Pressley v. Kemp

16 S.C. 334, 1882 S.C. LEXIS 2

• Court: Supreme Court of South Carolina
• Decided: January 10, 1882
• Docket: CASE No. 1125
• Status: Published

Opinion

The opinion of the court was delivered ■ by

McGowan, A. J.

This was an action in the nature of a suit in equity, brought by the plaintiff, as executor of the last will and testament of Sarah Eliza Evans, deceased, late of Society Hill, Darlington county, to set aside and have canceled a deed alleged to have been made by the testatrix, in her life-time, to the defendant, Edgar T. Kemp, of Greenville county, on the ground that said deed is void and of no effect by reason of fraud and undue influence. ,

Miss Evans had made her will March 11th, 1874, with codicil January 10th, 1876, by which she disposed of her whole estate. After certain devises and bequests, she gave the rest and residue to be sold to the best advantage, and the proceeds paid over to the Kev. James Furman, of Greenville, South Carolina, to be used by him in aid of Foreign and Domestic Missions, &c. She owned a house and lot in Greenville, which she leased to Edgar T. Kemp. She boarded with him, and died there on December 9th, 1878. After her death, said Kemp produced a deed, which purported to have been executed by the testatrix on December 4th, five days before her death, by which was conveyed to him “the house and lot in Greenville, two notes made by Giles L. Glazener, and secured by a mortgage, and one undivided half of a tract of land at Florence, S. C., containing one hundred and thirty acres.”

The appellant, as her sole qualified executor, commenced the action in Darlington county, but to promote the convenience of witnesses, the venue was changed from Darlington to Greenville county. The case came on to be heard before Judge Wallace, and an issue was sent to a jury, consisting of thirty-six questions as to facts, about which it was supposed there would be conflicting testimony. It would unnecessarily encumber this judgment to set out these questions and answers'at length. The answers were almost without exception favorable to the respondent, and, taken together, in reference to subject-matter, make a connected finding substantially as follows: “Miss Evans was seventy years of age when she executed the deed to Kemp. At that time her domicile was Greenville. The deed was executed on Wednesday. She instructed her lawyer, Governor Perry, to prepare the paper, which was prepared in accordance with her instructions. She was not sick at the time; not helpless, but feeble, and had been so for twelve days before the execution of the paper. She was living with Kemp, but not under his control. There was a relation of confidence between Miss Evans and Kemp. She reposed great confidence in him, and he acted towards her in that confidence. He acted as her agent in one or two instances. He was present aiding in the execution of the deed. He acted for her in the preparation and execution of the deed, but in good faith. She was not in condition to acquiesce in whatever might be proposed by those haying influence with her. She knew what she was doing. The deed was not read over to her. She could not have heard it read nor understood it by the motion of human'lips, but she read the paper herself, and knew its legal effect. She had changed her mind as to ‘the charities’ without any misrepresentations or arts or statagems by Kemp, or any one in his interest. No advantage was taken of her age, helplessness or situation. Miss Evans had first cousins residing in Society Hill and elsewhere, who manifested little interest in her before and up to the time of her death. At the date of the paper, only two of the friends of her youth resided in Greenville, and Kemp did not communicate her intention to make this deed to either of them. Kemp did not fail in his duty to Miss Evans during the last three weeks of her life in any particular,” &c.

The testimony and these findings were considered by the judge, who sustained the deed and dismissed the complaint. The plaintiff appeals to this court. There seem to be no regular exceptions, but in the elaborate and learned argument of the appellant’s counsel, the following grounds for reversing the judgment are insisted on:

1. “Because the Circuit judge erred in sustaining the findings of the jury as contained in answers to questions 4, 5, 6, 7, 8, 9, 10, 14,' 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 33, 34, 35, 36 of issues of fact, and in answers to 29 and 30 in so far as it was found that defendant’s agency was confined to one or two instances, and the defendant acted in go’ocl faith in the preparation and execution of the deed in controversy.

2. “Because the Circuit, judge was in error in supposing that the plaintiff' below relied alone on constructive fraud, and in confining his decision to that point; whereas the plaintiff relied strongly on the evidence of positive fraud, and now insists that the Circuit judge erred in not setting aside the deed on that ground.

3. “Because the Circuit judge erred in holding that the relations which existed between S. E. Evans and E. T. Kemp, with the circumstances in the case, at the time of its alleged execution, were not sufficient to invalídale the deed in question.”

The first and second propositions complain of error of fact in the findings of the jury and in the judgment of the Circuit judge in relation to the charge of positive fraud. Notwithstanding Miss Evans had previously executed her will, giving the proceeds of the rest and residue of her estate to the purposes of religious charity, she had, as long as she lived, the undoubted right to change her mind and make a different disposition of those proceeds cither by deed or will, only provided it was her own voluntary act, not induced by imposition, fraud or undue influence. The only question is: was the deed her own voluntary act ? Upon this subject there was much proof. Foreseeing that there would be conflict of testimony, especially in reference to the capacity of Miss Evans at the time the deed purports to have hern signed, and as to her signature and the due execution of the paper, issues carefully framed so as to test the question in every possible phase and form were submitted to a jury, who, as before stated, found for the defendant in most of the questions submitted, and the Circuit judge concurred in these findings,' saying that “ he ivas satisfied with the findings of the jury upon the issues submitted, -and approved and adopted their verdict.”

