Uhlich v. Muhlke

61 Ill. 499

Opinions

Mr. Chief Justice Breese

delivered the opinion of the Court:

Footnotes

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*

This was a bill in chancery in the Superior Court of Chicago, exhibited by Henry Uhlich against John H. Muhlke, Ernst Uhlich, August Uhlich and Walter Newberry, to set aside certain deeds described in the bill, on the allegation they were fraudulently obtained, and were null and void, for the reasons, first, that the grantor was of weak and unsound mind at the time of their execution and delivery; second, that Muhlke obtained the first deed to himself, in abuse of the trust atnl confidence reposed in him by the grantor, by fraud and undue influence, without paying a consideration, or an inadequate consideration; third, that all the other deeds were obtained by fraud and undue influence while the grantor was of weak and unsound mind; fourth, that all the deeds were obtained through fraud and conspiracy, having for its object, on the part of Muhlke and Ernst Uhlich, by undue influence, not onl)r to obtain a large share of the property of Carl Uhlich, to the exclusion of complainant and August Uhlich, but also fraudulently to obtain from comjdainant conveyances confirmatory of such frauds, and further assurance of the title to the lands thus fraudulently obtained by them, and to deprive complainant of the property which was given to him, and to obtain, in addition, covenants of warranty from' him of their title; fifth, that the deed from complainant and wife was not only obtained from them by fraud, but is without consideration, and executed and delivered by them under a mistake of law as well as of fact, and under threats and compulsion.

The bill prays, not only that these deeds be set aside, but, also, for a partition of the estate conveyed by them; for an account of rents and profits; for an injunction; for the appointment of a receiver to collect the rents during the pendency of the suit; for an order to compel Muhlke and Ernst Uhlich to produce in court, and deposit with the clerk, all papers, documents, etc., of Carl Uhlich, deceased, and all title deeds, bonds, mortgages, etc., relating to the lands described in the bill, and for general relief.

Newberry was a formal party only, and answered accordingly.

A separate answer was put in by Muhlke, and a joint and separate answer by Ernst and August, to the bill.

In Muhlke’s answer, it was alleged that, on the 6th of July, 1861, Carl Uhlich made a will devising therein certain property to the complainant, and to his other sons, Ernst and August, and to his wife, all the rest of his real and personal property, making Mrs. Uhlich and Muhlke executors, and revoking all former wills.

It is also alleged in the answer of Muhlke, that, after the deatli of Mrs. Uhlich, which occurred in June, 1867, Carl, on the 10th of July of that year, executed another will, giving to his three children certain interests in land, and to Muhlke a certain interest, and to John G. Harmon and others as trustees, a tract of land on which to erect an orphan asylum— Muhlke to be sole executor, not required to give bond, and revoking all former wills. Neither of these wills was ever offered for probate.

The answers of the defendants deny all the allegations of the bill charging fraud, undue influence, or any improper conduct, in procuring the deeds to be made, or that they did procure them to be made, and deny all matters charged in the bill going to impeach the honesty and fairness of the transactions on which the charges are based, giving a,full history of' Carl, his wife, and of the various parties to the proceeding, and denying unsoundness of mind of Carl Uhlich.

To the answers, replications were filed, but, by leave of the court, they were withdrawn, in order to enable the complainant to amend his bill to meet the allegations of the answers in respect to these several wills of Carl Uhlich.

Complainant charges, that the first will was made whilst Carl was of weak, imbecile, unsound mind and memory, and was obtained and effected, by Ernst, August and Muhlke, by fraud and undue influence; and that the last supposed will was effected and obtained by fraud and undue influence exercised by Muhlke, Ernst and August, upon the weak and unsound mind of Carl, and in pursuance of and as part of a scheme and conspiracy to procure an unjust and inequitable division, among themselves, of the estate of Carl, and that both wills are void and inoperative.

The replications were again filed, and the cause came on for hearing on the bill, answers, depositions, exhibits and oral proofs.

The court decreed substantially as prayed, except as to the deed executed by Carl Uhlich and wife to Muhlke, dated March 20, 1865, which was adjudged to be valid. The court also adjudged the will of July 6, 1861, to be a valid will.

From this decree complainant, on his part, and Muhlke and Ernst Uhlich, on their part, appeal -to this court, and assign •various errors.

The testimony and pleadings in the cause make a large volume. The abstract of the record occupies two hundred and twenty-one pages, and the record itself twelve hundred and fifty printed pages, large folio. This mass of matter has been fully examined and considered, and also the elaborate opinion of the learned judge who tried the cause, and we will proceed to state the impressions they have made upon our minds, and what conclusions they have induced.

We shall consider the appeals together, they being so intimately connected.

It is not to be expected that we shall state in detail the evidence, but only the impressions it has made, the conclusions to which it has led, and the law applicable thereto.

We will first consider the deed of March 20, 1865, from Carl Uhlich and wife to Muhlke, as that is first attacked by complainant.

