to the farm. The evidence shows that after the 1949 stroke he was able to get about, that he took part in many minor activities. Although he was no doubt weaker and less vigorous physically after the 1949 stroke, he seemed to enjoy company and was happy when people came to visit. He could not and did not converse freely as his hearing was progressively becoming worse. Accordingly it was also harder for people to converse with him. He went to town frequently with Victor and would go buy himself a cup of coffee. He did chores around the house such as washing the dishes, sweeping the floors, making coffee and otherwise exhibited about a normal amount of physical energy and activity common to people of his age. As far as the evidence goes, the greatest change in Ole Johnson took place the last two years that he lived.
Victor Johnson admitted that after 1949 his father took no active part in the management and operation of the farm or the business connected therewith. Victor looked after selling the grain, obtaining loans thereon, making out the income tax returns, buying machinery and the necessities for the house, and generally looked after all other matters that needed attention. Victor, although admitting that his father was getting harder of hearing as he grew older and that it was difficult to converse with him, stated that his father told him to sell the grain and that they talked over other matters of business.
It is not clear when a joint bank account was established by Ole and Victor Johnson. It may have been prior to the execution of the joint tenancy deed on September 4, 1951. But after that time or prior thereto, the farm was operated and the proceeds therefrom placed in a joint banking account. If the joint bank account was established prior to the date of the deed, it is some evidence of the confidence that Ole Johnson had in his son Victor and is an indication that father and son were closely associated and that, at least as to the joint bank account, they considered that the proceeds of the farm belonged to both.
It is strenuously urged that the discontinuance of all business activities by Ole Johnson after the 1949 stroke is evidence of his complete incompetence and incapacity. He did not run for reelection to the township board in 1950. Some of his neighbors, who were also members of the township board, testified that the last couple years that Ole served on the board, he was not as alert as he had previously been; that he slept a good deal at the meetings, and generally did not show the interest in township affairs that he had exhibited in the days of his physical vigor.
Ole Johnson quit driving his car to town in 1947 or 1948. He ceased operating it around the farm in 1950. It is urged that by this, he himself indicated that he was no longer competent. While these things may indicate that Ole Johnson himself recognized that to some extent he was losing some physical vigor, they also indicate prudence on his part and the fact that he had forethought, comprehension and realization that he should not engage in hazardous tasks. The management of the farm by his son Victor may be attributable to the fact that Ole Johnson knew that his son was not only capable of managing it, but that he had confidence in him to do so, and realized that with his declining vigor and difficulties of hearing it was best to allow Victor to manage and operate the farm. His trust and confidence in Victor did not make it necessary for him to attempt to exert himself in that direction in his last declining years.
Victor at the time of the trial was a man 41 years of age. He had spent all his lifetime on the farm. He had lived with his father about 13 years from the date of the [218]*218death of his mother. He was undoubtedly in closer contact with his father than any of the other children. While Franklin and Melvin, Ole’s sons, stayed on the farm at different times and helped with the work, the evidence shows that Victor was the only one of the sons that lived with Ole continuously and assisted him until his death. Franklin had stayed at home until 1935, and worked with his father off and on until 1953.
•If the evidence given by Victor Johnson, W. H. Adams, and Delia Mortenson is credible, and we believe it is, their testimony indicates that Ole Johnson had formed an intent to convey his property to his son Victor years before he carried that intent into execution. Victor testified that his father had told him when he was a young man about 17 years of age, that he would leave him his property if he stayed with him on the farm. All throug'h the years he never received any set wages, but was given spending money. Delia Mortenson gave testimony that corroborates Victor’s showing the intent of the father. It must be remembered that she was testifying against her own best interests. She was asked if she realized that and she answered affirmatively. She related an incident involving the purchase of an airplane by Victor in 1947. Ole Johnson, her father, apparently was apprehensive about this purchase and talked the matter over with Mrs. Mortenson. She indicated to her father that it was perhaps not any more dangerous to operate an airplane than a car. In the conversation concerning the airplane purchase, after the father had determined to allow Victor to buy it, he said: “What was his is mine, what is mine was his.”
