The record-union., 1895-12-28


of money to his uncle for his mainte-
nance, paid the taxes, etc. I do not
think the evidence bears out this con-
tention. On the contrary, the uncle did
more toward maintaining the nephew
he always made his home with his
uncle, and, while a. number of years age
he worked at the railroad shops at his
| trade, for the last five years he could
not show that he had earned more than
$500 during that time. He tells about
paying street assessments for his uncle
but on cross examination he said he
paid it to the Sheriff, which is highly
improbable, because it is well known
that that office has nothing to do with
street assessments.
This with the manner of the witness
| while on the stand, leads me to place
| but little reliance on his testimony
! Furthermore, a year or more before his
death, the deceased had trouble with
one Heisen about portion of this same
property; then the aid of the other
nephew was solicited; the uncle fur
nished the money necessary in the liti-
cation that ensued, and plaintiff trans
acted the business for him, showing
plainly that the deceased had means OF
his own, and did not have to rely upon
defendant for assistance.
The plaintiff contends that in this
case, having proven the fact that the
deceased was an old man and sick, the
burden is shifted upon the defendant
to show that there was an absence of
undue influence, etc.
In a very able brief he cites a large
number of authorities to maintain his
position. Our own Supreme Court has
indorsed this view in the case of So
beranes vs.. Soberanes (97 Cal 140).
This being the case we must turn to
the facts in this case and ascertain
whether they justify the claim of
plaintiff
DR.. G.. L. Simmons, who attended
him in his last illness, tells US that
the deceased was weak and emaciated,
and while he was approaching a state
of senility still his mind was sharp
and bright" and that he would be in
a condition to resent opportunities.
He advised him to make his final
preparations and was told by him that
he had done so. This shows the mental
condition of the deceased subsequent
tO the execution of the deeds in ques-
ton. Again, we have the testimony of
Mr. Graft a disinterested witness, who
had known him for a long number of
years, who called upon him frequently
during his last illness. He tells US
that deceased repeatedly told him that
he was going to give his property to the
defendant. Witness was at the house
the day that the first deed was eXecut-
ed. He told him that he was going to
do SO, and after the attorney had gone
away, told him that he had done SO.
w. A. Wall another neighbor, testif1es
that he told him that he was going to
give his property to defendant.
j. w. Armstrong, the attorney who
drew the deeds, testifies that deceased
sent for him and requested him to draw
the deeds, and that when he received
his instructions that no one was pres
ent.
He received his instructions from him
as to what he wished to be done with
his property, and pursuant to that wish
he drew the first deed and returned to
the house of the deceased, where alone
in witness presence it was executed.
All of these witnesses concur with
DR.. Simmons that the deceaseds s
mind was strong and that he was fully
aware of what he was doing and go far
to negative the idea of undue influence.
In addition to this, we must bear in
mind that the defendant had for
long time resided with and made his
home with his uncle, and 1t was but
natural that an affection grew up be-
tween them, which would account for
the desire to bestow upon him his prop
erty.
The other nephew visited his uncle at
all times that he desired, had free ac-
cess to him and nothing was laid in
his way from approaching his uncle
as often as he pleased All of these
things to my mind show an absence
of duress or undue influence.
In Goodwin VS.. Goodwin go Cal 560)
the Supreme Court say undue influence
must amount to force and coercion and
must destroy free agency, not the influ-
ence of affection and attachment The
coercion must be by importantly that
he could not resist. The physician
tells us that he had full mental powers
to resist opportunities. His opportuni-
ties were ample to have had such re-
moved haO they existed; his acts snow
that he acted upon his own volition as
he had repeatedly stated that he should
do, backed perhaps by natural inclina-
tions
The proofs show an absence of duress,
and as to the question of fraud, there
is no evidence of such, except as to the
bad faith of the defendant towards
plaintiff. There seems to have been
tacit understanding that they were to
share the old mans property to the
exclusion of the other heirs.
That in the hour of trouble the plant
if was called to the assistance of the
uncle TO assist in saving the property
from the clutches of another; that he
did So and saved it. whereas if he had
relied on the defendant it would have
been lost.