In Trustees v. Nisbet, 191 Ga. 821 (8) (14 S.E.2d 64), cited and relied upon by the plaintiff, the court held that "the influence, the exercise of which will invalidate a contract, is such influence as amounts either to deception or to force and coercion which destroys free agency.Summary of this case from Spikes v. Spikes
MARCH 15, 1941. REHEARING DENIED MARCH 28, 1941.
Equitable petition. Before Judge Pomeroy. Fulton superior court. October 4, 1940.
Hirsch, Smith Kilpatrick, D. F. McClatchey, and Lokey Bowden, for plaintiffs in error.
Arnold, Gambrell Arnold, contra.
1. A defense of payment, discharge, and satisfaction may be sustained by proof of circumstances sufficient to justify the inference sought to be drawn therefrom.
2. To a suit seeking to enforce a written contract, an answer alleging that the maker was ill, weak, and mentally deficient, that there existed a confidential relationship between the parties to the contract, which relationship was stated in detail, that there was great mental disparity between them, that there was gross inadequacy of consideration, and that the writing was the result of undue influence practiced upon the maker by the opposite party, is not demurrable on the ground that it contains mere conclusions.
3. Such a defense as that just indicated is not defective for lack of an allegation that the maker was suffering from an entire loss of understanding.
4. In a suit on a written contract, an answer which sets up the invalidity of the paper, based on the undue influence of the party taking the benefit thereunder, the great disparity in mental capacity between him and the maker, the confidential relation existing between them, and gross inadequacy of consideration, contains allegations which if true are sufficient to justify avoidance of the instrument.
5. The fact that the defendant (one of his defenses being that the instrument sued upon was obtained by undue influence) admits a prima facie case and assumes the burden of proof, does not require him to bring direct proof of undue influence, when he submits to the jury facts from which undue influence will be inferred.
6. In a suit to enforce a written contract a presumption of undue influence arises, so as to cast on the party seeking a benefit thereunder the burden of showing its absence, in cases where the parties thereto sustained a confidential relationship, the grantor being of weak mentality, and the party reaping the benefit occupying a dominant position.
7. Great delay in asserting a claim is a circumstance to be considered by the jury with other circumstances, in support of a defense that such claim has been paid and discharged, although the same may be asserted within the period of the statute of limitations.
8. The influence, the exercise of which will invalidate a contract, is such influence as amounts either to deception or to force and coercion which destroys free agency.
9. In a suit by a creditor of a testator against legatees, seeking to subject particular assets to payment of her claim, it is not erroneous to instruct the jury that if they find for the plaintiff they should also find interest on the amount at seven per cent. per annum from the maturity of the obligation sued on.
10. Ground 30 of the motion is expressly abandoned, and hence will not be considered.
11. That the court charged the jury that before the instrument here involved can be satisfied it must either be paid or it must be shown that there was a meeting of minds, or an understanding between "the parties" that some payment or some act of "the parties" constituted a satisfaction. could hardly have misled the jury into believing that "the parties" to the case was meant, rather than the parties to the instrument.
12. When there is no direct evidence of undue influence, but its existence is to be inferred from certain proved facts, it is error to charge the jury that they would not be authorized to find influence to be undue influence unless the party seeking to procure a written contract was so persistent in his efforts as rendered the opposite party powerless to refuse to sign. and error in such a case to charge the jury that influence which consists of appeals or requests, or entreaties, or flattery, or persuasion. or solicitation, or even importunity, is legitimate and does not make an instrument void, and error in such a case to charge the jury that merely to raise a bare suspicion of undue influence is not sufficient.
13. Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, standing alone, may justify equity in setting aside a sale or other contract. Code, § 37-710; Pye v. Pye, 133 Ga. 246 ( 65 S.E. 424); McDonald v. McDonald, 180 Ga. 771 (3) ( 180 S.E. 815). The principle here stated should have been given in charge to the jury, and it was error to charge the contrary.
Nos. 13556, 13558, MARCH 15, 1941. REHEARING DENIED MARCH 28, 1941.
This case was before this court at the January term, 1940, and is reported in 189 Ga. 807 ( 7 S.E.2d 737). It was held that the court did not err in overruling the demurrers to the petition. Upon the trial before a jury the defendants offered the following amendments to their answers, they being the same for the two sets of defendants, the Trustees of Jesse Parker Williams Hospital, a corporation, and W. E. Mitchell, C. F. Palmer, Clark Howell, and Eugene Harrington, as trustees under the will of Cora B. Williams:
"1. These defendants by this amendment admit a prima facie case, to wit: (1) That the deceased, Mrs. Cora B. Williams, executed and delivered the paper a copy of which is set out as Exhibit `A' of the suit; (2) that John Lord Nisbet assigned to the plaintiff herein his claims under said paper; (3) that all of the stock of the Georgia, Florida and Alabama Railway Company, owned by the estate of Mrs. Cora B. Williams, deceased, was sold at the time and in the manner alleged in the petition herein; (4) that John Lord Nisbet was appointed and qualified as executor of the estate of Mrs. Cora B. Williams, and was afterwards discharged as executor; and (5) that the said executor turned over to the defendants assets of the estate of the estate of Mrs. Cora B. Williams in excess of the plaintiff's claim, and that the defendant's still have assets of the estate in excess of her claim.
"2. Having thus admitted a prima facie case, defendants plead the following affirmative defenses: (1) that the deceased Mrs. Cora B. Williams did not at the time of the execution of the said paper set out as Exhibit `A' possess sufficient mental capacity to make a valid or binding contract or agreement, as more fully set out in the original answer of these defendants; (2) that the said alleged contract is void and unenforceable, for the further reason that it was procured by the undue influence of John Lord Nisbet, as set out in the original answer of these defendants in this case, and that there was great disparity in mental capacity between the said Mrs. Cora B. Williams and the said John Lord Nisbet, as more fully set out in the original answer, and gross inadequacy of consideration; (3) that the claims of the plaintiff under said paper set out as Exhibit `A' have been heretofore satisfied and discharged, by reason of the things hereinafter set out in this amendment.
"3. On information and belief defendants now aver that whatever claims, if any, plaintiff herein may have had by reason of the matters alleged in her suit (the defendant not, however, admitting the validity of the instrument sued on at any time) have been paid, satisfied and discharged.
"Defendants show that said payment, satisfaction and discharge of said claims is shown by the following:
"(a) The great lapse of time which has occurred since the payment would have been due under said alleged contract, during all of which time the estate of Mrs. Cora B. Williams was thoroughly solvent, and during most of which time it was in the hands of plaintiff's husband as executor, who had in his possession ample funds with which to discharge said claim had it been a valid claim.
"(b) During all of the time since the residue of the estate was turned over to the trustees, there have been ample funds with which to satisfy said claim had a legal and enforceable claim been in existence.
"(c) During all of the time that the estate was in the possession of the said Nisbet, and during all of the time that the residue has been in the possession of the trustees, the plaintiff has made no demand of any kind or character, nor had she presented any claim or requested any payment thereon.
"(d) Plaintiff has never listed the said alleged chose in action in any tax returns which she has made, although she has made tax returns purporting to list the property which she possessed and which was subject to taxation.
"(e) During all of said time the plaintiff has been a person of small means, except for one large payment made to her, to be hereinafter more fully set out.
"(f) At the time the first payment would have been due under the said alleged contract, if the same were valid, the plaintiff received a large sum of money, which in law and in equity belonged to the estate of Mrs. Cora B. Williams, to wit, the sum of $73,920.00, to which the plaintiff was in no wise entitled under any possible theory unless it were paid to her in satisfaction of the said alleged claim. The details of this payment are more fully set out hereinafter in this amendment.