It is insisted this deed is null and void, having been fraudulently obtained, Carl having been, at the time of its execution, of weak and unsound mind; and also, that it Avas obtained by Muhlke in abuse of the trust and confidence reposed in him, by fraud and undue influence, without paying a consideration, or an inadequate consideration.

These propositions will be considered together. The first has no support from the eAÚdence. There is not a particle of proof, as we understand it, that, at the time the deed was made, the grantor Avas of Avealc and unsound mind. On the contrary, it is sliOAvn he Avas a man of more than ordinary intellect, fully understanding his position, and the extent and A-alue of his property and its condition, and fully capable of appreciating the services Muhlke had rendered him in the management of it.

The second proposition is the important one. The grantee did sustain, at the time the deed Avas made, and had, for more than four years preA-ious thereto, sustained the relation of confidential agent and adviser of the grantor.

What, then, is incumbent on the grantee to sIioav to validate a deed executed and delivered under such circumstances? Such a transaction comes under the head of •“ constructive frauds,” and is so treated by laAV Avriters. The principle on Avhich courts of equity act, in regard to such cases, is a motive of public policy, and designed, in some degree, as a protection to the parties against the effects of overweening confidence and self-delusion, and the infirmities of hasty and precipitate judgment, 1 StoiWs Eq. Jur. sec. 307; and in .sec. 308, it is further said, “if a confidence is reposed, and that confidence is abused, courts of equity Avill grant relief.”

A few considerations must, we think, satisfy the most incredulous mind, that Muhlke, in accepting this deed, abused no confidence which TJhlich, the grantor, had reposed in him.

Complainant, in his bill, does not allege any act done by Muhlke, whilst this relation existed, tending to show any advantage taken by him of that relation, but the broad ground is assumed that the relation itself forbids such a transaction, and advantages taken will be presumed.

The great body of the evidence shows that TJhlich, in 1860, entertained apprehensions, his estate having become very large and valuable, of his own inability to manage it, then considerably embarrassed, and likely to become more so, by inattention, or by the want of the requisite vigilance and skill. He had three grown sons, but neither of them capable of rendering any assistance. He was then near eighty years of age, with a wife more than sixty, to whom he was much attached, possessed of good sense and devoted to him and to his interests, and on whose kindness and judgment he relied. The times were portentous of great and disturbing events, and their angry threatenings were calculated to, and did, inspire alarm in the whole business community. TJhlich had been involved in the storm which passed "over him in 1857, and had emerged from it in debt, and in arrears in interest due on borrowed money. His property, though large, was, for the most part, unproductive, yielding him a revenue barely sufficient to pay the annual taxes and occasional assessments upon it. Every sign was unpropitious, and he was in a state of great dismay and distress. In this emergency he called upon Mr. Hartman, the pastor of a religious congregation of which he .was a member. He was in embarrassments which he deemed inextricable. In this dilemma, his pastor advised him to procure the s'ervices of some competent man of business, to whom he should give the management of his property, and recommended the defendant Muhlke, a member of their church, as a proper person.

Mr-. Hartman’s account of this is so plain and simple and natural, that we quote from his testimony. He says: Father Uhlich came to him in his study; it was a cold day; he had in his pocket a bundle of papers, seeming to be deeds, of policies of insurance, or legal documents, and said, “I am in great trouble; I am sold and betrayed by my own flesh and blood, and by my legal advisers,” meaning his lawyers; said lie had brought a great deal of money to this country, and had lost, since that time, many thousands; said he had lost five thous- and dollars by one bank, and that he had so many expenses and taxes to pay, and that all the land he had did not yield him much; that he had many debts; that he did not understand the laws and language of this country; that he had no competent friend in this country to whom he might confide his affairs, and that he feared he might become a poor man if things continued in the manner they were. He then asked Mr. Hartman, as his pastor, or spiritual adviser, to indicate to him a competent and experienced man, or an attorney, or a friend to whom he might entrust the management of his affairs and property, and if he did not know of any such person, then the leading men of the congregation should see to him in his embarrassment. Mr. Hartman told him he could not do anything for him, nor could the congregation, but told him he should go to Mr. Muhlke and entrust his matters to him, giving a promise that he would see Mr. Muhlke and speak to him about it. Mr. Uhlich was satisfied, and said he would go and see Mr. Muhlke about it, and not neglect it.

In answer to the question, did Mr. Uhlich, at this interview, say anything else with regard to who had sold and betrayed him, he'replied, yes, his son—his flesh and blood-—-as he understood, his son who was managing his affairs.

Mr. Hartman spoke to Mr. Muhlke several times about looking into Uhlick’s affairs, and besought him, in God’s name, to help him. Muhlke refused for a long time, and it was only by the importunity of Mr. Hartman he finally resolved to accept the position; that his partner in business was dissatisfied, that he was always attending to other people’s business.

After Muhlke looked into the business, which he found very complicated, and when he was assisting Uhlich, Mr. Hartman says that Uhlich expressed much gratification, and said if he had had Muhlke from the beginning, under his management he would have been one of the richest men in the city, and could have accomplished all his plans in the old country as well as in this, in regard to benevolence.

