1. trusts - constructive: evidence: insufficiency. I. Charles E. King had been a long time resident of Des Moines. His death occurred on October 26, 1912. He was seventy-five years of age. Up to a year or more prior deafh-> he had been the possessor of Property in the form of moneys and credits £0 ^ extent 0f $10,000 or somewhat more. He had no children. His wife had died in 1908. After the death of his wife, he occupied his home alone until January, 1910. In November, 1909, he executed his will, whereby he made provision for all of the children of his four deceased sisters. By such provision, he directed the division of his estate into four parts and that each fourth part should go respectively to the representatives of each deceased sister per stirpes. The defendant, Mrs. Northrup, is a daughter of one of such deceased sisters, Mrs. Seth Graham. The other defendant is her husband. In January, 1910, King became sick and needed care. He vacated his home and moved to the home of his brother-in-law, Seth Graham. Mr. Graham was himself more or less of an invalid, and his daughter, Mrs. Northrup, with her husband, lived with him and did his housekeeping. Into this home, King came for a brief time before going to the hospital. Shortly thereafter, he went to the hospital to receive surgical treatment and remained there about two weeks, after which time he returned to the Graham home. In this home, he continued to reside until he and Mr. and Mrs. Northrup moved to another home acquired by the North*671rups with his assistance. In this new home, these three lived together until the death of Mr. King.

The foregoing is perhaps a sufficient indication of the background against which the material evidence in the case must be viewed.

Among the assets of King were two bank certificates of deposit of $4,000 each, which he had held by successive renewals for several years. The new home of the Northrups was purchased about June, 1911. The property consisted, of a residence and its appurtenances and thirty acres of ground in the near vicinity of Des Moines. The purchase price was $8,500. At this time, one of the bank certificates for $4,000 was indorsed by King to Mr. Northrup and by him applied upon the purchase price of the new home; $500 of the purchase price was contributed as a gift to Mrs. Northrup by her father, Seth Graham. A mortgage for $4,000 was executed upon the home for the purpose of obtaining the remainder of the purchase price.

In October, 1911, the other bank certificate for $4,000 was also indorsed to the defendant Northrup and at the same time cashed at the bank. It is because of these transactions that the plaintiff asks that a constructive trust be impressed upon the land in his favor.

It is the contention of the plaintiff that King, at the time of these transactions, was mentally incompetent to transact business and especially incompetent to make a gift. The contention for the defendants is that King was not mentally incompetent and that he did in fact transfer such certificate to them as a gift. The trial court found with the defendants.

There is a point of view from which this alleged gift comprising the substantial part of the donor’s estate might seem quite unreasonable and therefore incredible. But as already stated, the evidence must be read against its background.

*6722. Gifts: mental competeney: evidence: sufficiency. *671On the question of mental inpompeteney, the very clear preponderance of the evidence is with the defendants. The *672substance of the evidence tending to show mental incompetency is failure of recognition of the witness by Mr. King and a failure to engage in con- , ,. ,- „ versation or to notice the presence oí aequaintanees on certain occasions and an alleged “dazed” appearance. This testimony was given almost wholly by parties in interest. It is undisputed that for many years Mr. King had been very deaf. This condition is sufficiently described by Mr. Powell, his former attorney, who was a witness for the plaintiff.

“Mr. King was very deaf, he could not hear an ordinary conversation, and in order to make him hear, I always used to go around my desk where he was sitting, and put my lips very close to his ear.”

Mrs. Gregory, one of the beneficiaries of the will, described his condition as far back as 1908, as follows:

“When he came to our house he would stay two or three hours. Uncle was very quiet, but was always of a cheerful disposition. He had always been hard of hearing. Sometimes I could not make him understand what I had to say, but he would always start some conversation and talk a good while on his subjects intelligently.”

