Opinion of the Court-Budge, District Judge. that the said Lucinda Turner was weak-minded, feeble in health or unable to see or hear except with great difficulty, or that by reason of her infirmities or mental condition she could have been or was easily influenced or influenced at all by the respondent with reference to her property. The respondent denies specifically that she exercised any influence or control over her mother in the making and delivering of said. deed, or that she abused her or coerced her or induced her to make and deliver the same, and alleges that when said deed was delivered, her mother was capable and competent to transact her business and to comprehend and understand the consequences of all her acts, and that she well understood what she was doing when she executed and delivered said deed to the respondent and excluded the appellant from any share or interest in said property. The respondent alleges that her mother deeded said property to her because of respondent's having had the exclusive care and treatment of her mother for a period of nearly twenty-four years, and because of the love and affection that she entertained for the respondent. Respondent denies that she fraudulently concealed or secreted the said deed, or fraudulently failed to file the same for record for more than eighteen months, or for any time. whatever, and alleges the facts to be that on the 17th day of September, 1907, shortly after the delivery of said deed, her mother requested her not to place the same on record until after her death, and assigned as a reason therefor that appellant would cause her serious unpleasantness. The court, after hearing all of the evidence, entered its judgment in favor of the respondent and against the appellant, who prosecutes his appeal in this court. The appellant in his brief assigns and specifies under numerous heads, first, the insufficiency of the evidence to justify the findings and judgment of the court below; and, second, that the court erred in deciding questions of evidence during the trial. Opinion of the Court-Budge, District Judge. We will not discuss separately the various subdivisions under the first or second assignments of error, but will discuss all of the assignments together. The evidence, briefly stated, is that Lucinda Turner was the mother of the appellant and respondent; that they were her only living children and heirs at law; that the appellant is a man 63 years of age; that since he was 26 years of age, he has not lived with his mother, but has seen her during her lifetime sometimes once a month, sometimes two or three times a month, and at times five or six, and as much as nine months would elapse that he would not see her. The testimony of the appellant with reference to the physical condition of his mother is based solely upon the observations that he made during his occasional visits. The other witnesses testifying on behalf of the appellant based their testimony upon observations made by them either upon occasional visits to the home of Lucinda Turner, or upon meeting her at the home of her friends. The testimony of J. K. Turner, a son of the appellant, as to the condition of Lucinda Turner up to May, 1898 (about twelve years prior to the trial of this cause), would not be entitled to much weight. However, his testimony shows that the feeling existing between Lucinda Turner and the respondent herein was much different from that testified to by other witnesses on behalf of the appellant. He states that he had never seen or heard of the respondent and her mother quarreling, or that the respondent, to his knowledge, during the time that he lived with his grandmother, Lucinda Turner, attempted in any manner to influence her against his father. The witness, Defonda Turner Franklin, a daughter of the appellant, testified that she lived with her grandmother, Lucinda Turner, when she was about six years of age, and that she remained with her grandmother about a year, when she returned home, and that she did not see her grandmother for seven years. Still she testified that she remembered certain conversations had at that time between the respondent and her grandmother to the effect that the respondent at that time told her grandmother that her father was robbing her Opinion of the Court-Budge, District Judge. and was a drunkard, etc. We can hardly believe that the witness would remember a conversation between her grandmother and the respondent, alleged to have occurred when she was six years of age, for a period of eighteen years. This witness also testified that at the time she was six years old she remembers that respondent collected the rents due to her grandmother and took charge of her grandmother's business. However, she also testified that she never knew the respondent and her grandmother to quarrel. In concluding her testimony she says that she had not seen her grandmother for fifteen years prior to the time she made her deposition in this case. We hardly think her testimony with reference to her grandmother's mental or physical condition, or her recollection of what happened when she was six years old, would enlighten the court in reaching a proper conclusion as to the condition of Lucinda Turner at the time that the deed in question was executed. Mrs. Alice Turner, wife of appellant, testified that she had not seen Lucinda Turner very often