It would seem, from Mr. Hartman’s testimony, that Uhlich had a plan concerning a school in his native village in Saxony, of which he was one of the founders, which he designed to endow with ten or twenty thousand dollars, and a similar one in this country. He had always schools and orphan asylums in his mind, and said that money was a misfortune to people, and that it was the greatest happiness which could be received to a people to have a good education.

To understand Uhlich’s remark about his being sold and betrayed by his own flesh and blood, it is proper to state that, in' 1856, he had commenced the erection of a hotel on his property on State street, and had employed the complainant, at wages, to assist him, and after it was completed, employed him to assist in keeping it. In August, 1860, he discharged complainant, it would seem, from a want of confidence in him, and under the belief he was neglecting his business, and Avas intemperate in the use of intoxicating liquors; at any rate, the father ceased from this time forth to have any confidence in complainant, or much affection or respect for him.

To understand the allusion to the dissatisfaction of Mr. Muhlke’s partner, it is necessary to say, Mr. Muhlke Avas then in a profitable mercantile partnership in the sale-of dry goods on State street, from Avhich he Avas realizing remunerative profits, and Avhich bade fair, in time, to bring him more than a competency.

It ay as “a cold day” Avhen Uhlich made this call upon his pastor “i;u h;s study.” In ^November, 1860, Mr. Uhlich’s bankers had failed, having in their hands more than five thousand dollars of his money, for the security of which he had eighty acres of land, then worth much less than the amount owing to him. It must have been, then, in the last of that month, or in the next succeeding month of December, that Mr. Muhlke was applied to to look into UhliclVs affairs. He, it appears, was an unexceptionable man in every respect, standing well in the mercantile community, and enjoying the confidence of all his acquaintances; was a German by birth, but Americanized by a long residence in Chicago; understood English well, and was a competent adviser to all his countrymen who might, and did, come to him for advice in all business matters in which they were interested. Much of his time was consumed in this way-, and it is not surprising he should have hesitated, having his own business to attend to, to look into the complicated affairs of Uhlich.

At this time, or shortly after, certainly as early as January, 1861, Uhlich looks to Muhlke for advice, and, under the active energies of his mind, his adaptation to comprehend and manage a large estate, soon order took the place of confusion, and the estate of Uhlich was put upon such a footing as to yield large revenue for succeeding years, his debts were paid, and peace, tranquility and contentment reigned, where so long distrust, embarrassment and despondency had prevailed. That much of this was due to the vigilance, skill and fidelity of Muhlke, there can be no doubt on the evidence, and that he was to those old people “a guardian angel” is so true that this term which they' gave him can scarcely be considered an hyperbole.

Muhlke continued his attention to the business, though engaged in mercantile pursuits of his own, from January, 1861, without compensation being mentioned by either of the parties, Uhlich occasionally making to him valuable presents. All that was done, however, was under the supervision of Uhlich himself, Muhlke being his adviser only, and acting only with the approval of Uhlich. Thus money xvas borroxvecl, and to large amounts, by Uhlich, under the advice of Muhlke, and used by the latter in xraluable improvements, affording almost princely rex-enues. In short, all that man could do, aided by fortuitous circumstances, xvas done by Muhlke to improve the- estate and make it productive, and he xvas suecessful, giving quiet to old hearts near breaking, and causing precious drops to iloxv, xvhere before fan only bitter tears.

Thus matters. continued, and thus xvere the relations of Uhlich and Muhlke up to the date of the deed in question, March 20, 1865. For four years and more, compensation had not been mentioned.

In July, 1861, Uhlich made his will, draxvn up by Far-well & Smith, xvith xvhom had been before associated in business, and since, Mr. Goodrich, of whose family, xvhen a boy, Muhlke had been a member, and xvho, on one or more occasions, had been his legal adviser in cases not personal to Muhlke. There is no doubt a mutual confidence existed betxveen them. By this xvill, the bulk of the property xvas devised to Mrs. Uhlich, and Muhlke appointed executor, xvithout giving any security.

On the 20th of March, 1865, Uhlich and his xvife, xvith Muhlke, went to the laxv office of Goodrich, and, staying a fexv minutes, Muhlke xvent away, leaving the old people xvith Mr. Goodrich. This gentleman spent some hours xvith them in ascertaining their xvishes and in draxvingthe deed and an agreement. The papers were fully explained by an interpreter present, the clerk of Goodrich, Farwell & Smith, and they understood them. Muhlke returned to the office after the papers had been draxvn and explained, and took no part in the transaction except in assisting the interpreter, at his request, in explaining the location of the property described in the deed, xvhereupon the papers xvere executed by the parties.

The deed by Uhlich and xvife conveyed to Muhlke an undivided one-third of real estate in Chicago, of the xralue of about one hundred and txventy-five thousand dollars.

These are all the circumstances attending the execution of the.deed, of which any direct proof is afforded. The grantors in the deed are dead, and the rules of law, when this cause was tried, did not permit the grantee to speak. From them we are called upon by complainant to say that the deed is null and void, by reason of the relation then existing between the grantor and grantee, the latter being the confidential agent of the grantor.