On September 4, 1951, while Victor Johnson and his father were on their way to Bottineau, according to Victor, the father suggested that he wanted to consult a lawyer and have a deed drawn. He told Victor what he wanted, and asked him to take him to attorney W. H. Adams. Mr. Adams had known Ole Johnson for many years, probably from 20 to 30 years. He had come to know him while campaigning in Starbuck Township. While Mr. Adams does not remember all the details involved in the drawing of the deed here in question, he does remember that Ole Johnson was the one that carried on the conversation with him concerning the transaction.. He remembered that because he happened' to know that Ole Johnson was “The King, of the Tribe” and the children did not tell! him what to do. While that memory of Ole Johnson may relate to an acquaintanceship of years gone by, it is noted that Mr* Adams could not see or detect in the behavior of Ole Johnson any great difference from Ole’s behavior as he remembered him in the past. Ole Johnson explained to him that he wanted a deed drawn in such a way that his son Victor would acquire the property after his death, but that he (Ole) wanted to retain some control over it at the same time. On the basis of this understanding of what Ole Johnson wanted, Mr. Adams recommended the execution of a joint tenancy deed with right of survivorship.
Both Ole Johnson and Mr. Adams were hard of hearing at the time the deed was drawn. However, Mr. Adams explains that he had no particular trouble ascertaining what Mr. Johnson wanted. It is true that he did not remember where he got the description for the deed. Victor, however, states that he went to the courthouse and got it. The entire transaction took from 15 minutes to a half hour. The deed, after it was executed, was immediately taken to the courthouse and recorded September 6, 1951.
Mr. Adams testified that he was positive that the conversation between them was carried on entirely by Ole Johnson. He was asked:
“He (Ole) appeared to exercise his own judgment in regard to the drawing of this deed? A. So far as I can tell. * * *
[219]*219“Q. Did he appear to understand what he was doing when he executed the deed and what the results would be? A. So far as I could tell.”
From this testimony it is apparent that as far as Mr. Adams was concerned it appeared to him that Ole Johnson was •exercising his own judgment and that he understood the situation. Adams did not ■detect that Ole Johnson had any mental impairment or weakness. If he had it is quite certain that Mr. Adams would not have allowed him to execute the deed. If this testimony is to be believed, and it was, by the 'trial court, it is apparent that Mr. Adams was more than just a mere scrivener. He •advised Mr. Johnson as to the nature of the deed that he should execute in order to accomplish the results that he had in mind. Ole Johnson had successfully communicated his intent to Mr. Adams. If this comprehension of the situation was that of Ole Johnson and was not the result of any inducement, coercion, fraud, or attempt at overpersuasion, then it is clear that Ole Johnson was competent to execute the deed at the time he did so. While it is readily admitted that Ole Johnson was of advanced age and had been seriously ill in 1949, and was in somewhat impaired health; that for some time prior to the execution of the deed had not actively engaged in business affairs, these things are not conclusive as to his incompetency at the time of the execution of the deed. That is to be determined as of that time. Lee v. Lee, 70 N.D. 79, 292 N.W. 124; Meyer v. Russell, 55 N.D. 546, 214 N.W. 857.
In the case of Lee v. Lee, supra, 70 N.D. at page 84, 292 N.W. at page 126, this court said:
“The test of capacity is laid down by this court several times. In Nelson v. Thompson, 16 N.D. 295, 301, 112 N.W. 1058, 1060, this early rule, deduced from Jackson [ex dem. Cadwell] v. King, 4 Cow., N.Y., 207, 15 Am.Dec. 354, 355, was adopted: Upon the question of incapacity to render a deed invalid, the court must be satisfied that the grantor was not in a situation to transact that particular business rationally * * * not, on the one hand, that he should be capable of doing all kinds of business with judgment and discretion, nor, on the other hand that he should be wholly deprived of reason, so as to be incapable of doing the most familiar and trifling work. That, if the mind and memory were in such a situation at the time of executing the deed as to render him wholly incompetent to judge of his rights and interests in relation to that transaction, the deed would be void.