"(g) The said Nisbet had transferred the said alleged claim to the plaintiff herein just prior to the time he caused the said large payment to be made to her.
"From all of which the defendants say that it appears whatever rights or claims the plaintiff may at any time have had under said alleged contract have been paid, satisfied and discharged.
"4. The details of the large payment to the plaintiff heretofore referred to are as follows:
"5. In 1927 one Fred L. Fuller, an investment broker, of Cleveland, Ohio, undertook to negotiate the sale of the stock of the Georgia, Florida and Alabama Railway Company, held by the estate of Mrs. Cora B. Williams, to the Seaboard Air-Line Railway Company. At that time John Lord Nisbet was the executor of the estate of Mrs. Cora B. Williams and was the individual who actually contracted for the sale of said stock, he having the power of sale over the assets of the estate as shown in the will, a copy of which is attached to the plaintiff's original petition.
"6. At that time the estate of Mrs. Cora B. Williams owned 26,802 shares of the capital stock of the Georgia, Florida and Alabama Railway Company out of a total of 26,850 shares, the remaining 48 shares being scattered in small blocks, including therein certificate No. 127 for 12 shares of stock issued and outstanding in the name of the plaintiff herein.
"7. When Fuller and his associates undertook to negotiate with the executor of the Williams estate, to wit, John Lord Nisbet, for the sale of the stock of the Williams estate held by him as executor, the said Nisbet said to them that he desired that if the stock of the estate was sold they must also purchase from Mrs. Nisbet the 12 shares of stock standing in her name, at a price out of all proportion to the price being paid for other stock. The following agreement was reached between the said Nisbet and the said Fuller and his associates, to wit: Fuller and his associates were to negotiate a sale of the stock of the Georgia, Florida and Alabama Railway Company held by Nisbet as executor of Mrs. Williams' estate, at a price of $90.00 a share, and at the same time Fuller and his associates were to negotiate a sale of the 12 shares of the same kind of stock held by plaintiff herein, individually, for a price of $75,000, or $6250.00 a share.
"8. The aforesaid agreement thus reached was carried out, and the said Nisbet sold through Fuller and his associates all of the stock held by him as executor of Mrs. Williams' estate for $90.00 a share, and at the same time sold 12 shares of stock outstanding in the plaintiff's name, for $75,000.00. This was closed and payment made in January, 1928.
"9. Defendants show that under said circumstances, as herein set out, the amount paid for said 12 shares of stock in excess of the reasonable value thereof of $90.00 a share was in fact a payment to the wife of the executor of the estate to induce the sale of the stock held by him as executor, and that said profit in fact and in law was a profit to which the estate of Mrs. Cora B. Williams was equitably entitled.
"10. Defendants show that in December, 1927, and in contemplation of the closing of the sale of the stock of the Georgia, Florida and Alabama Railway Company, the said Nisbet had transferred the claim on which suit is brought to his wife, and the next month caused this large payment to be made to her of funds which in law and in equity belonged to the estate of Mrs. Cora B. Williams; and the defendant shows that these circumstances, together with the other circumstances set out in this amendment, should be treated as showing that the claim on which suit is now brought was paid, satisfied, and discharged.
"11. Defendants strike from the 13th paragraph of their original answer the following words: `but admit that no amount has ever been paid either to the plaintiff or to J. L. Nisbet upon the alleged obligation.' Defendants strike the last sentence in said 13th paragraph." And the additional amendment, to wit:
"1. Defendants add to paragraph 3(a) of their original answer the following:
"The said John Lord Nisbet also professed great love and affection for the said Mrs. Cora B. Williams, addressed her as `mother,' and had, by the time the paper sued on in this case was signed by her, complete control and domination over her. The said John Lord Nisbet prepared the paper sued on in this case, and carried it with him to Lanark, Florida, when he caused the same to be signed by Mrs. Williams. On information and belief the defendants say that no one was actually in the room with Mrs. Williams except the said John Lord Nisbet at the time the paper was signed. Defendants say that at said time, through the influence he had acquired over Mrs. Williams in the manner aforesaid, and due to her weakened mental and physical condition, and her inability to exercise a will of her own, the said John Lord Nisbet imposed his own will upon the said Mrs. Cora B. Williams, and through undue influence, as herein before set out, caused her to sign the same. Defendants say that the signing of the same by the said Mrs. Williams was in no way the result of her own free will and determination, but was due to her mental and physical weakness and the domination and undue influence of the said John Lord Nisbet."
The original answer embraced the following statements:
"3. Paragraph 3 is denied as alleged. It is not denied that Mrs. Williams physically signed the paper, a copy of which is attached to the petition as Exhibit `A'. It is denied, however, that said paper constituted a binding legal obligation on her part. These defendants say that the said paper was wholly without consideration and void.
"3-a. Defendants further say that if the said paper had otherwise been valid, it would nevertheless be void and unenforceable, because at said time Mrs. Williams' mental and physical capacity were greatly impaired and weakened, due to the fact that she was ill, suffering with a cancer from which she finally died, and confined to her bed practically all the time. John Lord Nisbet, to whom said paper was addressed, had acquired an excessive and undue influence over the said Mrs. Williams. He was attending to her business for her, had all of her business affairs in his hands, was seeing her constantly, purporting to do various things for her, and assuring her of her great dependence on him; and because of her weakened physical and mental condition he had acquired and exercised undue influence over her, as a result of all of which her signature was obtained.
"3-b. The paper is further void for the additional reason that there was gross inadequacy of consideration (the defendants not, however, admitting that there was any legal consideration) coupled with great disparity in the mental capacity of the parties at said time, as heretofore alleged."
The plaintiff filed demurrers to the amendments, and to the answer as amended. Her demurrer filed on May 20, 1940, was as follows:
"1. In subsection (2) of paragraph 2 of the amended answer the following appears: `that the said alleged contract is void and unenforceable, for the reason that it was procured by the undue influence of John Lord Nisbet, as set out in the original answer of these defendants in this case, and that there was great disparity in mental capacity between the said Mrs. Cora B. Williams and the said John Lord Nisbet, as more fully set out in the original answer, and gross inadequacy of consideration.' Plaintiff moves to strike the foregoing averments, and says that there is only a conclusion of undue influence, and the same does not set forth any acts or facts from which undue influence could be inferred. Further, that great mental disparity between Mrs. Cora B. Williams and John Lord Nisbet is no ground to set aside the instrument in question, and that the law does not require equality of intellect between the parties to instruments such as this. Further, plaintiff says that `gross inadequacy of consideration' does not suffice to set aside said instrument, and that whether there be any consideration, or a great or small consideration, is not to be considered, because under the decision of the Supreme Court of Georgia, rendered in this case, construing this instrument, it has been adjudicated that no consideration of any kind is necessary, and that the instrument is valid because alone of the manner of its execution.
"2. Subsection (3) of paragraph 2 reads as follows: `that the claims of the plaintiff under said paper set out as exhibit `A' have been heretofore satisfied and discharged by reason of the things hereinafter set out in this amendment.' Plaintiff demurs to this language, because in connection with `the things hereinafter set out in this amendment' no facts are set out which in any way show any satisfaction and discharge of the instrument set out as exhibit `A' to the petition.
"3. Plaintiff demurs to all of paragraph 3 of the amended answer, including all the subparagraphs, and says that the same sets forth no facts which show that the claim has been paid, satisfied, and discharged. The matters pleaded in said paragraph have been previously held by this court and the Supreme Court of Georgia to be insufficient to constitute a defense to the action.
