Sullivan v. Clear.

*609 Keeler, J. The first request to charge the jury was a proper one, to the effect that if the deceased was found to have been mentally incapable to execute the deed, or under the undue influence of defendant, in either case, plaintiff should recover, and that the recovery should be the value of the premises conveyed with interest. The court complied with the request as regards mental capacity and undue influence, but upon the amount of recovery charged as follows: “If either of these propositions is established by a fair preponderance of the evidence, the plaintiff is entitled to recover the fair value of his interest in the property at the date of her death, less any amount that you find from the evidence that the defendant, in good faith, is entitled to for his services or his expenditures, or that for which he has obligated himself as a consideration for this conveyance. And to this amount so found you should add interest at the rate of six per cent to the date of your verdict. And as to the question of the amount to be deducted, I fail to recall that any stated amount was given you in evidence upon any one of those different items which I have just stated to you.” The plaintiff claims that the matter just quoted is an incorrect statement of the law and in its connection confusing. It was not incorrect as matter of law, since any allowance to defendant is made to depend upon the finding of the jury as to the good faith of the defendant in the transaction. Beckwith v. Cowles, 85 Conn. 567, 570, 83 Atl. 1113. In view of the fact that the jury found for the defendant, the correctness of the court’s charge on the question of damages is not before us. That it confused the jury, as claimed by plaintiff’s counsel, seems hardly probable. At any rate, the request included the item of damages in just this connection, and the content of the charge would *610 not be likely to be more confusing, if as stated by the court than if given in the words of the request. The court charged: “A person may be competent to make a deed though she has not mental capacity sufficient for the management or transaction of business generally and not mentally capable of making and digesting all the parts of a contract.” The plaintiff complains that this charge is erroneous, and that the law as to mental capacity should have been stated as contained in his second request, to the effect that a person must have mental capacity sufficient to clearly comprehend the nature and consequence of an act of conveyance, in order to make the latter valid. Standing by itself, the charge is not objectionable, but as applied to the case presented by the claimed proofs, it forms but a small part of the careful and correct presentation of the law of mental capacity contained in the charge, which is generally in entire accord with this second request: If, standing alone, the above instruction could be held as a somewhat broad statement of the law, clearly the jury could not have been misled when, in a later part of the charge complying with another request of the plaintiff, the court charged in the very words of the request as follows: “To have the capacity to execute a valid' conveyance, the grantor must not only have the ability to transact the ordinary affairs of life and to understand their nature and effect, but also to exercise his will in relation thereto without such will being unduly influenced by another.” Plaintiff’s third request, a correct general statement of the law relating to proof of undue influence, was fully complied with in an equally correct and more extensive explanation in that regard, in terms generally in use in instructions on this topic. The fourth request of the plaintiff was entirely *611 covered by correct instruction in the charge as given, and the specific objection urged by counsel, that it was mixed up with the question of counterclaim or offset of money expended by defendant, is disposed of at the beginning of the opinion. The fifth request was complied with by the court, and given to the jury with very slight verbal variation, not in any way affecting its force or content; it is evident that this error has been claimed by inadvertence. The sixth request is as follows: “If your verdict is for the plaintiff, it should be for such sum as will equal the value of the interest of Julia Norris in the estate at the date of her death, with interest thereon at the rate of six per cent, to the date of your verdict.” The request and the actual charge on the question of damages are, as we have before observed, immaterial in case of a verdict for defendant. But plaintiff’s counsel urges that since the above request was not charged, the jury might have found for the defendant on the ground that, although the deed was procured by undue influence, or while there was a want of mental capacity, yet defendant had done enough for the intestate to repay her; in other words, plaintiff complains that the jury might have made a concealed offset in favor of defendant. This is too fanciful to be seriously regarded, especially in view of the portion of the charge above quoted, wherein the judge observes that defendant had introduced no evidence as to his payments and services as regards the intestate. In addition to the requests to charge above considered, the plaintiff made ten additional requests, largely consisting of general statements of law fortified by reference to cyclopsedias. Many are correct expositions of general legal doctrine, but few, if any, would have added to the completeness or correctness of the charge. We will consider briefly such as have any *612 plausibility in connection with instructions given or required to be given for the proper information of the jury. The first of these relates to the consideration of the relatives of the deceased and the attitude of the deceased with reference to them. This subject is fully covered in the charge. In the second of these the court was asked to charge: “ If you find there was a relation of confidence and trust between Julia Norris, the grantor, and the defendant, it raises a presumption against the validity of the conveyance which the defendant in this case would have the burden of rebutting by showing on his part the absence of fraud or undue influence.” This appears to be an attempt to have the court apply to the relationship of plaintiff’s intestate to defendant the rule applying to those who act in a fiduciary capacity. Such a relationship as obtained between the deceased and defendant and the latter’s mother, all three of whom lived together for a long time, cannot raise the presumption which obtains in strictly fiduciary relations, such as attorney and client, guardian and ward, and other analagous relations. Defendant and his mother stood in as close blood relationship as any of the presumptive heirs at law of the deceased, and there exists in this case no suggestion of a preference for a stranger or remote heir. Dale’s Appeal, 57 Conn. 127, 144, 17 Atl. 757; Mooney v. Mooney, 80 Conn. 446, 452, 68 Atl. 985; Lockwood v. Lockwood, 80 Conn. 513, 523, 69 Atl. 8; Hills v. Hart, 88 Conn. 394, 396, 91 Atl. 257. The charge of the court upon this point was correct, and is as follows: “The burden of proving undue influence is on the party who asserts it. The blood relationship between this defendant and Julia Norris is no basis for an inference that there was undue influence. . . . Even though you should find that there was a close, con *613 Sciential relationship existing between this defendant and Julia Norris, it is absolutely necessary that the plaintiff prove that the defendant abused this confidence, although this proof might be by inference from opportunity or coercion.” The additional requests numbered three, four, five, six, seven and eight are attempts to state as rules and presumptions of law inferences of fact favorable to the plaintiff’s contentions. So far as allowable, all of them are covered in the charge as given, which reviews the facts extensively, and gives proper guidance as to their relation and bearing on the issues involved. The ninth of these requests merely repeats in another form the necessity of knowledge on the part of decedent of the effect of the deed given, a topic fully covered in the charge. The tenth additional request was in fact given and is quoted earlier in the opinion. There was no error in the court’s exclusion of the photograph of the residence of the sisters of the intestate. As showing their condition in life it might have some faint degree of relevancy, but as forming the basis of any finding, it is so remote as to be immaterial as bearing upon the intestate’s capacity or whether she was subject to undue influence, and its exclusion was within the proper discretion of the trial court. The trial court rightly admitted the oral proof of the actual consideration of the deed from decedent to defendant. The real consideration of a deed may always be shown, where its existence or amount is within the issues in any cause. The reality and extent of the consideration in this transaction had a most important bearing upon the question of the mental capacity of the deceased, and whether or not she was unduly influenced. There is no error. In this opinion the other judges concurred.