“In Meyer v. Russell, 55 N.D. 546, 214 N.W. 857, we say: ‘Impairment of faculties by disease or old age will not invalidate a deed, provided, the grantor fully comprehended its meaning and effect, and was able to exercise his will in executing it.’
“Again: ‘Before the court will set aside a conveyance on the ground of mental incompetency of the grantor it is necessary to show that the grantor, at the time of the execution of the instrument, was so weak mentally as not to be able to comprehend and understand the nature and effect of the transaction involved.’ Nordby v. Sagen, 64 N.D. 376, 252 N.W. 383.
“Old age alone does not affect competence, even though the mind may be weak and impaired compared with what it has been, and even though the capacity to transact general business may be lacking. This is the rule set forth in 16 Am.Juris. 486 [Deeds, Section 85], and it is supported by the citation given therein—Delaplain v. Grubb, 44 W.Va. 612, 30 S.E. 201, 67 Am.St.Rep. 788. On this point see Doyle v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863.”
It is urged that Ole Johnson did not know the amount of land that he owned. There is [220]*220no evidence to sustain that contention. The evidence shows that he wanted to leave all his land to Victor if he survived him.
Several of the children of Ole Johnson, deceased, except Delia Mortenson, gave testimony as plaintiffs, the cumulative effect of which was to attempt to show that Ole Johnson, their father, was incompetent to transact any business at the time he executed the deed on September 4, 1951. Their testimony is more or less general and along the same lines. Its general trend is that Ole Johnson was getting progressively harder of hearing beginning sometime in 1945; that particularly after the 1949 stroke there was a great change in him; that he was tired, slept a good deal of the time, took little if any interest in current affairs, although in the days' of his vigor he had been interested in political, religious and all kinds of civic matters; that he was very forgetful; that at times he did not recognize them; that he had trouble remembering their names and would sometimes refer to them by the name of some other son or daughter; that generally there was a great decline in his mentality. They testified that in their opinion he was not capable of transacting any business or competent to do so.
Sigurd Larson, Justin Evenson and John Waddle, neighbors of Ole Johnson, testified for the plaintiffs. Their testimony generally goes to show the difference in the attitude and behavior of Ole Johnson prior to and after the 1949 stroke. Their testimony shows that generally he was alert, vigorous, aggressive and vitally interested in township affairs until his last term, and particularly the last couple of years he served. They indicated that he was, during that time, rather disinterested, would fall asleep at the meetings, was generally satisfied with anything that the other members of the township board would do, and participated only slightly in the decisions that were to be made. In this connection it is well to remember that he was getting harder of hearing, which of necessity would handicap his participation. None of these witnesses, however, would express a definite conclusion that Ole Johnson was wholly incompetent, except one, who was willing to express such opinion.
Sigurd Larson, however, did testify to an incident that indicates that despite Ole’s years and hearing difficulties, he retained his power of comprehension. Larson was unable to specify the time more closely than 1951 or 1952. He was soliciting funds for the Salvation Army drive and stopped at Ole Johnson’s farm. It was almost impossible for Larson to carry on a conversation with Ole, but he had a list with him. He showed the list to Ole Johnson, and Ole knew what he wanted. He knew that he wanted money.
From a careful consideration of the entire record as to the mental competency of Ole Johnson, it appears that while it may be conceded that he was not capable of doing all kinds of business due to his declining years, lack of physical vigor, and his hearing difficulties, we are satisfied that he was of such a mind and memory at the time of the execution of the deed, that he understood and comprehended the meaning and effect thereof, and was able to, and did exercise his will in executing the deed.
There remains for us to review the evidence to ascertain whether the joint tenancy deed was executed by Ole Johnson because of undue influence exerted upon him by his son Victor.
There is no direct evidence in the record to indicate that Victor Johnson exerted undue influence on his father resulting in the execution of the deed dated September 4, 1951. There are only circumstances in the evidence from which inferences might be drawn which would tend to show that perhaps Ole Johnson was under the influence of his son Victor. But these circumstances which are said to warrant such inferences are also susceptible of other inferences pointing in the opposite direction.