"4. It is averred in the amendment that the payment, satisfaction and discharge of the claims under exhibit `A' are shown in subparagraph (a) of paragraph 3 by the following: `The great lapse of time which has occurred since the payment would have been due under said alleged contract, during all of which time the estate of Mrs. Cora B. Williams was thoroughly solvent, and during most of which time it was in the hands of plaintiff's husband as executor, who had in his possession ample funds with which to discharge said claim had it been a valid claim.' Plaintiff demurs to said allegations, on the ground that even if they were true, which is denied, they would not constitute payment, satisfaction, and discharge of said claim, nor a bar or defense to said action. The fact that the executor had in his hands sufficient funds to pay the claim does not require the conclusion that the claim was paid; and hence the allegation, even if true, does not constitute a defense. This court in the ruling on demurrer has previously held that the failure of the plaintiff to present the claim for payment under the circumstances recited is not sufficient to bar the plaintiff from recovery on the ground of laches, and this ruling was affirmed by the Supreme Court of Georgia."
In paragraphs 5, 6, 7, 8, and 9 of plaintiff's demurrer she contends that the allegations contained in subparagraphs (c), (d), (e), (f), and (g) of paragraph 3 of defendants' amendment, and all allegations in paragraphs 4, 5, 6, 7, 8, 9 and 10 thereof, even if true, would not constitute payment, satisfaction, and discharge; and that there is no allegation that the parties entered into any agreement that the payment for the stock as alleged was in settlement of plaintiff's claim, or had any connection with it.
On May 22, 1940, the plaintiff filed her demurrer to the amendment of the defendants' answer, on the ground that alleged undue influence, even if the facts pleaded are taken as true, is not sufficient to render the instrument void on that ground; that the amendment, when taken in connection with the allegations in the original answer with reference to alleged undue influence, does not make out a defense of undue influence, and moves to strike the same; and she renews her demurrer to the answer as amended.
On May 23, 1940, the plaintiff filed another demurrer to the answer as amended, as follows:
"1. She demurs to all of the allegations of the answer as amended, with reference to the alleged insufficiency of the mental capacity of Mrs. Williams to make a valid contract, and moves to strike said language, for the reason that it is not alleged that there was not [?] an entire loss of the capacity of understanding on the part of Mrs. Williams. In the absence of an allegation that Mrs. Williams was without capacity to understand her acts, the allegation that she lacked sufficient mental capacity to make a valid contract or agreement is a mere conclusion without sufficient allegations of fact to support it, and is not sufficient as a defense to this action. As alleged, these allegations with reference to alleged lack of mental capacity on the part of Mrs. Williams, when taken alone or in connection with any other allegations in the answer, are not sufficient to constitute a defense to plaintiff's action.
"2. Plaintiff demurs to all allegations in the answer as amended, with reference to alleged duress on the part of Nisbet in connection with the execution of the contract, on the ground that the allegations are mere conclusions of the pleader, without sufficient allegations of fact to support them, the allegations of kindness and the use of terms of affection by Nisbet toward Mrs. Williams not being sufficient allegations to constitute duress, and, whether taken alone or in connection with any other allegations of the answer, are not sufficient to constitute a defense to plaintiff's action.
"3. Plaintiff demurs to the allegations that the claims of plaintiff under said paper have been satisfied, for the reason that it is not set out either in said allegation or anywhere else in the answer when the claim of the plaintiff was satisfied, nor how, or in what manner it was satisfied; no date is given; no amount of money paid or other consideration in satisfaction of the claim is stated, and it is not alleged when nor how the parties came to an understanding in settlement. Before the defense of settlement of an obligation can be effectively set up as a defense, it must be shown that the parties at interest came together or had a meeting of minds on the subject and a contract of settlement, when that settlement occurred, and the terms of the settlement in satisfaction of the claim. None of these are set out in defendants' answer as amended. Defendants attempt to plead evidence of an incompletely set out and fatally defective alleged defense. The defense is the alleged settlement, and before it can stand in the pleading as a defense it must be set up in detail as to terms, time of agreement, and place of agreement.
"4. The defendants having admitted a prima facie case, and not having shown any affirmative defense sufficient to constitute a valid defense to this case, plaintiff demurs to all of the defense except the admissions of the defendants, and moves to strike the defendants' answer as amended. Plaintiff still insists on all grounds of previous demurrers filed to the defendants' answer, their amended answers or either of them."
The judge overruled the demurrers, and the plaintiff, Mrs. Nisbet, in a cross-bill of exceptions, assigns error. On the trial the jury rendered a verdict for the plaintiff in the sum sued for. The defendants moved for a new trial on the general grounds, and on special grounds based on certain instructions by the court to the jury, and on refusals to charge. The instructions complained of are as follows, according to the numbered grounds of the motion :
4. "I instruct you that the plaintiff had the right to bring this suit within twenty years from the time the payments fell due, since this instrument is what is known under the law as an instrument under seal. This is what is known as an entire instrument, with the first of the ten agreed annual payments falling due in January, 1928, and the last one in January, 1938. You are instructed that this petition which was filed in 1939 was within the law of limitations, and the mere fact alone that this suit was not filed at an earlier date, in itself, is no defense. When the law gives a person the right of a definite time within which to bring an action, the party has the right to wait as long as he or she may desire, within that period, to bring the suit; and if the action is brought within the legal time, as this action was, it is no defense, standing alone and by itself, that the action should have been brought sooner. You are instructed that it is no defense, in itself and standing alone, in this case that the plaintiff did not file a claim against the estate before the executor completed the disbursement of the estate's assets. The court instructs you that the returns by J. L. Nisbet as executor to the court of ordinary, reciting that all the debts of the estate had been paid, and delivery of the property to the trustees, would not, of itself and standing alone, bar the plaintiff in this case from a recovery of the amount sued for."
5. "The defendants set out that John Lord Nisbet became an officer of the defendant corporation, and as such officer actively participated in the management of the property by said corporation, and at no time in his lifetime did he ever suggest that either he or his wife, or any one claiming under him, had any claim against the said estate. I charge you that such allegations, even if established, do not, standing alone, constitute a defense to this suit."
6. "I charge you that even if John Lord Nisbet was executor of the estate of Mrs. Williams and had money in his hands, and yet failed to present the claim either on behalf of himself or his wife, this would not in itself, standing alone, be a valid defense to this suit."
7. "I instruct you that you are not to consider as against this claim of the plaintiff any amounts which Mr. Nisbet may have received as salary or compensation. This has no bearing on any issue made in this case."
8. "To constitute undue influence it is not necessarily required that there should exist moral turpitude or even an improper motive; but if a person from the best of motives, having obtained a dominant influence over the mind of the grantor, thereby induces her to make a contract which she would not have made otherwise, exercising the influence to the extent that the mind and will of the grantor is effaced or supplanted in the transaction, so that the instrument, while professing to be the act and deed of the grantor, in fact and in truth only expresses the will and mind of the other person, — such an instrument, if those facts are proven, if you find them to have been proven, would constitute undue influence and void such instrument."
9. "I instruct you that if you find from the proof that Mrs. Cora B. Williams at the time she executed the contract on which this suit is brought, because of a weak mind, and that John Lord Nisbet, the beneficiary of the contract, stood in a confidential relation to her and exercised great influence over her about this matter, then the burden of proof would shift to the plaintiff in this case to prove that the contract was not the result of the exercise of undue influence, and in the absence of such proof on the part of the plaintiff you would be authorized to find, but not required, that the contract was not enforceable."