We have examined the rule of equity invoked by the complainant, as applicable to such cases, and no commentator on the principles of equity, and no reported case, goes to the extent of saying that, by force of such relation, a deed is ipso faeto void. If such was the rule, a grateful man, to whom important services had been rendered, whose estate had been saved from ruin by a friend who had not stipulated for any compensation, would be prohibited from receiving any testimonial of the gratitude of the other. Kindness, important services, and friendship to the distressed, would be under a legal, ban. A man, in the full possession" of his faculties, wrould.be prevented from selling or giving away any portion of his large estate to one by whose advice and counsel it had been rescued from ruin. It is difficult, at all times, to prove a negative—to prove that a grantee, standing in this relation, did not use the influence he possessed over the grantor to induce the deed; that he did not abuse the confidence reposed in him; nor does the rule require it. Kerr on Fraud, 103.

A confidential relation gives cause of suspicion, and the circumstances under which a deed is made during such a relation, must be closely scanned; and if a reasonable suspicion exists that confidence has been abused where reposed, the deed should be set aside. Suspicion may be removed, and when the circumstances attending this transaction are closely scanned, not a scintilla of doubt can remain that the whole thing was the outpouring of grateful hearts to the best and most cherished friend they had on earth, and who had raised them tip from misery to happiness. The property was their own; they had a right to do with it as they pleased, and after giving away one-third, as some recompense to their friend, they had enough remaining to make them very rich, and more than they knew what to do with.

We think the established facts of this case remove all suspicion of abuse of confidence, or of fraud, constructive or actual.

To render such a transaction valid, it is only necessary to show that the other party had competent and disinterested advice, or that he performed the act, or entered into the transaction, voluntarily, deliberately and advisedly, knowing its nature and effect, and that his consent was not obtained by reason of the power and influence to which the relation might be supposed to give rise. Kerr on Fraud, 104, and the many cases cited under note (1).

It can not be pretended, in this case, that the grantors in this deed did not act voluntarily, deliberately and advisedly, well knowing the nature and effect of the act. Can it be doubted these aged people, between whom the closest confidence existed, who both loved Mr. Muhlke, who fully appreciated his services, who knew he had never demanded any recompense, who had no child or children on whom their best affections centered, who were oppressed by the magnitude of their own wealth, made great by Muhlke, that they had talked over the subject of compensation, in the form it finally assumed, many a time? There can be no doubt about it. No one has impeached the mental soundness of Mrs. Uhlich, or questioned her capacity, or believed that she was ignorant of the position she and her husband occupied towards Muhlke, and that she was his adviser in this matter there can be but little doubt. Were they alive to speak, they could doubtless tell how many hours, day and jiight, they had taken sweet counsel together as to the manner and form in which they should compensate their benefactor and “ guardian angel.” Having more than enough for themselves, and desiring to secure Muhlke’s services when she should be a widow, which was then probable, how natural was it for them to cause the compensation to assume the form it did..

As ground for supposing this deed ivas the result of undue influence by Muhlke, arising out of his relation to Uhlich, it is said by complainant, the old gentleman was involved in a church connection, the power of which was brought to bear upon him in favor of Muhlke, who was a member of the same church.

We have already quoted some of the testimony of Mr..' Hartman, the pastor of the church, and fail to perceive anything in it, or in that of any other witness, to justify such a belief; nor does any portion of his testimony raise such a suspicion. He told Uhlich, when he applied to him for advice, that neither he nor the church could help him; that he must get Mr. Muhlke, who was a man of business. Here, certainly, is no church pressure upon him. As was natural in his affliction, he applied to his pastor for advice, and that 'is all.

It is also said that Muhlke caused the removal of the old people from the south to the north side, placing them upon a lot adjoining his own, in a new house he caused to be built for them with Uhlich’s money, in order to withdraw him from intercourse with his sons and friends residing on the south side, and with a view to get them more completely in his power.

We do not think the evidence sustains this view. It is apparent, from the facts attending this removal, that Uhliclr’s motive in removing was to render more easy the intercourse which was becoming move and more necessary between him and his agent. His residence on the south side was four miles distant from that of Muhlke, and in a neighborhood not then very desirable, there being more drinking saloons than school houses or churches, to which his sons, August and complainant, could have ready access.

MuhIke’s motive may be ascribed to the fact that, as he had become Uhlich’s agent, in managing a large estate, frequent consultations were necessary, and which could be more readily had with his principal on an adjoining lot. There is no ground for charging improper motives in this particular.

Upon the other ground, we do not perceive that Muhlke at any time exaggerated the extent and value of his services to Uhlich, with a view to a great reward from him, or that he boasted of them at all. It was Uhlich who did this, and he had good cause.