Under these circumstances this court will generally accept as established the facts thus found. Inquiry must end somewhere. A.jury of the vicinage, acquainted with the witnesses who testify in their presence, is peculiarly fitted to weigh conflicting testimony and decide contested questions of fact. When the finding of such a body of twelve men is approved and, adopted by the Circuit judge, who, intelligent, disinterested and accustomed to consider the force of testimony, is also present and sees and hears the witnesses examined before him, it would seem that the verdict ought to be as near absolute truth as is attainable under imperfect human institutions. In this respect the case is analogous to that of Gadsden v. Whaley, 14 S. C. 217, in which it is said: “ Being an action for equitable relief this court may reconsider all the evidence, but the safe principle upon which it generally acts is not to overrule the conclusions of the Circuit judge upon doubtful questions of fact, though the court might not have reached the same conclusion he did. The. rule is more strictly adhered to when there is concurrence between a Circuit judge and a referee. As to its probable correctness the verdict of a jury is as strong as the report of a referee. In the last case upon the subject, Adger A Co. v. Pringle, 11 S. C. 548, it is said: ‘ The question of fact having been decided by the referee, and his decision having been confirmed by the Circuit judge, their decision must be regarded by us as conclusive unless it is without any testimony to sustain it, or is manifestly against the weight of the evidence/ ” We have looked carefully through the testimony in this case and are unable to say that the judgment is against the weight of the evidence upon the charge of actual fraud.

The third proposition is that the Circuit judge erred in not holding the deed void on the ground of constructive fraud growing out of the confidential relation of the parties.

Undue influence is a term not very clearly defined. It is easier to say what it is not, than what it is. Perhaps it is safer not to hazard a precise definition, as the circumstances in the affairs of life in which the principle may be invoked are infinitely various and diversified. The well established rule upon the subject, certainly as applicable to the execution of wills, is “ that it must amount to force and coercion — destroying free agency. It must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion — by importunity which could not be resisted — that it Avas done merely for the sake of peace, so that the motire Avas tantamount to force and fear.” 2 Wms. Ex., ch. I., § 2; Parfitt v. Lawless, 4 Moak Eng. R. 694; Means v. Means, 5 Strobh. 192. In our own case, last cited, it is said that “it is not influenee merely, but undue influence that is always alleged— something excessive and unlawful. It is not the influence of friendship or affection that can be complained of, nor the influence of argument or entreaty, nor the impression made by kindness or prudence, nor even the effect Avrought by servile compliance or mean endurance of wrong. It must be something that destroys free agency. Motives of almost every conceivable kind may be offered, and if the mind of the agent — free to adopt or reject the motives — yields its assent, the act is the act of the agent.” This is beyond all doubt our law upon an issue of devisavit vel non, and, according to*the principles announced in these authorities, the facts, as found by the jury in this case, would fall far short of setting aside the paper in controversy for undue influence, if it Avere a Avill. We look in vain for evidence to show anything like coercion of the will of the donor.

Lord Cranworth, in Boyse v. Rossborough, 6 H. L. C. 49, said: “One point, hoAvever, is beyond dispute, and that is, that where once it has been proved that a will has been executed Avith due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it Avas executed under undue influence is on the party Avho alleges it.” If, therefore, Miss Evans had taken the advice of her attorney and expressed her intention in favor of the defendant by a codicil to her will instead of a deed, there could be no doubt of the legality and validity of the donation.

Does it alter the case that the form in which she expressed her change of intention was by deed and not by will? It has been urged with zeal and learning that, as this was a deed inter vivos, and the relations 'between the parties were of a confidential character, the doctrine applicable to wills does not apply; but that this is one of those cases in which the Court of Equity will declare the deed void, or at least presume undue influence and set it aside, unless the donee ptoves affirmatively that it was not procured by undue influence. This doctrine certainly tends to reverse the rule of evidence that no one shall be required to prove a negative; but it seems that the English Chancery, in a particular class of cases, does make a distinction in this respect between a will and a deed.