In the early case of Fjone v. Fjone, 16 N.D. 100, 103, 112 N.W. 70, 71, [221]*221our court quoted with approval the following :
“ ‘Not every pleading, urging, or cajoling will amount to undue influence. The act is so nearly akin to duress that it differs only in the quality of the force. The importunity must amount to coercion, destroying the freedom of mind, so that the act is performed rather from motive of fear or helplessness. To avoid a will or deed it must be shown that the free agency of the party executing the instrument was destroyed. Mere appeals to the affections, or the impulse of gratitude, however importunate, are not sufficient.’ ”
Undue influence takes many forms. The term has not been, nor perhaps will it ever be, clearly defined by the courts. Its determination depends upon the circumstances of the particular case. It is in the nature of a species of constructive fraud. Generally, it may be said that in order to render a deed voidable on the ground of undue influence and thus subject to cancellation by a court of equity, it must appear that some improper influence was exercised over the grantor in the deed in such a way and to such an extent as to destroy his free agency or his voluntary action by substituting for his will the will of another. In other words, undue, influence which will void a deed is such influence as is obtained by excessive importunity, superiority of will or mind,' or by other means constraining the grantor to do what he would want to do but is unable to refuse. 16 Am.Jur., Section 38, Undue Influence, page 460.
The essential elements of undue influence required to be shown to authorize the cancellation of the deed are that the victim is rendered incapable of acting on his own motives, which implies a weak mentality. Parris v. Benedict, 28 Wash.2d 817, 184 P.2d 63, 67. Undue influence to justify setting aside a deed is such over-persuasion, coercion, force or deception as breaks the grantor’s will power, not merely influence of natural affection. Manahan v. Manahan, Mo., 52 S.W.2d 825, 827.
It has been held that whatever may be the particular form of undue influence asserted in all cases, three factors are involved :
1. A person who can be influenced.
2. The fact of improper influence exerted.
3. Submission to the overmastering effect of such unlawful conduct. 43 C.J.S., Influence, p. 380.
These elements of undue influence must all be present.
We will now examine the evidence with these necessary elements of undue influence in mind.
Franklin Johnson, one of the sons of Ole Johnson, stayed on the farm until the year 1935. He worked there off and on until the year 1953. In 1940 or 1941, Ole Johnson, his father, deeded a section of land to him and his brother, Victor Johnson. This section was known as the “Fin-stad Place”. The land was operated by Franklin, Victor and Ole as a part of the home farm. Franklin testified that while it seemed that Ole Johnson was the boss, sometimes he did not appear to be that way. Then he states that his father told him to go ahead and build a barn on the Finstad Place. A couple of days after that he came back and told him not to build it because Victor said “Nothing doing.” That was in the year 1946. Victor denied this and says he never heard about it. At any rate there is a direct conflict in the evidence as to whether this incident occurred.
There is no indication in the evidence that in 1946 Ole Johnson’s condition was impaired either physically or mentally; that he was not capable of directing the farming operations. Nor does the evidence show, even assuming that this incident took place, that Victor exerted any [222]*222undue influence upon Ole Johnson to cause his change of mind. Normal people change their mind and from all we know of this incident, if it took place, it may have been the result of normal reasoning operating upon Ole Johnson’s mind. Victor was a co-owner of the Finstad Place. He had a perfect right to object to the building of a barn thereon. That the father respected his objection does not indicate that he was •subject to his influence. It indicates rather that the father had both the intelligence and fairness to appreciate the rights and desires ■of a co-owner of the farm on which the barn was to be built. Just exactly what took place with reference to this we do not know. But it is familiar law that modest persuasion or arguments addressed to the -understanding or the appeal of affection cannot be deemed undue influence in a legal sense. Calveard v. Reynolds, 281 Ky. 518, 136 S.W.2d 795, 799. If we can properly judge the character and general behavior of 'Ole Johnson as gathered from the evidence, he was a man of positive ideas and disposition. In 1946 he was not a man who was likely to be the subject of undue influence. This incident, if it took place, occurred 8 years before Ole’s death. It is so remote as to time and so indirect as evidence of undue influence that it cannot be said that it is evidence of undue influence in procurement of the deed on September 4, 1951.