"We concur with the learned judge who tried this cause in the Superior Court, that this deed was the free and voluntary act of Mr. and Mrs. Uhlich, there being no constraint or intimidation shown, or abuse of confidence. It is also in proof that, years after its execution, the grantors, on several occasions, when with their friends, not connected with or under the influence of Muhlke, expressed their satisfaction that they had executed this deed, and that, in their opinion, Muhlke deserved all he had received, and it was further ratified, impliedly at least, by Uhlich, when he subsequently executed the deeds disposing of his property in September, 1867, for at that time he made no disposition of the property included in this deed, considering it as the property of Muhlke.

It is perhaps true, as urged by complainant, many men could have been found in Chicago who would have attended to Uhlich’s business for four or five thousand dollars a year, and yet that very man so employed might have swamp’d the whole estate in half that time.

It was the good fortune of Muhlke to possess energy, fidelity and business talents, and his praise that he employed them all for the best interests of his constituent. Why shall he not have a recompense ?

But it is further insisted by the complainant, that the deed bears the impress of a sale, and being for the expressed consideration of twelve thousand dollars, carries a falsehood on its face, and that the unusual clause, “ and for other good and valuable considerations,” is indicative of a fraudulent intent, or at least of a desire to conceal something which could not bear the light, but yet of which the guilty party might desire at some time to take advantage; and he further insists that the consideration is so grossly inadequate as to compel a court of equity to set it aside as fraudulent.

. It is said that no such money consideration was paid, and there is no proof it was paid. It is proved, however, that the lands, of which an undivided third was conveyed, were subject to a mortgage to Newberry of $30,000, which, with the interest up to the day of the date of the deed, amounted to $36,000.

The conveyance was made to Muhlke, subject to the payment of one-third of all the incumbrances upon the property, and though he did not covenant to pay them, still, no title to the property could be enjoyed by him until he should relieve it from the lien. By accepting the deed, Muhlke impliedly undertook to pay his proportion of the incumbrance on the premises^ and though that might not of itself be a sufficient consideration for a conveyance of one-third of the property, which exceeded in value many times the amount of the incum> brance, yet it may relieve it from the charge of being fraudulently made, when it appears it was satisfactory to the grantor at the time, though it may not be' satisfactory to the complainant, now.

Cases may be found, perhaps, and one is cited, Murray v. Palmer, 2 Schoales & Lefroy, 482, where it was held that these words, “ thrown into the body of a deed of purchase, are always of themselves symptoms of fraud.” They are but symptoms, which may be removed by the real facts of a case;

What are the facts in this case? Muhlke had rendered four years’ service, of the most important character, to Uhlich, for which he had received no compensation, and on the day of the date of the deed, and simultaneous with it, he entered into a covenant to continue those services even after the death of Uhlich; and if he himself should die, he covenanted that his successors after him, and at the expense of his estate, should render them,

The proof shows that, immediately after entering into this covenant, Muhlke endeavored to free himself from his mercantile partnership, but without success. By the articles- of co-partnership, it could not terminate under one year, and although it had been determined' to carry it on, with Muhlke at the head, beyond that term, yet he caused an end to be put to it, at the expiration of the year, left the concern, opened an office in “Uhlich’s block,” devoting his entire time to the business of his employer.

It is in proof, when this covenant was entered into by Muhlke, his business as a merchant was large and remunerative, and gave promise of a speedy fortune; in fact, he had, by it, acquired property estimated at $50,000. It is by no means certain that he did not, by thus surrendering such a business, deprive himself of gains Avhich would haAre amounted to the value of the property conveyed to him at the time it was conveyed. We think there was adequate consideration for this deed, and must hold it valid.

This topic naturally suggests some other considerations. It may be said the true relation subsisting between Uhlich and Muhlke was that of principal and agent, confidential if you please, and nothing more. In relation to such, the rule is well settled, that a gift by one to another, who has been for many years his confidential agent and adviser, is A7alid, unless the party who seeks to set it aside can show that some advantage was taken by the agent of the relation in which he stood to the donor. Kerr on Fraud, 125. It is also there held, that there is no rule to prevent an agent from dealing Avith his principal in respect to the matter in Avhich he is employed as agent, but he must show, to the satisfaction of the court, that he gave his principal the same advice in the matter as an independent and disinterested adviser would have done. Ib. 125.

If no advice is asked of the agent, and none Avas necessary in this case, none could be given. The transaction is not to be based on these narroAV grounds. The whole field must be surveyed, the most prominent objects regarded, and the true nature and character of the transaction considered, which we have endeavored to do, and find it unlike, in its most important features, any one of the numerous cases cited. We have examined all the cases accessible to us, which have been cited, and find no one of them, in its leading features, like this. It is not like the case of Butler et al. v. Haskell, 4 Dessaussure, 651. The note of that case is: The heirs apparent of an idiot, whose estate was in the hands of a committee, being weak, illiterate and necessitous, and finding a difficulty in procuring and perpetuating the evidence of their relationship, employed an agent to transact the business for them, at a commission of ten per cent on the amount to be recovered; the agent afterwards purchased their interest in the estate at about one-fourth its ultimate value; when the estate was recovered, he took from them, in pursuance of his purchase, a conveyance of their interest and a power of attorney to promote the decree, and to receive to his own use their share of the estate yet to be accounted for. The contract of purchase, was set aside on the ground of gross inadequacy of price, connected with the Aveakness and necessities of the sellers ; and on the further ground, that the agent was legally incapacitated to purchase from his principal the estate ivhich was the subject of the agency, so long as this relation of confidence existed.