10. "I instruct you that undue influence by a person in obtaining the execution of a contract from another does not mean every kind of influence. There may be a legal or proper influence. The influence which will invalidate a contract is such fraudulent practices upon the maker's fears, affections, and sympathies, as entirely substitutes the will of another for the wishes of the maker of the instrument."
11. "You would not be authorized to find any undue influence by Nisbet unless you believe that he was so persistent in his efforts to procure this instrument from Mrs. Williams as to cause her to sign an instrument which she was powerless to refuse to sign."
12. "Influence which consists of appeals, or requests, or entreaties, or flattery, or persuasion, or solicitation, or even importunity, is legitimate and does not make an instrument void."
13. "Merely to raise a bare suspicion of undue influence is not sufficient."
14. "The evidence must be sufficient to show the fact of undue influence and that it was sufficient to substitute the will of Nisbet for the will of Mrs. Williams."
15. "You are instructed that merely to show that Nisbet had the opportunity to exercise influence raises no presumption in the absence of evidence that he did exercise such influence over the decedent in reference to this instrument."
16. "I instruct you that undue influence by a person in obtaining the execution of a contract from another does not mean every kind of influence. There may be a legal or proper influence. The influence which will invalidate a contract is such fraudulent practices upon the maker's fears, affections and sympathies as entirely substitute the will of another for the wishes of the maker of the instrument. It must amount to moral coercion and must destroy the free agency of the maker of the instrument or it will not be considered undue influence. As to undue influence by a person standing in a confidential relation to another, it is not the law that a person is forbidden to exercise any kind of proper or legal influence on another to obtain a benefit to himself. You would not be authorized to find any undue influence by Nisbet unless you believe that he was so persistent in his efforts to procure this instrument from Mrs. Williams as to cause her to sign an instrument which she was powerless to refuse to sign. Influence which consists of appeals, or requests, or entreaties, or flattery, or persuasion, or solicitation, or even importunity, is legitimate and does not make an instrument void. Influence is undue influence only when it is extended to such a degree as to override the discretion and destroy the free agency of the maker of the instrument. Persuasion or intercession, — honest persuasion or intercession to procure the instrument would not amount to undue influence. Such influence as results from kindness or attention or affection is not considered by the law as undue influence. The law of Georgia is that to request, or even to importune one to make the person making the request the beneficiary of an instrument is not necessarily the exercise of undue influence. Merely to raise a bare suspicion of undue influence is not sufficient. The evidence must be sufficient to show the fact of undue influence and that it was sufficient to substitute the will of Nisbet for the will of Mrs. Williams. You are instructed that merely to show that Nisbet had the opportunity to exercise influence raises no presumption, in the absence of evidence, that he did exercise such influence over the decedent in reference to this instrument. The law of this State is that every person is presumed to be sane and capable of incurring a valid obligation, if such person is twenty-one years of age. It is admitted in this case that Mrs. Williams executed and delivered the paper, and that Mr. Nisbet assigned it to the plaintiff, his wife. Under this state of facts the law presumes not only that Mrs. Williams knew what the paper contained, but also the law presumes that she was sane and had sufficient mind to incur the obligation. I instruct you that it a contract will not be set aside because of eccentricity or weakness of intellect, standing alone. I instruct you that it does not require a high degree of mental capacity to make a gift or a contract of gift under seal. You are instructed that because a person is in bad health there is no presumption of any mental incapacity to make a contract, unless the same is shown by the evidence. Weakness of mind which does not amount to imbecility is not sufficient to set aside a contract in the absence of fraud or undue influence. It is not sufficient in order to set aside a contract to show merely that the person who executed the instrument is not as strong-minded as the person to whom the obligation is made. I instruct you that there is no contention in this case that Mrs. Williams was entirely without mental capacity to make a contract, and the contract could not be set aside in this case on that ground."
17. "With reference to this defense that there has been a satisfaction of the claim of the plaintiff on the instrument in question, I charge you in that connection that before the instrument can be satisfied it must either be paid or it must be shown that there was a meeting of minds or an understanding between the parties that some payment or some act of the parties constituted a satisfaction."
18. "The statute of limitation, failure or inadequacy of consideration, want of mental capacity, mental disparity, confidential relations, standing alone and as separate defenses — the defendant can not prevail upon any such as independent and specific defenses, but evidence relating to these questions has been admitted, only to illustrate, if it does, the real defenses, to wit: satisfaction, discharge or payment, or undue influence."
19. "Now, gentlemen, if you should find for the plaintiff, and which could only be done if you find against both of the contentions of the defendants, the form of your verdict would be: We the jury find for the plaintiff, Mrs. Idella Holloway Nisbet, in the sum of $210,000.00, together with seven per cent. Interest upon the several installments from the respective maturity dates of each, to be recovered and paid only out of the trust funds. If your verdict should be for the plaintiff, that would be the form."
Grounds 20 to 28, inclusive, complain that the court in his recharge to the jury repeated certain of the charges above quoted. Ground 35 complains that the court erred in giving the following charge: "I instruct you further that the defendants' answer contains the following language: `The paper is further void for the additional reason that there was gross inadequacy of consideration, coupled with great disparity in the mental capacity of the parties at said time as heretofore alleged.' I instruct you that inadequacy of consideration and disparity of mental capacity is not, in itself and standing alone, a defense, but that these facts, if true, may be considered by you in connection with the defense of undue influence and mental weakness." Ground 29 complains that the court refused, upon written request therefor, to give to the jury the following charge: "The court charges you that if you find from the proof that Mrs. Cora B. Williams at the time she executed the contract on which suit is brought was of weak mind, and that John Lord Nisbet, the beneficiary of the contract, stood in a confidential relation to her and possessed great influence over her, then the burden of proof would shift to the plaintiff in this case to prove that the contract was not the result of the exercise of undue influence, and in the absence of such proof on the part of the plaintiff you would be authorized to find that the contract was not enforceable." Grounds 31, 32 and 36 complain because the court refused to charge the jury as therein requested, as follows:
(31) "Now, look to the evidence: (a) Was $75,000 received by the plaintiff in this case? (b) Did the $75,000 actually represent the price to be paid for fourteen shares of G. F. A. stock? (c) And if not, was the price far beyond any reasonable value of these shares and any other consideration? (d) Was the money paid to plaintiff in pursuance of a contract entered into for her by her husband, J. L. Nisbet, with one F. L. Fuller? (e) If so, was such a contract made as part of other negotiations looking to the sale by Nisbet as executor of property of the estate of Cora B. Williams, namely, its shares of stock in the same railway company? (f) Was the contracts, if there was one, for the sale of the fourteen shares of a character calculated to influence the conduct of Nisbet as executor in negotiating the sale of this property of the estate? If from the evidence submitted you believe that, (a) $75,000 was received by plaintiff, Mrs. Idella H. Nisbet; (b) in connection with its payment fourteen shares of G. F. A. Ry. stock was delivered by her, but the sum paid was far in excess of any reasonable value of the stock and any other additional consideration, if there was such; (c) the $75,000 was paid to Mrs. Nisbet in pursuance of a contract entered into between her husband, J. L. Nisbet, and one F. L. Fuller; (d) such contract was made as part of other negotiations for a contract between F. L. Fuller and J. L. Nisbet as executor of the estate of Mrs. Cora B. Williams contemplating the sale by the latter to or through Fuller of property of the estate, namely, a block of the estate's stock in the same company; (e) the contract for the $75,000, if there was one, was of a character calculated to influence the judgment and conduct of Nisbet as executor in negotiating the sale of the estate's stock, — if you believe all these things, from the evidence, then that portion of the $75,000, in excess of the reasonable value of whatever was received in exchange therefor, would constitute an unlawful payment, and though actually received by the plaintiff, would have been recoverable by the estate of Mrs. Cora B. Williams, no matter if the estate received a fair price for its stock."
