¶1delivered the opinion of the Court:
¶2We can not concur in the view of the court below, that the deeds were made by the complainants by reason of the undue influence of the defendants, or either of them, over their minds. The evidence preserved in the record shows that they were old, ignorant and infirm, and they were, consequently, more liable to be deceived and misled than would have been possible otherwise; yet there was sufficient capacity to contract, and the evidence is they did contract, and the deeds were voluntarily executed in attempted compliance with their part of the contract.
¶3In. our opinion, however, the clear preponderance of the evidence is, the deeds were executed npon the consideration that the complainant William was to have the use and absolute control of the lands during his life; that.his five sons, to whom the conveyances were made, were to pay the complainant Letilia §250 for signing the deeds and relinquishing her dower, which has been paid, and that they were also to pay their sister, Polly Ann Penny, §1000. This was not so unreasonable as to raise a presumption of want of capacity in the complainant William. It guaranteed to him a home and certain support during his life, and it provided for what we are led to suppose was a reasonably fair division of his property among his children, after his death.
¶4In view of the great age, as well as ignorance, of the complainant William, taken in connection with the other evidence, we do not regard the alteration in the deeds, made by the attorney, as being his act. We have no doubt the attorney acted in good faith, and supposed what he was doing was the desire of both parties present; but it is apparent, from the evidence, he assumed, as it was quite natural he should, that there was a complete understanding between them, and that the desire of the one was the desire of the other. It is now evident this was not the fact. Jesse wanted the immediate control of the property for himself and brothers, while his father wanted its control during his life.
¶5The attorney says : “ I don’t recollect whether there was anything said about a life lease, or any other kind of lease; indeed, I can not remember the language employed by any of them, but I ascertained, as I thought, from the conversation between them, that it was the desire of all the parties to the deeds, so far as they were represented there, that the old gentleman should have a support secured upon these lands in some way or other. … My suggestion seemed to meet their approbation.”
¶6The evidence of the complainant is positive, that neither at that time, nor at any other, did he want or consent to any-tiling short of a lease of the lands for his life; and that such was the understanding and intention when he executed the deeds, is, as we have before observed, shown by a clear preponderance of the evidence.
¶7It is so manifestly against the interest of an old, helpless man to surrender the present means of a comfortable support, and accept, in lieu thereof, mere individual obligations to maintain him, even if the obligors are his own children, that a court of equity should never act upon the assumption that it has been done, unless the proof to that effect is entirely clear and convincing. In the present case, such proof is wanting.
¶8We are of opinion that the contract, as made, should be carried into effect.
¶9The decree of the court below will be reversed, and the cause will be remanded to that court, where a decree will be entered directing the defendants, to whom the conveyances were made, to surrender immediate possession of the lands to the complainant William, and execute to him a lease for the same during his life; that thereafter an account be taken of the rents and profits of the land, after deducting such sums as have been paid for taxes and necessary repairs, during the time such defendants have had possession thereof, which shall be paid to the complainant; and that the claim of Polly Ann Penny be declared a lien upon said land, payable at the death of the complainant William.
¶10Decree reversed.
¶11Mr. Chief Justice Walker: I think the decree should, on the authority of former decisions of this court, be affirmed.