This decision Avas made in 1817, and the last clause of it is not the laAV as noAV understood, as the authorities abundantly show. Thus, Mr. Justice Story says, in his treatise on Equity Jurisprudence, “it is therefore for the common security.of all mankind, that gifts procured by agents, and purchases made by them from their principals, should be scrutinized Avith a close and vigilant suspicion. Agents are not permitted to become secret Arendors or purchasers of property which they are authorized to buy or sell for their principals; or, by abusing their confidence, to acquire unreasonable gifts or advantages; or indeed, to deal validly with their principals in any case, except where there is the most entire good faith, and a full disclosure of all facts and circumstances, and an absence of all undue influence, advantage or imposition.” 1 vol. sec. 315. It is not like the case of Huguenin v. Baseley, 14 Vesey, 272, where a widow lady settled upon a clergyman and his family the great bulk of her estate, of the value of which she was ignorant, she living in the West Indies, some thousands of miles from the property. It was a clear case of imposition, undue influence and fraud.

It is not like the cade of Pickett v. Loggon, ib. 215, where a conveyance by lease and release and fine was set aside upon great inadequacy of consideration combined with misrepresentation and surprise upon parties in extreme pecuniary distress, ignorant of their interests, and not properly protected. In a note to this case is the following passage from Story’s treatise, from which we have quoted, supra, sec. 251: “If proper time is not allowed to a party, and he acts improvidently; or if he is importunately pressed; if those, in whom he places confidence make use of strong persuasions; if he is not fully aware of the consequences, but is suddenly drawn to act; if he is not permitted to consult disinterested friends, or counsel, before he is called upon to act in circumstances of sudden •emergency, or unexpected right or acquisition.”

It is not like the case of Greenfield’s Estate, 2 Harris, 14 Penn. State R. 489, where a widow lady, of the age of eighty-six, hard of hearing, and otherwise infirm, made a deed of conveyance to four persons, for the consideration of $100, one of whom was her confidant and adviser, in which an estate was conveyed worth $200,000. The deed was absolute on its face, but was accompanied by a written declaration of trust, executed on the same day. Neither of the deeds was read to her or by her, and she was dependent on others, in whom she placed confidence, for advice and direction in her pecuniary affairs. The court say, “ looking to the whole case as it is presented by both proofs and pleadings, the questions may be asked, was Mrs. Greenfield aware that, by the terms of the declaration, her estate was to be burdened with the payment of $40,000 as compensation to the trustee? Did she know that this sum was payable, though each of the trustees might decline the burden of the trust within a year after its creation? She might have been acquainted with the first provision without being cognizant of the last, for they are widely separated in the deed. Who shall say it was not so? And yet to sustain it, I repeat, it must be clearly established she not only knew of, but comprehended both thoroughly. It is extremely difficult to believe she understood, and deliberately assented to this. The doubt is .sufficient to invalidate the provision.”

The case of Griffiths v. Robins, 3 Mad. Ch. R. 105, top paging, is so meagre of facts, unaccompanied by any argument of the court, that it can not be regarded as authority on this point. The court say, “I do not think it necessary to enter into all the transactions stated to be attendant on the deed, and in the manner which it was prepared. It is sufficient to say, that the defendants have not made out that case which the policy of this court requires from persons standing in that relation to the donor in which they have placed themselves.” The decree was according to the prayer of the bill, that the deeds of gift be given up.

It is not like the case of Whelan v. Whelan, 3 Cowen. 537, decided in the court of errors. That was a clear case of fraud and imposition practiced by a son, who had full control over his father, by which he obtained from his father a deed for his farm, valued at $9000.

It is not like the case of Hatch v. Hatch, 9 Vesey, 292, where a conveyance from a ward to her guardian, under circumstances showing fraud and imposition, was set aside.

The case of McArtee v. Engart, 13 Ill. 242, decides only, that mere inadequacy of consideration in the conveyance of land, as between vendor and vendee, would not justify the interposition of a court of equity to set aside the conveyance, unless it was so gross and palpable as to shock the moral sense; but, when fraudulent practices are used, under such peculiar circumstances as make the vendor the prey of the vendee, the aid of the court may be had. The facts of the case show fraudulent practices of an aggravated character.

The case of Casey v. Casey, 14 ib. 112, but récognizes the well established rule which we have quoted: when confidence is reasonably reposed, it must not be abused. The party relied on must see that he meets fully and fairly the responsibility of his position, and takes no advantage, either to the injury of another or for Bis-own gain.

The case of Jennings v. McConnel, 17 ib. 150, was a case between client and counsel, and the uniform rule recognized, that, in such cases, it is not incumbent on the client to prove fraud; upon showing the relation, the onus is upon the attorney to show fairness, adequacy and equity, and upon failure to make proof, courts of equity treat the case as one of constructive fraud.

