De Freese v. Vanderford

THOMAS, J. The final decree denied relief on the respective theories of the bill— that fraudulent dominance or undue influence was exercised (Cox v. Hale, 217 Ala. 46, 49, 114 So. 465); or that a resulting trust existed. It will not be necessary that the recognized distinctions between implications of a resulting trust and the legal presumptions of an implied or constructive trust be here considered. Rudulph v. Burgin, 219 Ala. 461, 122 50. 432; Hill v. Hill, 216 Ala. 435, 113 So. 306; Montgomery v. McNutt, 214 Ala. 692, 108 So. 752; Blanks v. Atkins, 217 Ala. 597, 117 So. 193; Sanders v. Steele, 124 Ala. 415, 417, 20 So. 882; Bailey v. Irwin, 72 Alá. 505; Patton v. Beecher, 62 Ala. 579. It is sufficient to say there were conflicting tendencies of evidence that were resolved by the trial court, after seeing the witnesses and hearing their evidence given -ore tenus. Hackett v. Cash, 196 Ala. 403, 72 So. 52; Hodge v. Joy, 207 Ala. 198, 92 So. 171;. Andrews v. Grey, 199 Ala. 152, 74 So. 62. And his holding supported the view that, after the death of grantor’s wife, he sold the farms owned, by them, one for $4,900, and gave $700 or $750 to each of his children, and invested $3,000 in the home which he conveyed to respondent. It was not unreasonable that he should have given his children the amount, or a sum in excess thereof, for which his wife’s interest in the farm was sold, and retained the balance for his shelter, support, and maintenance during his last, lingering days of sickness unto death. All -of the evidence (except that of Dr. Kinnabrew) was taken in open court, and we will not disturb the result of the decree, whatever the theory on which the trial was had. The witnesses, who were not parties in interest, say the father and grantor was a man of strong or decided conviction, not easily persuaded, knew and understood the natural objects of his affection and the usual claims of the ties of blood or relation, was conscious, or not under the dominance of mental disorder, when the deed was made on August 4, 1924, about 14 days before his death. The proof tends to show the other children were better provided for by their material or worldly goods than was Mrs. Vanderford, and that the latter and her husband spent many months in the personal and necessary ministrations for the sick father. The complainants did not testify that the father was not capable of making the deed when he did, and there was ample evidence, or reasonable inferences therefrom, that these. appellants participated in ’ the transaction of the sale of the farm, and thereby intended it as a gift to the father, or as repayment for the several sums of $700 or $750 he gave them when former sale was consummated. If the money paid for the last tract *362 of real estate was that of the father, then no trust in the land could result in favor of his children, whatever be the alleged parol promise. However, the question of fact as to such alleged parol promise of Mr. De Freese to purchase other lands with the proceeds of the first sale, or with a part thereof, for the benefit of complainants, is controverted. In view of the natural dominance usu-1 ally or prima facie presumed to be exercised by 'a parent over the child, the latter is not required to prove the fairness of a conveyance or gift by the parent; that is, unless the evidence of surrounding circumstances overcomes the presunqjtion of the dominance of the parent over the child. Gibbons v. Gibbons, 205 Ala. 636, 88 So., 833. It will serve no good purpose to discuss the evidence in detail. The usual presumptions of dominance of the parent are not ■overcome by the circumstances of his continued illness and the natural services and ministrations of the child, without undue influence or dominating power or control of that child when the deed was made. The decree is affirmed. Affirmed. SAYRE, BROWN, and FOSTER, JJ., concur.