Mix v. Smith , 387 S.W.2d 1 ( 1965 )

STEWART, Judge

(dissenting).

I find myself unable to agree with the majority opinion. The great preponderance of the evidence introduced as to Will White’s mental competency, including his doctor’s testimony, established he was suffering from an acute condition of senility, and did not understand the consequences of his act, when he executed the deed. The chancellor found, almost solely upon the basis of the testimony of the attorney who drafted the deed, that Will White was rational when the conveyance was executed.

Although the opinion is transparently scant as to the testimony produced in respect to Will White’s mental ability to know what he was doing at the time, there is no evidence whatsoever in the opinion which points up the fact that the procurement of the deed was free from the exercise of undue influence.

In this case a confidential relationship existed. When Will White became helpless, his niece moved in with him and, shortly after he was released from the hospital, where, as the opinion states, “he was * * disoriented, and unable to relate himself to his invironment,” an attorney appears on the scene and the deed transaction was consummated.

According to Hightower v. Hightower, cited in the opinion, the burden was upon the niece, the beneficiary under the deed of conveyance, to show no undue influence was exerted to secure this deed from a helpless old man. As held in Fortney v. Elliott’s Adm’r., Ky., 273 S.W.2d 51, 54, this must be proven by clear and convincing evidence. There is a complete absence of evidence in this respect.

HILL, J., concurring.