32. "And if you find that these are the facts of the transaction, then it would also follow as a matter of law that Nisbet as executor, in making such a contract for his wife, had forfeited any commissions he might have earned as executor on consummating the sale of the estate's stock."
36. "I charge you that if you believe there was great inadequacy of consideration, joined with great disparity of mental ability between the parties to the contract here sued on, you would be justified in finding that the contract was not enforceable, and hence in finding a verdict for the defendants."
Grounds 33 and 34 complain because the court failed to charge the jury in substance to the following effect: (33) "If a preponderance of the evidence shows that John Lord Nisbet was a trusted and confidential agent of Mrs. Cora B. Williams, and that at the time the paper sued on was executed she was greatly afflicted in body and mind from disease and was greatly under the influence of said Nisbet, and that under these circumstances Mr. Nisbet obtained from Mrs. Williams her signature to the paper sued on, then it should be made to appear to your satisfaction that the transaction was free from all undue influence by Mr. Nisbet. In the absence of evidence satisfying you that the transaction was free from undue influence you would be authorized to bring in a verdict in favor of defendants on their plea of undue influence." (34) "I have heretofore charged you as to the burden of proof resting on the defendants, with respect to their several pleas. I charge you now, however, in regard to their plea of undue influence, that, if from the evidence submitted thereon, it appears to your satisfaction that there was great disparity of mental ability between J. L. Nisbet, the beneficiary under the paper sued on, and Mrs. C. B. Williams, and she reposed great confidence and trust in him and was greatly under his influence; if it further appears that he prepared and obtained the execution of the paper sued on, a presumption would arise that same was obtained by him by undue influence over Mrs. Williams. The burden of proof would then shift to the plaintiff to show that the agreement sued on was obtained without the exercise of any undue influence, and if this burden is not carried by the plaintiff to your satisfaction you will be authorized to find in favor of defendants on the plea referred to."
Ground 37 complains that the court nowhere charged that if the jury believed Mrs. Williams was of weak mind and Nisbet stood in a confidential relation to her and had great influence over her and was the beneficiary of the contract sued on, then the jury would be authorized but not required to presume that the paper was the result of undue influence.
The motion was overruled, and the defendants excepted.
1. We deal first with the cross-bill of exceptions. It is insisted that the answers as amended make no issuable defense on the question of payment, discharge and satisfaction. Such a defense may be sustained by proof of circumstances, provided they be of such a nature as to justify the inference sought to be drawn therefrom. While perhaps one single circumstance would not be sufficient, a chain of them, made up of connected links, might. On the authority of Milledge v. Gardner, 33 Ga. 397, and Norton v. Aiken, 134 Ga. 21 ( 67 S.E. 425), the court correctly ruled that the amended answer set forth circumstances which could properly be considered by the jury on the question of payment, discharge, and satisfaction. See Fletcher v. Young, 10 Ga. App. 183 ( 73 S.E. 38); Tumlin v. Guest, 31 Ga. App. 250 ( 120 S.E. 442); George v. McCurdy, 42 Ga. App. 614 ( 157 S.E. 219); Hurt v. Stewart, 49 Ga. App. 251 ( 174 S.E. 924).
2. Another ground of attack was that the answers as amended, in so far as they related to the charge of undue influence, consisted of conclusions unsupported by allegations of sufficient facts. The decisions in Field v. Brantley, 139 Ga. 437 ( 77 S.E. 559), and Peavey v. Crawford, 182 Ga. 782 ( 187 S.E. 13), are relied on. In the first of these two cases it was in the opinion pointed out that there was not even a distinct allegation that the will was obtained by undue influence, and no facts alleged constituting undue influence. In the latter case it was in the opinion said that the caveat amounted to nothing more than to allege that two daughters exerted constant and undue importunities, and thus forced the mother to sign the will in order to obtain quiet. The court declared that to importune one to make one the beneficiary is not necessarily the existence of undue influence. Both decisions recognize, however, the doctrine that when undue influence is charged, good pleading requires an averment of the facts relied on to sustain it. In the instant case the pleadings alleged that Mrs. Williams was ill, weak, and mentally deficient; that there was great mental disparity between her and Nisbet; that there existed a confidential relationship between them; that there was gross inadequacy of consideration; and that John Lord Nisbet, to whom said paper was addressed, had acquired an excessive and undue influence over the said Mrs. Williams. He was attending to her business for her; had all of her business affairs in his hands; was seeing her constantly, purporting to do various things for her, and assuring her of her great dependence on him; and because of her weakened physical and mental condition he had acquired and exercised undue influence over her, as a result of all of which her signature was obtained. The answers as amended were not subject to the criticism herein referred to.
3. The answers as amended were demurred to on the further ground that they presented no issuable defense upon the question of Mrs. Williams' mental capacity to make a contract; the position being that, in the absence of an allegation that Mrs. Williams was without capacity to understand her acts, the allegation that she lacked sufficient mental capacity to make a valid contract or agreement is a mere conclusion. When it is sought to avoid a contract on grounds such as herein before set forth, it is not necessary to allege an entire loss of capacity of understanding. The answer does allege that her mental and physical capacity were greatly impaired and weakened, and the complaint that the allegations with reference thereto are mere conclusions is without merit. Compare Morris v. Mobley, 171 Ga. 224 ( 155 S.E. 8).
4. The fourth ground of attack was that the answers as amended made no issuable defense upon the question of the invalidity of the paper, due to undue influence of Nisbet, the great disparity in mental capacity between Nisbet and Mrs. Williams, the confidential relation existing between them, and the gross inadequacy of consideration. The allegations of that part of the answers as amended set forth facts which if established would be sufficient to justify the avoidance of the instrument. Maddox v. Simmons, 31 Ga. 512, 530; Frizzell v. Reed, 77 Ga. 724; Stanley, 179 Ga. 135 ( 175 S.E. 496); and other authorities cited and discussed in division 6 of this opinion.
5. While the evidence on the subject was conflicting, there was direct evidence from which the jury could have concluded that at the time of the execution of the paper Mrs. Williams' mind was in a weakened condition, that she had every confidence in Nisbet, who was in charge of her business affairs, and that she largely relied on and trusted him. There was no direct evidence of undue influence. The defendants admitted a prima facie case, and assumed the burden. Did this require them to bring before the jury affirmative proof of undue influence? Or, if the jury were satisfied from the testimony that the elements next above mentioned were present, coupled with the fact that the subject-matter of the paper was a large gratuity, did a presumption arise that there was undue influence, and in that case does the burden rest upon Mrs. Nisbet to bring forward proof to show that the instrument was free from improper influence? If it be the law that when such a relationship of dominance of one party exists, it raises a presumption of undue influence, and throws upon the party asserting rights under the instrument the burden of establishing the fairness of the transaction, such rule is not inapplicable here on account of the fact that the defendants admitted a prima facie case and assumed the burden. The burden assumed by the defendants was to produce such evidence as would prima facie establish their defense. When they do that, the burden shifts, and at that point it becomes the burden of their adversary; and this is true notwithstanding withstanding the admission in their pleadings of a prima facie case and the admission in their pleadings of a prima facie case and their original assumption of the burden. If they have introduced evidence of circumstances which under the law causes a presumption of undue influence to arise, the burden of going forward with the evidence shifted to the plaintiff. For an admirable discussion as to the law of this burden, see Hawkins v. Davie, 136 Ga. 550 ( 71 S.E. 873); Strickland v. Davis. 184 Ga. 76, 80 ( 190 S.E. 586).