The leading case on the subject is that of Hugucnin v. Baseley, 14 Ves. 300, but the doctrine is stated more fully by Lord Penzance in the case of Bar fit v. Lawless, 4 Moak Eng. R. 692, as follows: “ In equity, persons standing’ in certain relations to one another, such as parent and child, man and wife, doctor and patient, attorney and client, confessor and penitent, and guardian and ward, arc subject to certain presumptions when transactions between them are brought in question. And if a gift or contract, made in favor of him who holds the position of influence, is impeached by him who is subject to that influence, the courts of equity cast upon the former the burden of proving that the transaction was fairly conducted as if between strangers; that the weaker was not unduly impressed by the natural influence of the stronger, &c. * * * In the first place, in gifts or contracts inter vivos, there is a transaction in which the person benefited at least takes part, whether he unduly urges his influence or not; and in calling upon him to explain the part he took and the circumstances that brought about the gift, the court is plainly requiring of him an explanation within his knowledge. But in the case of a legacy, under a will, the legatee may have, and, in point of fact, generally has, no part in or even knowledge of the act. A more material distinction is this : The influence which is undue in the cases of gifts inter vivos is very different from that which is required to set aside a will. In the case of gifts inter vivos it is considered by the courts of equity that the natural influence which such 'relations as those in question involve, exerted by those who possess it, to obtain a benefit for themselves, is an undue influence. Gifts brought about by it are, therefore, set aside, unless the party benefited by it can show affirmatively that the other party to the transaction was placed in such a position as would enable him to form an absolutely free and unlettered judgment.’ Archer v. Hudson, 7 Beav. 551.”. "We think the rule, as here announced, is only applicable where there arc well-defined confidential relations, such as those indicated in the cases cited.

So far as this doctrine as to deeds is supposed to spring from relations of confidence between the donor and donee, assuredly those same relations may also exist between testator and devisee. In the case before us, for example, there was involved no general disposition of the whole estate, as is usual in wills, but the gift was to one person, single and simple, and the donor died only a few days after the execution of the paper. Under these circumstances, is there, any principle which' requires that the rule of evidence should be different from what it would have been if Miss Evans had acted on the, suggestion to accomplish her purpose by means of a codicil to lier will instead of a deed ? It is difficult to say certainly what relations are and what are not within the rule, but we take it that it does not include those merely of friendship and confidence. In the ease of Hunter v. Atkins, 3 Myl. & K. 113, a gift was made by a person upwards of ninety years of age, who had a wife and adopted daughter, to a confidential agent, who had for many years been in the habit of friendship with the donor — without the intervention of a disinterested third person — the solicitor who drew the deed being the solicitor of the person who took the benefit under it. The gift was declared void at the. rolls, but, under all the circumstances, sustained upon appeal. Lord Brougham stated the rule in the following terms:

“The rule, I think, is, that where the known and defined relations of attorney and client, guardian and ward, trustee and cestui que trust exists, the conduct of the party benefited must be such as to sever the connection and to place him in the same circumstances in which a mere stranger would have stood, giving-no advantage, save only whatever kindness or favor may have arisen, out of the connection; and that where the only relation between the parties is that of friendly habits, or habitual reliance, on advice and assistance, accompanied with partial employment in doing some sort of business, care must be taken that no undue advantage shall be made of the influence thus acquired. The limits of natural and often unavoidable kindness, with its effects, and of undue influence exercised, or unfair advantage taken, cannot be more rigorously defined.”

The case of Huguenin v. Baseley, supra, is cited approvingly by the Chancellor who delivered the judgment of the court in our own case of Paris v. Cobb, 5 Rich. Eq. 457, but in the latter case the relation between the parties was that of grandfather and grandchild and agent. It is stated in a note to the case of Morgan v. Minett, 23 Moak Eng. R. 252, that “the principal case holds the rule relative to gifts to persons standing-in confidential relations to the donor more strictly than it is held by the courts of this country. A gift to such person, when shown by direct or circumstantial evidence to have been understandingly made,, by a person competent to make it, without fraud or imposition by the donee, is held valid.” 1 Story Eq. §§ 311, 314.

We do not see that the donor and donee in this case held to each other such relations of confidence as are referred to in the •cases. The parties were in no way related — -they were not trustee and cestui que trust. Kemp and his mother lived together. Miss Evans lodged with them, and continued to do so for about two years, when she died in their house. While Miss Evans lived with them a mutual friendship had grown up between them. A few days before her death Miss Evans executed the deed in controversy. The jury found that she knew what she was doing. She read the paper herself, and knew its legal effect. She had changed her mind as to the charities without any misrepresentations, or arts, or stratagems of Kemp or any one in his interest. No advantage was taken of her age, helplessness or situation. Kemp did not fail in his duty to Miss Evans during the last three weeks of her life in any particular.

In this state of facts wo know of no rule of law or principle of equity which would authorize a court to declare the deed of Miss Evans invalid and thus defeat her intention in reference toller own property. In the language of Lord Brougham, in the case of Hunter v. Atkins, supra: “ If, on such grounds, a deed so prepared and so executed is to be set aside, few, assuredly, of the acts of men, dealing with their own affairs, are safe; and the law which enables all who are of sound mind to dispose of their property, no longer exists but in name.”

The judgment of this court is that the judgment of the Circuit-Court be affirmed.

Simpson, C. J., and McIver, A. J., concurred.