In 1947 Victor bought an airplane. His father furnished the funds. The evidence indicates that Ole Johnson was apprehensive about the use of airplanes. He was scared of them himself. Mrs. Delia Mor-•tenson talked to her father about this matter. He wanted her views upon it. She told him that as far as she was concerned an airplane would not be any worse than a •car. Then Ole Johnson told Victor to go ahead and buy an airplane “if he wanted to”. Then Mrs. Mortenson testified that he said with reference to this matter, '“What was his is mine, what is mine was his.” This testimony relates back to 1947. ■Ole Johnson at that time was a man about 83 years of age. There is no indication in the evidence anywhere that at that time of his life, although he was getting harder of hearing, that he did not possess considerable mental and physical vigor for a man of his age, or that he was not possessed of his mental faculties. He had at that time not been weakened by any serious sickness. He suffered the two strokes after that, one in 1948 and the other in 1949. The evidence with reference to Victor’s purchase of an airplane is not necessarily, as we view it, indicative of undue influence exerted by Victor upon his father. It is evidence that Ole Johnson considered that what he owned also belonged to Victor. What was his was Victor’s. It corroborates Victor’s statement that for years he had been telling him that he was going tO' leave him the property, if he stayed at home. This incident tends to establish the fact that Ole Johnson had long ago made up his mind that Victor’s services to him, his presence on the farm at all times, and the many dutiful things that he had done for the father, may have been the basis for his attitude.
An incident is related by Melvin Johnson, another son of Ole’s, with reference to the Culber Place. This also took place in 1946. The evidence is somewhat meager and sketchy as to what actually took place. Melvin Johnson had lived with Victor and Ole Johnson on the farm until 1946. He testifies that some difficulty arose between him, his father and Victor over some matters. He said that he had been promised the Culber Place. At that time he was 46 years of age. He said:
“ * * * kind of liked to know myself if I had anything or didn’t, so one morning I asked dad and Victor, was sitting there when eating breakfast and Mr. Brother got mad, going to throw me out, you don’t need to throw me out, still can walk out, that’s why I wasn’t there for four years.”
He further testified that his father did not say anything at the time. There is no fur[223]*223ther testimony on this matter. Whatever may have been the cause of the altercation between Melvin and Victor, there is no clear indication that this argument between the brothers resulted from undue influence exerted by Victor upon his father. In the first place the father did not take part in the conversation. He apparently sat silent, if he heard the conversation. It is also to be remembered that this incident took place in 1946, while Ole Johnson was still apparently in possession of his faculties and physical vigor. Melvin left home for 4 years, but came back in 1950 in spite of this difficulty and stayed on the farm until sometime in 1953. While Melvin Johnson stayed on the farm during that time, he was farming his own land which he had acquired sometime before. The matter was never mentioned again. The incident is too remote, vague and indefinite to constitute satisfactory evidence of undue influence.
Ole Johnson, apparently on his own accord, either in 1947 or 1948, quit driving his car to town. The testimony indicates that he drove it around the farm until 1950, when he quit driving it altogether. Roy Johnson, one of the sons, testified that during one of his visits while talking in the kitchen to his father, he was attempting to cheer his father up and urging him to take care of himself and forget about all of his business; that in time he would be driving his V-8 again. Then he relates that Victor turned around and said, “Don’t give him a bright idea.” This is urged as evidence of Victor’s dominance over his father. The testimony does not show the exact time of this conversation, but it must have been sometime in 1949, after the second stroke. Victor would naturally be concerned about his father’s driving a car after a siege of severe illness. At any rate Ole was at an age when even a healthy person should perhaps not drive a car. Victor’s concern was that his brother, Roy Johnson, not give his father any ideas of driving again, and is in harmony with the thought that he did not want his father to endanger himself by the use of his car. It indicates a natural solicitude for his father’s safety.