6. The rule that a presumption of undue influence arises, so as to cast on the grantee the burden of showing its absence, in those cases where the parties sustained a confidential relationship, the grantor being of weak mentality, and the party reaping the benefit occupying a dominant position, has been often recognized by the courts and applied to various relationships, including that of confidential adviser. In Woodbury v. Woodbury, 141 Mass. 329 ( 5 N.E. 275, 55 Am. R. 479), where an intestate, before her death, gave to the defendant certain sums of money, and the evidence tended to show that before and at the time of the gift the intestate was of a feeble mental condition and of advanced age, that the defendant, who was not a relative of the intestate, was her physician, friend, adviser, judicial agent, and managed her affairs, having a considerable influence over her, it was ruled that the evidence raised such a presumption of fact that, if believed by the jury, it would justify a finding that the defendant in some form solicited the gift, and used undue influence to obtain it. In Eldridge v. May, 129 Maine, 112 ( 150 A. 378), it was held that when relations of reciprocal confidence exist between brothers and sisters, and the burden on one of proving fairness of beneficial transaction is not sustained, equity sets the transaction aside. In the opinion many authorities are cited to sustain the statement that whenever a fiduciary or confidential relation exists between the parties to a deed, gift, contract or the like, the law implies a condition of superiority held by one of the parties over the other, so that in every transaction between them, by which the superior party obtains a possible benefit, equity raises a presumption of undue influence, and casts upon that party the burden of proof to show affirmatively his compliance with equitable requisites and of entire fairness on his part and freedom of the other from undue influence. In Pomeroy's Eq. Jur. § 956, it is said that the term "fiduciary or confidential relation," as used in the law relative to undue influence, is a very broad one, and embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another, and that the relations and duties involved in it need not be legal, but may be moral, social, domestic, or merely personal. In Shackelford v. Shackelford, 144 Ark. 365 ( 223 S.W. 561), it was applied to the case of a parent who took a deed from his child soon after the child reached majority, and while living under the parent's roof; the court holding that the parent had the burden of clearing the transaction of every suspicion and establishing its fairness and good faith. In Thomas v. Whitney, 186 Ill. 225, 57 N.E. 808, the Supreme Court applied the rule in a case where an old and feeble man became an inmate of the defendant's family, the opinion containing the statement that "Certain transactions are presumed, on grounds of public policy, to be the result of undue influence. Such transactions are generally those occurring between persons in some relation of confidence one towards another." The court added that the presence of such relationship creates the presumption of such influence, which may be rebutted by proof.
A case somewhat similar on its facts is Zimmerman v. Bitner, 79 Md. 115 ( 28 A. 820), where the rule as to the burden of proof is stated when the transaction is under attack. In 5 Williston on Contracts (rev. ed.), 4542-4545, § 1625A, many authorities are collected in support of the rule therein stated as follows: "In the absence of a relationship between the parties to a transaction which tends to give one dominance over the other, undue influence must generally be proved by the party setting it up, and will not be presumed. Under such circumstances inadequacy of consideration, although highly material to the issue, usually will not alone constitute such proof, nor will the age, infirmity, or weakmindedness of the promisor or transferor of itself establish a case of defense based thereon. When such a relationship of dominance of one party exists, however, as is ordinarily the case where there is a fiduciary or confidential relation between the parties, the courts of equity hold that it raises a presumption of undue influence and throws upon the dominant party the burden of establishing the fairness of the transactions and that it was the free act of the other party. This principle has been generally applied to cases of settlements of property, especially gifts, rather than to contracts, but does not seem confined to such cases. It is applied where a child obtains a conveyance from an aged parent by means of an agreement to support. So an advantage obtained by a husband from a wife, or by one who stands in the position of a trustee from his cestui que trust, a guardian from a ward, whether legal guardianship exists or not, or by an attorney from a client, an administrator from a legatee, a physician from a patient, a pastor from a parishioner, a director or officer from his corporation, or as between affianced persons, is subject to the same rule. Indeed this doctrine is applicable to any situation where influence was acquired or confidence reposed in fact, whether the basis of the relation is moral, social, domestic, or merely personal." The correctness of the rule was recognized in Causey v. Wiley, 27 Ga. 444, where Judge McDonald said: "The learned chancellor seems to have laid down the sound rule, and the only rule which can protect, effectually, weak men from the machinations of artful men of superior mind, viz.: that upon proof of weak mind, and that the instrument was executed without consideration, or was improvident or profuse, fraud would be inferred, and to rebut it proof must be made that it was the voluntary act of the party himself, unmoved by the words or conduct of the party taking the benefit under it." In Maddox v. Simmons, 31 Ga. 512, 530, it was observed: "It is proper to add, that in cases where imbecility of mind and inadequacy of consideration unite, though neither standing alone is sufficient, under ordinary circumstances, to invalidate a contract, the court has granted relief, without other evidences of imposition; and especially is this the case where imbecility of mind and inadequacy of consideration is united with an abuse of confidence which the one party reposed in the other. Clarkson v. Hannay, 2 Pierre Wms. 204; Gibson v. Jeyes, 6 Ves. 266; Crow v. Ballard, 1 Ves. Jr., 215; Mortleck v. Buller, 10 Ves. 292; Dealty's Heirs v. Murphey, 3 H. K. Marshall's Rep. 475; Whelan v. Whelan, 3 Cowen, 537; Whipple v. McClure, 2 Root, 216; Per. Harris, P. J., in Dunn v. Chambers, 4 Barb. 379."
In Frizzell v. Reed, 77 Ga. 724, 729, we find the following: "The main ground is that the verdict is contrary to the law and evidence in the case; and this ground reaches the entire case made by the pleading and evidence. The evidence of ten witnesses for plaintiff was to the effect that she was insane; on the contrary, the testimony of forty-four witnesses was that she was not insane. But it is quite clear, from the testimony of all, that she was greatly afflicted in body and mind from disease; that she had little or no will power; and that she was greatly under the influence of defendant. So that, under these circumstances, where one possessed of this power over another obtains a conveyance of the property of such person, it should be made to appear that the transaction was fair, honest, and free from fraud or all undue or improper influence of the master mind; such a transaction will be scrutinized closely by the courts; if there be found the slightest scintilla of fraud, the transaction will be set aside. These circumstances, when shown, without more, will of themselves show fraud which will authorize a court of equity to act and set the contract aside." Hubbard v. Rutherford, 148 Ga. 238 ( 96 S.E. 327), was a case where no confidential or fiduciary relation existed between the grantee and grantor, and therefore the court held that it was erroneous to charge the jury that in a proceeding to set aside a conveyance for undue influence it should be made to appear, in order to sustain such conveyance, that the transaction was fair, honest, and free from undue influence; the court at the same time holding that the rule announced in Frizzell v. Reed, supra, and other like cases, "is applicable: (1) where the parties to the deed stand in a fiduciary or confidential relation the one to the other; (2) where badges of fraud are shown, coupled with prima facie evidence of the mental weakness of the grantor, his susceptibility to influence, or other like circumstance." A case that appears to be in point is Stanley v. Stanley, 179 Ga. 135 (supra), where it was ruled: "Under one phase of the evidence, the jury could have found that while the grantor was not wholly incapable of entering into such a contract, he was yet possessed of little or no will power, being afflicted both in body and in mind, and was greatly under the influence of the nephew to whom the deed was executed, and that the deed was `improvident or profuse.' In these circumstances, an inference of fraud could have been drawn by the jury, and the evidence for the defendant grantee not being such as to rebut the inference as a matter of law, the court was authorized to charge the jury upon the subject of fraud. Civil Code (1910), §§ 4626, 4630; Causey v. Wiley, 27 Ga. 444 (3); Woodruff v. Wilkinson, 73 Ga. 115 (3); Orton v. Madden, 75 Ga. 83; Frizzell v. Reed, 77 Ga. 724."