during her lifetime; that the last time she saw her was during the year 1905, five years before the trial of this case. She testified that at that time Mrs. Turner was pretty feeble and weak. However, her testimony shows that when Mrs. Turner visited her in 1905, she walked about sixteen blocks and after remaining a short time returned home, making in all about thirty-two blocks that this old lady walked in order to visit her son and daughter in law; and after her visit was over, in the feeble condition in which they testified she was, without the aid or assistance of anyone except her son, who went with her but a short distance toward her home, she was permitted and was able to make the return trip to her own home alone. It would hardly be consistent for us to presume that Mrs. Turner was in such a condition at that time that she had no control over her own actions and was entirely under the influence and control of her daughter, the respondent. The testimony shows that the appellant and his mother were never closely associated with each other after appellant left his mother's home. It is quite apparent from the testi Opinion of the Court-Budge, District Judge. mony that he was willing that his mother should make her way in the world as best she might. There is other testimony in the record tending strongly to show a lack of affection upon the part of appellant for his aged mother, but for the purpose of this case we do not deem it necessary to discuss this phase of the testimony. There is some testimony in the record given by the witnesses for the appellant that we do not deem material because it is based upon the opinion of the witnesses who had no means of knowing what the mental or physical condition of Lucinda Turner was at the time that the deed in question was executed. The evidence shows that when the respondent came to Boise from California, she went directly to the home of her mother, where she resided with her mother for something like twenty-four years, during which time there existed between them a strong affection and in each other they had implicit confidence. It is in the evidence that the mother complained because the daughter would not permit her to wash dishes, scrub floors or perform other menial labor, and from the evidence we can reach but the one conclusion, that the respondent did all in her power, as a dutiful child, to secure the happiness and comfort of her aged mother. "The burden of proof of undue influence in a gift from an aged woman to her daughter with whom she lives rests upon the party who brings the action to set aside the gift." (Towson v. Moore, 173 U. S. 17, 19 Sup. Ct. 332, 43 L. ed. 597.) And the question is: Has the appellant established by a preponderance of the testimony that the grantor (Lucinda Turner) was not using her free will at the time that the deed in question was executed? In the case of Towson v. Moore, supra, the court says: "It has since, more than once, been recognized by this court, that 'the influence for which a will or deed will be annulled must be such as that the party making it has no free will, but stands in vinculis'"; and cites in support of this doctrine Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. ed. 112; Ralston v. Turpin, 129 U. S. 663, 9 Sup. Ct. 420,, Opinion of the Court-Budge, District Judge. 32 L. ed. 747; Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. ed. 84. (See, also, the case of Estate of Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101.) In order to ascertain what the mental condition of the grantor was at the time the deed in question was executed, we think that the testimony given by the officer who took the acknowledgment and by the witnesses who were present at that time, is entitled to peculiar consideration and to greater weight than the testimony of interested witnesses or the testimony of those who had not seen Mrs. Turner for many years. (Delaplain v. Grubb, 44 W. Va. 612, 67 Am. St. 788, 30 S. E. 201; Kelly v. Perrault, 5 Ida. 221, 48 Pac. 45.) We therefore quote from the testimony of Jonas W. Brown, the notary who took the acknowledgment, also from the testimony of T. D. Cahalan, who was present at the time the acknowledgment was taken. We conclude from this testimony that the grantor understood fully what she was doing at the time she executed the deed, and that she had done it after years of deliberation and with a full understanding of the consequences of her act. Jonas W. Brown, sworn on behalf of defendant, testified as follows: "I am acquainted with the defendant, Mary C. Gumbert. I knew Lucinda Turner in her lifetime. I was not much acquainted with her, but I knew her. "Q. I hand you a paper marked defendant's exhibit No. 1 for identification, purporting to be a deed from Lucinda Turner to Mary C. Gumbert. Just examine that paper and state whether or not you ever saw it before. "A. Yes, sir, I did. That is my notary certificate. That acknowledgment was taken on the day that it purports to be taken there. Taken at the house of Mr. Gumbert. Mrs. Turner and Mr. Cahalan and I think a little girl was present when this deed was executed and the acknowledgment taken. The deed was signed in my presence. Well, when we went to the house to acknowledge the deed, Mr. Cahalan told her that he had made out the deed and says he, 'I will read it to you now,' and he read it to her very carefully and |