The case of Dennis v. McCagg, 32 ib. 429, is to the same effect.

The case of Baldwin v. Dunton, 40 ib. 188, is upon the question of mental capacity to make a contract for the sale and conveyance of land, and has no bearing upon the point now under discussion.

The case of Gibson v. Russell, 2 Young and Collier, 21 Eng. Ch. Rep. 104, has a direct bearing on one point of this part of the case, and that is, in relation to the expressed money consideration. In that case, there was a simulated payment of £1000, effected in this way: The grantee, an old and infirm man, and not in full possession of his faculties, but worth £30,000, made a conveyance to his medical attendant of the most valuable part of his estate, on the payment by the latter of that amount of money, which the grantor had privately handed to him for that express purpose. The deed, it was held, stated, contrary to the truth, a money consideration, and that was held one of the proofs of fraud in obtaining the conveyance.

If the consideration of the deed now in question rested alone upon the money expressed in it, and there was in fact no money paid, it would be, palpably, a circumstance from which fraud might be inferred, if there was proof the' grantor was imbecile, or incapable of knowing what he was doing. But we have already said all we deem necessary to be said on this point of the case. We are satisfied the deed of March 20, 1865, is liable to none of the objections made to it, and is, in all respects, a valid instrument.

We will now consider the deeds executed in September, 1867.

It is objected to those, also, that they Avere obtained by fraud and undue influence, Avhile the grantor was of Aveak and unsound mind, and were the result of fraud and conspiracy on the part of Muhlke and Ernst, by undue influence, not only to obtain a large share of the property of Carl Uhlich, to the exclusion of complainant and August, but also fraudulently to obtain from complainant conveyances confirmatory of such fraud, and further assurance of the title to the lands thus fraudulently obtained by them, and to deprive complainant of the property he Avas told Avas given to him, and to obtain, in addition, covenants of Avarranty from him of their title. And further, that the deed of complainant Avas obtained from him through fraud, and Avas without consideration, and executed and delivered under a mistake of law and of fact, and under threats and compulsion.

In regard to these deeds, we can not concur with the vieAvs expressed by the learned judge who tried this cause. Nor do we concur in the opinion, that the will of 1861 was valid for any purpose connected with this cause. It had not been probated, and no rights Avere claimed under it, by any of the parties to this suit, and Avas superseded by the will executed July 10, 1867, Avhich, in its turn, Avas superseded by the deeds of September of that year. The Avill of 1867 Avas not probated, nor Avere any rights claimed under it, nor Avas it before the court for adjudication.

The charges in the bill of complaint against these deeds are of a loose and general nature, and no proof is offered to sustain them, it being taken for granted the court will presume them to be true from the relation which Muhlke bore to the grantor, Carl Uhlich, and that he, by reason of his control over Ernst, could make him his tool in a conspiracy to defraud complainant of his rights.

The idea that the old man was incapable, by reason of mental infirmity, to make the deeds, has nothing to rest upon. He was quite as competent in 1867 as he was in 1865, when he made the deed of March 20 of that year. Nothing had occurred since then to weaken his mental powers. His physical powers were impaired somewhat, as he had become nearly blind, but in other respects he had no infirmity not common to persons of his age. Lindsey v. Lindsey, 50 Ill. 79. He had competent understanding and a disposing mind, and remembered well all he had done, and told his friend, Hammermiller, what property he had conveyed to this and to that son, and to Muhlke.

But it is said, these deeds were the consequence of the will, and as that was effected by the influence of his wife, when on her death bed, a fortnight previous, it was not his will, and the deeds, therefore, can not be considered as his voluntary act.

There is not a particle of evidence in the record of any interference by Mrs. Uhlich with her husband as to the terms of a will. She was desirous the will which bequeathed to her the bulk of the estate should be changed, as her death was approaching, but how changed, who were to be the beneficiaries, no witness has stated. All we know about it, is the statement of Elizabeth Uhlich, in which she says: “ On the evening of the day Mrs. Uhlich died, Mr. Uhlich called us up to the bedside of the old lady, who was in the front room, and he told us he would institute Mr. Muhlke as a child in the will, because'he had well attended to his affairs and to his business, and that if it had not been for Mr. Muhlke, we would all have to carry saw-bucks, and that if Henry got a start, or a beginning, he would run the whole of it through. I don’t know whether he meant he would spend it, or that, if he got hold, in any way, he would spend it in law. And he further told us we should not hate Mr. Muhlke, but live together in a brotherly spirit; that this man had deserved it.”

The record will be searched in vain for evidence of influence, undue or otherwise, exerted by Mrs. Uhlich, or by any other person, over the testamentary disposition of his estate. There is no evidence of it any where,, other than the fact that Muhlke was a great favorite of Mrs. Uhlich, and it might be inferred, when she was informed he was to be a child in the will, and she expressed no dissatisfaction therewith, that it ivas at her own instigation. But this Avould be a very forced inference, which no court would be justified in draAving, for the purpose of invalidating a Avill in other respects valid.