Our conclusion is that the request to charge, the refusal of which is complained of in ground 29 of the motion, stated a sound proposition of law, to wit: "If you find from the proof that Mrs. Cora B. Williams at the time she executed the contract on which suit is brought was of weak mind, and that John Lord Nisbet, the beneficiary of the contract, stood in a confidential relation to her and possessed great influence over her, then the burden of proof would shift to the plaintiff in this case to prove that the contract was not the result of the exercise of undue influence, and in the absence of such proof on the part of the plaintiff you would be authorized to find that the contract was not enforceable." Was it applicable? It was, because it was in proof that Mrs. Williams' mind was affected by her illness, and the narcotics which were administered to her, as a result of which her mind did not properly function, that she was very weak and "doping;" that she was not normal, was not herself; that she did not seem to know what was going on around her; that her mental condition was subnormal; that she was mentally unbalanced. As to the relationship between Mrs. Williams and Nisbet, it was in proof that the relation was quite intimate; that she relied on him and trusted him to a large extent; that he was in charge of her affairs, and she relied on him absolutely in every instance. It was also in proof that he seemed to have charge of everything; that he was very affectionate towards her; that every time he got around her he would go up and kiss her on the forehead; that he was very attentive to her. A witness testified that "I have seen her sign papers that he brought in to her to sign. He would just ask her to sign the papers, and she would sign them. The papers were not read to her." The evidence as to her mental condition was in conflict, and of course we do not mean to rule that what is summarized next above is the truth of the case, for that is the province of the jury, not ours; but when a party makes a timely request to charge based on a theory that is supported by the evidence, it may not be refused merely because the evidence is in conflict. It should be further said in this connection that the instrument under attack was a gratuity, the principal of which amounts to more than two hundred thousands dollars. Grounds 9 and 20 of the motion are meritorious, because the court charged the jury in effect that the burden of proof would shift to the plaintiff if they should find from the proof that Nisbet exercised great influence over her "about this matter," the court thereby eliminating from the consideration of the jury the proposition that without proof that he exercise influence over her "about this matter," such might be presumed from other facts. For a like reason grounds 8, 14, 15, 16, 25, 26, 28, 29, 33, and 37 of the motion were meritorious.
7. With reference to ground 4, which is set forth in the statement preceding this opinion: One of the defenses pleaded was that the obligation sued upon had been paid, satisfied, and discharged. Great delay in asserting a claim is a circumstance to be considered by the jury in support of a defense that such claim has been discharged, although the claim may be asserted within the period of the statute of limitations. That this circumstance is a relevant matter to be considered by the jury in support of such a defense, see Milledge v. Gardner, Norton v. Aiken, Hurt v. Stewart, Calhoun v. Williams, George v. McCurdy, Tumlin v. Guest, Fletcher v. Young, supra; Conway v. Caswell, 121 Ga. 254, 259 ( 48 S.E. 956, 2 Ann. Cas. 269); Gamble v. Burney, 169 Ga. 830, 832 ( 152 S.E. 73). There was no contention by defendants at the trial that this suit was barred by the statute of limitations, or that the plaintiff was legally barred from her claim because the claim was not filed with the executor before he had completed disbursement of the estate's assets; or that the plaintiff was legally barred because the executor had recited in his final returns to the ordinary that all debts of the estate had been paid, or because the executor had turned over the property of the estate to the Trustees. Therefore to single out in the charge each of these separate independent facts, with the statement that they were not sufficient as defenses, not only was calculated to confuse the jury as to what the contentions of the defendants were, but, more importantly, this statement tended to minimize, belittle, and destroy the effect of the evidence in support of the defense of payment and discharge. The language in the charge complained of here tended to impress upon the jury that the court considered such evidence as of little or no importance in the defense of the case. This court has frequently condemned such charges as these. In Southwestern Railroad v. Papot, 67 Ga. 675, the trial court charged as follows: "A statement made by the president of the Southwestern Railroad Company in a letter written by him to Ketchum Hartridge to the effect that `Shorter, Papot Co. had agreed to pay interest,' does not of itself prove that Shorter, Papot Co. had so agreed. The statement alone in such a letter is not sufficient proof that Shorter, Papot Co. had agreed to pay interest. In this, as in all other matters, you should look to the whole evidence of the case." As to this charge the Supreme Court said: "This charge, we think, was error. The letter of W. S. Holt, president, in which the statement appeared and on which the court instructed the jury, was legal and competent evidence, as ruled when this case was before this court heretofore, . . and the effect and weight of that letter as evidence was a question for the jury, and not for the court. . . It was an important link in the chain of testimony produced by the defendants to sustain their answer. To single this out and express an opinion upon its weight and effect, was error."
This statement of the court applies with force to the instant case, inasmuch as the court below abstracted certain elements of the testimony from the whole, and charged upon the weight and effect of such particular elements. These elements, in the words of the court quoted above, were "important links in the chain of testimony produced by the defendants to sustain their answer." To single these elements out, as the court did, and express an opinion upon their weight, was, we think, prejudicial error. In McCrea v. Georgia Power Co., 179 Ga. 1 (7) ( 174 S.E. 798), it was said: "A request to charge is properly refused which singles out particular facts bearing upon the issue to be tried, and seeks to belittle or destroy their weight and probative value when considered alone, when such facts, if taken in connection with the other evidence in the case, tend to establish the issue." The request to charge which was properly refused there was one that an entry upon land merely for the purpose of making a survey would not amount to either open, notorious, or continuous possession; and another erroneous request to charge was that mere entries upon land, although at frequent intervals, by an agent of one claiming the land under paper title, for the purpose of showing it to prospective investors, would not be such adverse possession as the law requires in order to make a good title by prescription. Referring to these requests, which the court held were properly refused, it was said: "While the facts referred to in each of these requests to charge would not, alone and of themselves, be sufficient to show such adverse possession as to be the foundation of a good title by prescription, . . they were admissible in evidence to be considered by the jury, along with all of the other evidence in the case, in determining that question. Each of these requests sought instructions by the court as to the probative value and effect of separate and independent facts, considered alone and by themselves, in determining the question of possession sought to be proved by the defendant. The court properly refused these requests, for the reason that it is improper to single out particular facts which bear upon the issue to be tried, and seek to belittle or destroy their weight and value, when such facts, if taken along with the other evidence in the case, might tend to establish the contention of the party offering such evidence." See Flowers v. Flowers, 92 Ga. 688 (3), 691 ( 18 S.E. 1006); Georgia Railway Power Co. v. Head, 155 Ga. 337 (3,6) ( 116 S.E. 620). The criticism of the charge, which is in this respect well founded, applies also to grounds 5,6,7 and 18 of the motion. On application of the above principles, ground 34 is without merit.
