Nyhagen v. Markham ( 1918 )

Winslow, C. J.

There was no direct affirmative evidence of fraud or undue influence in the present case. The rule is very well settled in this court that, in case of a conveyance by an aged person of substantially his entire property without consideration to one in a position of trust and confidence, if it be shown (1) that the grantor was unquestionably susceptible tO' undue influence, (2) that there was opportunity for such influence, (3) that there was a disposition on the part of the grantee to exercise it, and (4) that the result clearly appears to be the effect of the supposed influence, a prima facie case of fraud is made out, which must be met by affirmative evidence establishing the good faith of the transaction or it will prevail. Vance v. Davis, 118 Wis. 548, 95 N. W. 939; Winn v. Itzel, 125 Wis. 19, 103 N. W. 220; Quinn v. Quinn, 130 Wis. 548, 110 N. W. 488.

Doubtless the trial judge tested the present case by this rule and found that the case required had not been made. Careful reading of the record convinces us, not merely that the evidence does not preponderate against the trial judge’s conclusions, but that they are sustained by the evidence. While there was unquestionably the confidential relationship and the opportunity for the exercise of undue influence, the evidence entirely fails to show that the grantor was susceptible to such influence or that there was any disposition on the part of the defendants to exercise it. On the contrary, both propositions seem to us to be disproved by affirmative evidence.

By the Court. — Judgment affirmed.