We see no evidence that this will Avas the conception of Mrs. Uhlich, or that she had the least agency Avhatever in causing it to be executed, save and except a wish she often expressed, in expectation of her death, that her husband should make another will in her lifetime, Avhich he declined to do.

Mr. Uhlich, judging from the testimony, was not a man of malleable mind, to be beaten out or shaped by any designing person. He had his own mind, and his own notions of right and justice, and acted upon them on all occasions. The fact there Avere unkind feelings between him and his wife about the will, amounts to nothing, as they disappeared in a moment. He was kind to her, and confided in her to her dying day.

Bor aught'that appears in this cause, this will, if offered for probate, should have been admitted as the last Avill and testament of a man of sound and disposing mind and memory, uninfluenced by any one.

But there is no necessity for giving to it much consideration, as another and different disposition of the property specified in it was subsequently made by the testator in his lifetime, which was, the several deeds executed in September following.

We have purposely laid out of view the conduct of complainant towards his parents, or the expression of any opinion upon his claims to paternal confidence and regard, believing it is wholly immaterial, in treating of these deeds, to designate the status he ought to occupy.

We take the ground, that all the property conveyed by these deeds, being the property of Carl Uhlich, he had an unquestioned right to convey it to whom he pleased, there being no creditors; that complainant had no claim to it, nor any other of his sons; that the grantor had a perfect right to impose conditions upon any one of the grantees, to make the deed to him operative; that he had a right to judge who were proper objects of his bounty, and, if free from insane delusion or senile dementia, passing by his own children, give it to aliens to his blood. This principle was distinctly announced by this court in the case of Heuser et al. v. Harris, 42 Ill. 425, and Clearwater v. Kimler, 43 ib. 272, and is the doctrine of the American courts. In the first case, it was said, a child has no natural right to the estate of his father; if he has, it is a right which can not be asserted against the testamentary disposition of the estate by the father. A disposition of an estate by the owner, by will or deed, there being no legal impediment, determines its destiny.

The whole principle was embraced in the language of the old man, when, on the 21st of September, 1867, the parties had met at his house to receive and give deeds. When everything was explained to the complainant, he saying that he understood it himself; that he was not a boy, but hesitated to sign the deed required of him, “Won’t you take that, if I give you so much? Then I’ll give you nothing; then you shan’t have anything; I can do what I please with my property.”

This property belonged to Carl Uhlich. He disposed of a portion of it to complainant, in value not far from §70,000, on condition complainant should release to others of his grantees of other portions of the property, all his right, title and interest to such other portions, with special covenants against himself. He accepted the deed with that condition. He executed the clause after full consideration of three days, knowing its contents and effect. He, in his father’s lifetime, took possession of his portion, sold some of it, mortgaged some, and exercised complete dominion over it, and now asks that all the proceedings shall be set aside, for reasons having no foundation in fact, and unsupported by any principles of equity or jpstice.

This arrangement by deeds, rather than by will, may be regarded in the light of a family arrangement, which is favored by courts: Kerr on Fraud, 364.

There is nothing to show the father was not a free agent in thus distributing his property, or incompetent in any degree. His desire was to satisfy all his children, including complainant, for whom it would appear he had but little affection. It was made by Carl for the purpose of avoiding litigation after his death. He had the right to dictate the terms on which he would make the distribution. Complainant accepted those terms, and must be concluded by his own voluntary act. His father had the right to omit him entirely, but out of regard to the memory of his deceased mother, he gave him an ample fortune, of which he at once took the control.

The fact that complainant’s deed of release to Ernst and Muhlke conveyed away the best portion of the estate granted to him, can not operate to upset all these proceedings. It was a mistake, clearly, which the parties, on being informed of, proffered to rectify at once, and executed proper deeds of conveyance for such purpose, so that complainant might be as-' sured in the title to all his father had granted to him.

There is nothing in this case to commend it to the favorable consideration of a court of equity. There is much to show complainant should be grateful for that which has been given him.

On the whole case, we are of opinion that so much of the decree as establishes the deed of Carl Uhlich and wife to John H. Muhlke, of the date of March 20, 1865, to be a valid deed, be and the same is affirmed; and so much thereof as establishes the will of Carl Uhlich, of July 6, 1861, a valid will, and the deeds of September 19 and September 27, 1867, particularly described in complainant’s bill, as invalid, be reversed, and the said deeds be and the same are hereby declared to be good and valid in law. The costs to be paid by the complainant, Henry Uhlich.

Decree modified.

This causo was originally decided at the September term, 1869, and Mr. Chief Justice Breese delivered the opinion of the court. Subsequently a rehearing was granted, and the cause was heard at the September term, 1871, before the full bench of seven judges, as the court was organized under the new constitution, when an additional opinion was filed, in which a majority ot the court adhered to the original opinion. Mr. Justice McAllister, who was of counsel on the first argument, took no part, in the decision or in the conduct of the cause on the rehearing.

Subsequent to the delivery of the original opinion, and prior to the rehearing, Mr. Justice Lawrence became Chief Justice.