We have diligently searched the record and find no direct evidence of undue influence. Such inferences as may be drawn from the incidents heretofore set forth and the implications of the testimony of the sons and daughters of Ole Johnson creating an impression that he was so weak mentally as to be amenable to any suggestion, particularly from Victor, are also subject to-interpretations that indicate that Ole Johnson was exercising his own will and judgment. The evidence wholly fails to show any suggestions from Victor that the land be deeded to him. If the evidence of Victor, Mr. Adams, and Delia Mortenson, is worthy of credit, it appears that not only did Ole Johnson know what he was doing when he executed the deed which is the subject of this action, but he was carrying out an intent that had been formed many years prior to that time. There is evidence in the record that he had made casual remarks to some other of his children indicating that they would get something. These remarks are indefinite as to time- and content. There is property in the estate valued at $29,083.50.
There is no evidence showing that Ole-Johnson, after the 1949 stroke, talked foolishly or talked nonsense or that his behavior was irrational except when he was-seriously ill.
The inferences of undue influence that are said to exist are contradicted by evidence in the record. It is to be noted that Ole Johnson, according to the testimony of Mr. Adams, imparted to Adams his desires indicating that he wanted to deed the property to his son Victor and still at the same time have control over it. With that information Adams advised a joint tenancy deed. The execution of the joint tenancy deed did not constitute an outright or absolute gift of the property to-Victor. A joint tenancy deed with right of [224]*224survivorship during the lifetime of both tenants, places the ownership of the real property in each to a one-half interest in the land. In re Kaspari’s Estate, N.D., 71 N.W.2d 558.
It is here contended that the deed is the fruit of undue influence exerted by a son upon his father. The relationship between Ole Johnson and his son Victor had no doubt been close, continuous and confidential. It had existed from Victor’s early youth to the time of his father’s death. Victor had for some reason stayed with his father. He was the only one of the children who stayed with him at all times until his death. He helped to manage the farm. In fact, he took over the management thereof completely when his father became old, infirm and unable to look after the many details involved in the management and operation of a large farm such as Ole Johnson owned. It was stipulated that approximately 1784 acres were involved. The evidence shows the absolute confidence of the father in his son Victor. Conceding for the moment that the relationship was close, continuous and confidential, and when taken in connection with the facts claimed to exist, may raise an inference or presumption of undue influence, yet was it such as will void a deed, or so unlawful or fraudulent influence as to control the will of the grantor? We do not believe so, unless mere opportunity, and susceptibility to undue influence are sufficient. The cases indicate that mere opportunity to exert undue influence and the susceptibility of a party to influence are insufficient. There must exist facts which show submission to the overmastering effect of unlawful conduct. Such facts do not appear in the evidence before us.
Affection, confidence and gratitude of a parent to a child, which inspires a gift is a natural and lawful influence and will not render it voidable unless this influence has been so used as to confuse the judgment and control the will of the donor. Blochowitz v. Blochowitz, 122 Neb. 385, 394, 240 N.W. 586, 82 A.L.R. 949. See also Fjone v. Fjone, 16 N.D. 100, 103, 112 N.W. 70; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W. 2d 46, 57. In the last cited case the court said:
“A voluntary act influenced by the love, affection, and gratitude of a mother for a dutiful son cannot be said to be the result of an undue influence. Undue influence cannot be made out by mere suspicion or the mere showing of an opportunity to influence. ‘There must be somewhere proof of an undue influence itself. * * * To be effective, it ought to be sufficient to destroy the free agency of the deceased at the time of making the’ deed. ‘It must not be merely the influence of natural affection; for affection is a stream that presumably flows at all times and its waters are under no ban known to the law. There must be present and in active exercise overpersuasion, coercion or force, fraud or deception breaking the will power of the’ grantor. Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S.W. 46.”
The evidence in the case at bar is such that the execution of the deed by Ole Johnson is as consistent with influence born of love, affection and gratitude towards this son who had stayed with him at all times, as it is with undue influence procured by overpowering the will of Ole Johnson so that the deed that he executed was the result of Victor’s will and not that of his own.