It is undisputed also that for some years Mr. King had been subject to occasional involuntary evacuations of the bowels and bladder. The frequency of these untoward occasions increased as he grew older. In the' light of these undisputed facts, the descriptive evidence of plaintiff’s witnesses is not very persuasive. On the other hand, a very considerable array of apparently disinterested and intelligent witnesses have presented the appearance and conduct of Mr. King up to a comparatively short time before his death. Much of this testimony is specific in time and circumstance. No other conclusion is fairly possible from the testimony as a *673whole than that the mental competency of the deceased has not been successfully assailed. Whether the transfer of the certificates was intended as a gift or not is a more difficult question. The claim of gift is supported by the direct evidence of Mrs. Northrup alone. As a witness, she related in detail the conversation between King and her husband (who was also deaf). Because bf her interest, her testimony should be subjected to great scrutiny. From the very nature of the case, no direct testimony can be produced to contradict the same. Surely it ought not to be accepted lightly, and perhaps it ought not to be accepted in itself as sufficient unless it has satisfactory corroboration in the various circumstances of the case. After a very careful consideration of the entire record, we all reach the conclusion that all the circumstances of the ease, most of them undisputed, strongly corroborate the claim of gift.

From King’s point of view in 1911, he needed a home with someone who could give him patient and kindly care. He had an expectancy of life of a few years and it is an exceptional man who does not expect to outlive the expectancy of the mortality tables. The care which he needed was unpurehasable. The cleansing of garments and bedclothes was one continuing task. There were many nephews and nieces who had been remembered in the. will. They were all affectionate and kindly to their uncle, but only one came under the load. She had been selected by King himself in January, 1910, as the one upon whom he would venture to lean. For a year and a half before the purchase of the new home, she had borne his infirmity without complaint and without price. She and her husband were themselves poor and in a sense homeless. It clearly appears that King was interested in their acquisition of a new home. He was close and careful with his small business affairs. He was not lacking in intelligence. We must assume that there was some intelligent reason' for his transfer of the bank certificates at the time shown. He had selected their home as his. He had *674been with them long enough to know whether he could trust their patience with his infirmity, and their fidelity to his needs. Unless he was determined at all hazards to keep his little estate intact for final distribution among his nieces and nephews, the use of these bank certificates in the acquisition of this home would be quite in accord with his own interests. It would naturally tend to his own comfort and enjoyment, assuming, of course, that he expected to occupy the home with the Nortkrups to the end of his days.

If he were separated entirely from affectionate relatives and were required to purchase his care from hospital and nurse, his little estate must have suffered great depletion. In addition to the circumstances here referred to, there was the direct evidence of one disinterested witness, who had been a long-time acquaintance of Mr. King, to the effect that he had told the witness that he had disposed of his property in the manner herein claimed.

In view of our concurrence with the view of the trial court on the question of fact here involved, we deem it needless to go into a more detailed discussion of the evidence. We do not overlook one or two circumstances relating to the alleged codicil and to a claim filed by Mr. Northrup. It is strongly urged that these circumstances discredit the claim of gift. The circumstances, such as they are, are entitled to consideration, but they are nqt so damaging to the defendants as the plaintiff contends. The first is lacking in proof. The second might properly have called for an explanation from Mr. Northrup. The explanation, however, would necessarily call for a personal transaction between him and the deceased, to which he would be incompetent to testify. Whether he ought to have offered to testify on the subject, or whether the plaintiff should have offered to waive objections to his testimony, we will not now consider. The circumstance was not of such a nature as to be controlling in any event.

*6753. Pleadings: conversion: evidence of gift as defense : special pleading. *674■ II. It is strongly urged in argument by the appellant that the pleadings of the defendants opened no door to proof *675of a gift. It is urged, therefore, that the evidence on that question should be wholly disregarded. The point is evidently raised for the first time in this court. It was not made in the lower court either by attack upon the pleadings or by objections to the evidence. It must be said that the pleadings on both sides were loosely drawn. The petition charged the defendants with converting the moneys of the estate of Charles King. There was no allegation or suggestion therein of the relation existing between the defendants and King in his lifetime. Under the evidence, King might have been found mentally competent and it might have been found that he voluntarily transferred the property to the Northrups, and the question might still remain whether the transfer was made by way of a gift or by way of a loan. But the petition was not framed to claim a recovery upon any other ground than that of fraudulent conversion. Evidence of a gift from King in his lifetime certainly tended to negative the claim of fraudulent conversion of the same funds. In view, therefore, of the form of. the petition, the plaintiff is in no position to contend that the defendants should have pleaded the gift as an affirmative defense. The parties introduced their testimony in the court below upon that issue and the case was made to turn upon it. We have therefore undertaken to dispose of it here upon the same theory of the pleadings as was adopted below both by the trial court and by the parties. The order of the trial court must be- — Affirmed.