8. In several grounds of the motion complaint is made that the court charged the jury that "The influence which will invalidate a contract is such fraudulent practices upon the maker's fears, affections, and sympathies as entirely substitutes the will of another for the wishes of the maker of the instrument." It has been held that fraud and undue influence are not equivalent terms; undue influence may be a species of fraud, or it may exist without any positive fraud. DeNieff v. Howell, 138 Ga. 248, 252 ( 75 S.E. 202). It has also been ruled that undue influence is such influence as amounts either to deception of to force and coercion, thereby destroying free agency. Cook v. Washington, 166 Ga. 329, 348 ( 143 S.E. 409). In the case under review, the jury were correctly charged that "To constitute undue influence it is not necessarily required that there should exist moral turpitude or even an improper motive; but if a person from the best of motives, having obtained a dominant influence over the mind of the grantor, thereby induces her to make a contract which she would not have made otherwise, exercising the influence to the extent that the mind and will of the grantor is effaced or supplanted in the transaction, as that the instrument, while professing to be the act and deed of the grantor, in fact only expresses the will and mind of the other person," such would constitute undue influence; but for reasons pointed out in division 6 of this opinion, movants were not given the benefit they were entitled to from this definition of undue influence, because the court, immediately after the quoted extract, added, "if those facts are proven, if you find them to have been proven." The criticism of the charge which forms the basis of ground 10 of the motion is well founded.
9. There is an exception to the following charge of the court: "Now gentlemen, if you should find for the plaintiff, and which could only be done if you find against both of the contentions of the defendants, the form of your verdict would be: We, the jury, find for the plaintiff, Mrs. Idella Holloway Nisbet in the sum of $210,000, together with seven per cent. interest upon the several installments from the respective maturity dates of each, to be recovered and paid only out of the trust funds. If your verdict should be for the plaintiff, that would be the form." The contention is "that the defendants were not liable for interest at all; further, that if liability for any amount in the nature of interest should exist, it would not exist for the period from the defendants' receipt of the money from Nisbet, as executor, up until the time of the plaintiff's demand upon them; further, that if they are liable for anything beyond the principal, such liability would in no event, be, as a matter of law, for a fixed seven per cent, interest, but only for the amount actually earned by the portion of the funds and property to which the plaintiff was entitled." If the charge excepted to authorized an unpaid creditor, in order to satisfy his debt, to recover from the residuary legatee statutory interest on the funds of the estate paid the legatee by the executor from the time they were received, it would no doubt be erroneous. A donee of trust funds, without notice of the trust or of a valid claim thereon, is not generally liable for interest thereon except as to such as might have been actually received, until he receives notice and demand for restitution or payment. The authorities cited by plaintiffs in error seem to hold this and nothing more. 2 Scott on Trusts 1614, 1617; 4 Bogert on Trusts, 2525, 2530; 2 Restatement of the Law of Trusts, 890, § 292; Restatement of the Law of Restitution, 618, 621, 622. This is true, not because interest is "of purely statutory origin and not the creature of the common law" and "should not be awarded except in such cases as fall within the terms of the statute unless it has been contracted for either expressly or impliedly." ( Best v. Maddox, 185 Ga. 78, 82, 194 S.E. 578; Southern Cotton-Oil Co. v. Raines, 171 Ga. 154 (10), 155 S.E. 484), but for the reason that the claim is considered as one due only on notice and demand upon the donee, and on such claim interest runs only from demand. Code, § 57-107. Except for this, the claim being liquidated, it would draw interest. § 57-110. "The general rule is that on money paid by mistake, when there is no fraud or misconduct by the party receiving it, interest does not run until after demand. Prior to demand by suit or otherwise, the receiver is in no default." Georgia Railroad Banking Co. v. Smith, 83 Ga. 626 (5) ( 10 S.E. 235); Code, § 57-107. See Anderson v. State, 2 Ga. 370; Adams v. Johnston, 39 Ga. 479. Such, however, is not the present case. The action does not seek and the charge does not direct the jury to assess the defendants with interest on the funds of the estate distributed to them. The plaintiff held, as assignee, a written obligation of Mrs. Williams for the payment of definite sums of money, and she sued the residuary legatees, not attempting under a claim of title to recover the funds of the estate or any part thereof with interest thereon, but merely seeking satisfaction of both principal and interest of her debt against Mrs. Williams out of those funds.
So the charge of the court was merely to the effect that the sums agreed to be paid under the written instrument executed by Mrs. Williams drew interest from their respective due dates, and that as to such amounts the plaintiff was entitled to subject the funds of the estate (not themselves enhanced by interest). There was no question made by the defendants in the record that the amount actually received by them was not ample to cover these amounts. It is fact appears that they received from the executor an amount greatly in excess thereof. Nor were there any equities set up by them as to why less than the amount received should be available for application to be a debt of an unpaid creditor of the testatrix. As has already been made to appear, the plaintiff's claim was based on a written instrument for the payment of definite sums of money in installments, and clearly enough they were liquidated demands which, as against Mrs. Williams and her estate, would draw interest. Code, § 57-110. Cf. Clark v. Georgia R. Bank c. Co., 182 Ga. 472 ( 185 S.E. 716). "A creditor of an estate may follow assets in the hands of legatees or distributes, though they receive them without notice." Code, §§ 108-425, 113-1506; Caldwell v. Montgomery, 8 Ga. 106; Jones v. Parkers, 55 Ga. 11; Moore v. Smith, 121 Ga. 479 ( 49 S.E. 601); Morrison v. Fidelity Deposit Co., 150 Ga. 54 ( 102 S.E. 354); McNair v. Rabun, 159 Ga. 401 ( 126 S.E. 9); Wilson v. Aldenderfer, 183 Ga. 760 ( 189 S.E. 907). The creditor's right in this connection is to have the assets of the estate in the hands of the legate applied in satisfaction of his debt, if they be sufficiency for that purpose (and here we have no question of the sufficiency of the assets of the estate in the hands of the defendants). His debt where liquidated consists of interest as well as principal. Cf. Park v. Candler, 114 Ga. 466 ( 40 S.E. 523). As a general rule in a case of this character, as regards the establishment of the debt due by the estate, the defendant legatees stand in the place of the executor. Thus the action is not governed by the limitations in reference to actions for money had and received or unjust enrichment, but by the limitations to actions on the character of the claim against the estate. Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807 (supra); Caldwell v. Montgomery, supra: Morrison v. Fidelity Deposit Co., supra; Moore v. Smith, 121 Ga. 479, 481 (supra). So, too, the debt for which the defendant legatee is liable up to the amount of assets received by him should, as a general rule, be governed by the amount for which the executor would be liable. This of course would include both principal and interest. It may be true that there has been a delay in presentation of the claim, and that if the defendant legatees had been earlier notified of the debt they would have paid it rather than let it continue to draw interest. This does not, however in our opinion constitute an equitable reason why the whole interest should not be paid. The penalty under the statute for delay in presentation of claims against an estate is loss of priority, not of loss of any part of the debt, principal or interest. Code § 113-1505. Our view is that the defendant legatees took the funds of the estate subject to any charge of debts so long as it remained in their hands and to its full extent. The liability for the debt due to the plaintiff, including interest, is assessed against the residuary estate, and not against the legatees. The tracing of the assets into the hands of the trustees is done in a case like this merely to subject them to such payment, not to restore them to their owner as a claimant, nor to assert liability against the trustees in whose custody they are found. Thus the estate rightfully held by them is merely reduced by the full amount of the debt, the only difference being that the reduction comes about after it comes into their hands by delivery from the executor. The plaintiff was a creditor of the estate as to interest as well as to principal. The assignment of error on the charge is accordingly held without merit.
What has been said in this division of the opinion was prepared through collaboration of the other members of the court. Without committing himself to all that is contained therein, the writer, though entertaining grave doubts as to the conclusion reached as to this ground of the motion, concurs in the ruling that under the facts of this case the charge complained of was not erroneous.
10-13. The remaining grounds of the motion are dealt with in the headnotes.
Judgment reversed on the main bill of exceptions; affirmed on the cross-bill. All the Justices concur.