It must be remembered that the ownership of property is absolute. When a single person has the absolute dominion over it he may use it or dispose of it according to his pleasure, subject only to general laws. Section 47-0202, NDRC 1943. This absolute ownership implies the right of arbitrary disposition of property of a capable and uninfluenced person. It is a corollary of absolute ownership. It is often true in connection with deeds or wills [225]*225that the disposition of property indicates disregard of some, preference for others, partialities and caprice of the party disposing of the property. But if the party owns the property and has the mental capacity to know what he is doing and is uninfluenced the law does not concern itself with these matters.
“The mere fact that a parent deeds property to a child does not of itself raise a presumption of undue influence. McLeod v. McLeod [145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41] ; Mallow v. Walker, 115 Iowa 238, 88 N.W. 452, 91 Am.St.Rep. 158. * * * There is no presumption of undue influence or fraud arising merely from the fact that some children are favored to the exclusion of others. Burton v. Burton, 82 Vt. 12, 17, 71 A. 812, 814, 17 Ann.Cas. 984. The rule is stated in 16 Am. Juris. 661 [Deeds, Section 393], ‘No presumption arises from such relationship (parent and child) although some children are thereby favored to the exclusion of others and although the beneficiary is the adviser of the parent and has the control and management of his affairs. This is true even though the parent is aged or aged and infirm.’ ” Lee v. Lee, 70 N.D. 79, 87, 88, 292 N.W. 124, 128.
But it is asserted that here a confidential relationship existed between Ole Johnson and his son Victor, and therefore, the burden is cast upon Victor to show that the conveyance was made freely and voluntarily and with full knowledge on the part of the grantor of its character and effect. Doyle v. Doyle, 52 N.D. 380, 202 N. W. 860; Lee v. Lee, supra. Conceding that there was a confidential relationship existing between Ole Johnson, the grantor, and his son Victor, one of the grantees, the evidence indicates that he has carried the necessary burden to show that the deed was freely and voluntarily made; that Ole Johnson knew what he was doing when he executed the- deed; and that no such fraud or undue influence exists to warrant its cancellation. In that connection it must be remembered that this was not an outright gift to Victor Johnson. During the lifetime of his father Victor only held an undivided one-half interest in the property.
The incidents related by the witnesses to show that there was not only an opportunity for the exercise of undue influence upon Ole Johnson, but that Victor did exercise undue influence upon him, relate to matters that arose before Ole’s serious illnesses when it appears that he was in good health and vigor for a man his age. The evidence shows that there was no attempt to secrete the deed. It was recorded on the 6th of September 1951. Neither Ole Johnson nor Victor said anything about it, but there does not appear to be any reason for publication of the grant except such as the recording thereof would give. The plaintiffs did not know, or claim they did not know, of its recording, asserting that Victor was secretive about the matter and after the father’s death did not want to divulge what disposition had been made of the property. Whatever prompted this reluctance on Victor’s part we are not prepared to say that the only inference therefrom is that Victor procured the execution of the deed by undue influence.
We have searched the evidence thoroughly and after giving the trial court’s findings the appreciable weight to which they are entitled, we believe that the decision of the trial court must be sustained. Not only did the trial court make specific findings upon the competency of Ole Johnson and upon the issue of undue influence, but he wrote a long analytical memorandum decision in which it clearly appears that the trial court considered carefully the credibility of the witnesses and the weight of their testimony.
Quoting from Wallace v. Harris, 32 Mich. 380, our court said in Fjone v. Fjone, 16 N.D. 100, 103, 104, 112 N.W. 70, 71:
“ ‘The line between due and undue influence, when drawn, must be with full [226]*226recognition of the liberties due every true owner to obey the voice of justice, the dictates of friendship, of gratitude, and of benevolence, as well as the claims of kindred, and, when not hindered by personal incapacity or particular regulations, to dispose of his own property according to his own free choice.’ ”
When the evidence in the case at bar is tested by the rules we have heretofore set forth, we conclude that it is insufficient to warrant a finding of undue influence practiced upon Ole Johnson by the defendant Victor Johnson to secure the execution and delivery of the deed in question.
The judgment of the trial court is affirmed.
BURKE and MORRIS, JJ., concur.