Robert Emmett Sayings Ass'n v. McMahon

Opintow.

The evidence in this case shows that such relations of special confidence in, and reliance upon,, the grantee, existed on the part of the granlor in the deed, the validity of which is assailed, and under which for a merely nominal consideration, the grantee became the sole and absolute beneficiary, as to impose upon the grantee, the onus of proving that the transaction was a fair and proper one. This onus he has failed to sustain.

The testimony clearly shows, both from repeated declarations by the grantor and from the grantee’s own admissions in the answer filed, an intention by the grantor to make provision for the infant children of her deceased son, John. But the deed on its face makes no provision for them whatever ; the property is in terms given to the grantee absolutely. The grantee’s explanation is that the grantor relied upon the grantee’s kindly feeling and good will to make this provision, but that would be no provision at all, in any proper sense of the word — it would be a mere mockery, any allowance the grantee might make, would be subject to his own caprice, and would at once terminate at his death. What the grantor intended was a bona fide substan*694tial provision for the children of her deceased son, to which they should be absolutely entitled, and which might be enforced at law.' This deed wholly failed to carry out her purpose, therefore, and ought not to be allowed to stand to defeat her intention.