Burnett v. Smith , 93 Miss. 566 ( 1908 )

Calhoon, J.,

delivered the opinion of the court.

We think, on the evidence in this ease it impossible to reverse the holding of the court below that Hartzog was mentally capable when he made the deed. If he was of sound mind, he certainly made, acknowledged, and had this deed recorded, with every indication of consideration in his action — a deliberate purpose to give his property to his youngest child, a daughter, who had never left him. On the question as to his being induced to execute the deed by undue influence, we think there is no evidence to be found warranting the court in so holding. His daughter, Mrs. Smith, was incompetent as a witness, because her testimony would be in support of her claim to the property of the deceased under that deed. Her husband testified that he or she never knew that the deed was made, or intended to be made, until it was delivered to Mrs. Smith (Hartzog’s daughter) after it had been executed, acknowledged, and recorded. The procedure of Hartzog seems to have been with the utmost deliberation. He sent for the gentleman to prepare the deed, who did prepare it, and Hartzog signed the deed; his daughter, Mrs. Smith, who was his youngest child, not being-present Hartzog himself went before the officer and acknowledged it, took it to a store where he traded, and caused it to be sent to the office of the chancery clerk to be recorded. After it was recorded he had it returned to him and delivered it to Mrs. Smith.

There could have been no undue influence, unless it was such as to take away the free agency of Hartzog, and the chancery court found that such was not the case. It must be kept in mind that capacity to make the deed is implied until overthrown by evidence, and we see by reference to 29 Am. & Eng. Ency. of Law (2d ed.) 105, that not every influence is undue, and undue influence cannot be predicated of any act unless free agency is destroyed, and that influence exerted “by means of advice, arguments, persuasions, solicitation, suggestion, or entreaty is not undue, unless it be so importunate and persistent, or otherwise so operate, as to subdue and subordinate the will and take away its free agency. Nor is influence ordinarily considered undue which arises out of sympathy, kindness, attention, attachment or affection, gratitude for past services, desire of .gratifying the wishes of another or of relieving distress, claims of kindred and family or other intimate personal relations, love, esteem, social relations, prejudices, or flattery.”

We look in vain in this record for any satisfactory evidence of the exercise of undue influence. We refer, also, to 8 Words and Phrases, commencing on page 7166, for definitions of and authorities on “undue influence;” and we find nothing in this record of sufficient moment to authorize a reversal of the chancellor’s conclusions on the facts of this case. A man of sound mind may execute a will or a deed from any sort of motive satisfactory to him, whether that motive be love, affection, gratitude, partiality, prejudice, or even a whim or caprice. Under the circumstances of this case, it occurs to us as quite natural that Iiartzog should prefer his youngest child, a daughter, who had always been with him, and the mere fact that there was no recognition in the deed of his other children, who were of middle age and settled in life, could not be held to be a presumption of undue influence or a lack of free agency. No expert testimony as to sanity was offered. All the witnesses knew the man. Wood v. State, 58 Miss. 741; Sheehan v. Kearney, 82 Miss. 688, 21 South. 41, 35 L. R. A. 102.

Affirmed.