*Laurens, Washington District.*

Heard by Chancellor Desaussure.

*cass*isxnr.

#### Ezekiel Rowland and others, *vs.*Randal Sullivan, and others.

The court will not set aside voluntary deeds to some members cA" the family of the donor, to the exclusion of others, on the allegation of undue influence exerc'sed over great feebleness and imbecility, unless those allegations be made out full)' and clearly by proof. Inequality in the division of a man’s property among his children, is not a ground to set aside the deed; nor does it furnish conclusive presumptions of such imbecility as ought to affect them,

JUNE, 1814.

The principal object of the bill in this case is, to set aside several deeds executed by the, late James Sul-, livan, in the month of April 1809, by which he disposed of several negroes and other property, to several of his children and grand children, and particularly a deed of gift to his grand son, Randal Sullivan.

Two of the complainants, who are daughters of the íate James Sullivan, insist that the division of his property made by these deeds among his children and grandchildren, was so grossly unequal and unjust, that he would never have executed them, if his mind had not been in its dotage, and if advantage had not been taken of Lis extreme infirmity of body and mind.

A great deal of testimony was given on this point, .Several witnesses on the part of the complainants, deposed that they knew James Sullivan well; and that they did believe him so reduced by ago and infirmity, that he was not competent to the full exercise of his faculties, and to dispose of his property with that sound judgment, which was *proper;*and the witnesses believed him to be easily influenced by any person, in whom he bad confidence, to do whatever was required of him, One of the witnesses thought his weakness amounted to childishness ; and several of them deposed that one of the .subscribing witnesses had expressed a similar opinion of bun, in relation to his conduct about a _spring of wa» ..tc,r, wluc.htlicclti.inan had.

*519On the otlicr hand, several witnesses on the part of the defendant swore, that they had known James Sullivan many years, and down to the time of his death. That they thought him perfectly sound in mind, and competent to the full exercise of his faculties, at the time of the execution of the deeds in question.

The three subscribing witnesses to the deeds, gave a very full and particular account of the execution of them. They stated that old Mr. Sullivan had previously requested their attendance for the execution of certain-deeds : that he was perfectly sober, ami collected, ami gave his instructions to one of the subscribing witnesses how to draw the deeds, and to whom the. property should go. No suggestions were made to him by others. - That the deeds were carefully read over to him, and that ho executed them deliberately, and without any sort of influence being exercised over him, that they saw or believed. That he was sound and rational, and knew perfectly what he was about, and repeatedly afterwards expressed his satisfaction that the deeds were executed.

With respect to the inducements to Mr. Sullivan’s giving so much of his property as he did to Randal Sullivan, a number of the witnesses swore, that both Mr. Sullivan and his wife, expressed the greatest satisfaction at the conduct of this grand son; and declared, that he had been a faithful and laborious servant to them, and had done more for them than all their children, and had saved -and made move for them, than all the rest put together j and that he was resolved he should have the most of his property. The witnesses did not consider old Mr. Sul* livan as under an undue influence of Randal Sullivan <* but acting under a sense of gratitude for long services and kindness.

It was also proved, that Mr. James Sullivan, gave to his son Larkin Sullivan, the property contained in the deed to him, because he was his only surviving son, for whom he thought himself especially bound to provide.

With regard to the, complainants, Mr. James Sul-1¿vaa repeatedly declared to several of the witnesses^ *520that be bad done enough for these sons-in-law and woulf! do no more.

This is the substance of the testimony. I do not think it necessary to state it more in detail at present,— Should it be thought necessary to carry up this cause to the Court of Appeals, I will there state the evidence fully in detail.

The rule is, that the complainant must make out the case to entitle himself to relief: the chief burthen of proof' Jics on him. Here are deeds regularly executed. To defeat them the complainant must skew that they were improperly *executed.*It is not enough to shew that a parent has made an unequal, or if you please, an unjust di* -vision efbis poperty among his children. The civil law doctrine of inofficiosum testamentum, does not prevail in our code, even in cases of wills. A man has aright *by*our law, to dispose ofhis property by deed or will as he. pleases. Sonic Incompctency of mind, shewing an inca-.-pac-ity at the moment of executing the deed or will, or some imposition practised on the testator or donor, must ho proved to authorize the courts to exercise the high power of setting aside deeds or wills regularly executed.-

The question then arises, has any thing like this been shewn in the cuse under consideration ? Upon a careful examination of the testimony, I do not think there has been suflicicnt proof to warrant my setting aside the deeds in question. There is certainly some testimony, which if it stood alone, would induce strong doubts of the strength and capacity of Mr. Sullivan’s mind, about the time of the execution of the deeds in question. But the great weight of testimony, and more especially that of the subscribing witnesses, who saw the real state of Mr. Sullivan at the moment of the execution of the deeds, is' in favor of the deeds. That is the critical moment, which must always he regarded in such questions. For even in cases of actual derangement, if it be satisfactorily proved, th.at the deed or will was execnted in a clear lucid interval it shall he valid, if I had any reasonable doubts, I might be induced to send this case to a jiry, because there is a diversity of evidence, and it is *521wholly in the breast of the court to order an issue or not. But Í cannot affect what I do not *feel;*and when X Consider the delays to which issues out of this court are frequently subjected, I am not disposed to direct issues, unless in cases manifestly and imperiously demanding *it;*■Which I do not think this case does: For without imputing any discredit to the witnesses of the complainant, who appear to be worthy of credit, I do not think they have made out such a case as entitles the complainant to the relief prayed for. The defendant’s witnesses,.as numerous, and, to say the least, equally entitled to credit, have spoken with such precision as to the state of Mr. Sullivan’s mind, at the time of the execution of the deeds, that I cannot get rid of the force of their testimony. And if it were at all proper to go into the motives of Mr. Sullivan, (except so far as to furnish a presumption of the 'unsound state of his mind, by shewing the unreasonableness of his preferring some of his descendants, and rejecting others,) I think that the witnesses have stated such facts as justify what he did, and upon which he manifestly acted. Upon the whole, I am well satisfied, that these deeds cannot be shaken, and that they must be allowed to have their legal effect and operation.

With regard to the deed executed by Mrs. Sullivan, after the death of her husband, there is certainly more difficulty, inasmuch as some of the witnesses speak very -strongly.to her imbecility and incapacity. Others, however, and among these the subscribing witnesses, depose, that though weak and infirm, she knew very well what she was about, and executed the deed from choice and with deliberation, and without any sort of apparent undue infiuence. I am bound, therefore, to say that I cannot, upon such testimony, overturn such a deed. I will add too, that the particular object of the bounty of the donor and bis wife, seems to have, had peculiar merit in his long continued and faithful services to them, of which they were eminently sensible. It would be extraordinary to say, that a preference to such an object, was either unjust in itself, or furnished such evidence of imbecility of mind, as ought to shake the deed,

*522It is therefore ordered and decreed, that the com*"’ plainant’s bill be dismissed with costs,

lifiNIty W. Desaussítre.

From this decree an appeal was made, which was heard and fully argued before all the judges in equity.

The Court of appeals unanimously affirmed the 'decree.