her capacity. It is further significant that no attempt was made to obtain the execution of a new deed of trust or at least an affirmance by the settlor of the previous deed.
This brings us to a consideration of the final question. Once a confidential relation has been established in an inter vivos disposition of property, it follows that the proponents of the document are faced with the necessity of affirmatively establishing, as set forth in the case of Leedom v. Palmer, 1922, 274 Pa. 22, at page 25, 117 A. 410: that no deception was used and the act was the intelligent and understood act of the grantor, fair, conscientious and beyond the reach of suspicion. Otherwise, the law presumes the transaction void. The opinion of Mr. Justice Kephart in the Leedom case, in a succinct statement of law, clearly demonstrates that this has been the law of Pennsylvania since before In re Greenfield's Estate, 1851, 14 Pa. 489, 505. Mr. Justice Allen M. Stearne in his opinion in Stewart v. Hooks, supra, restates the Pennsylvania law in almost precisely the same terms.
It follows, therefore, from what has been said before, that the defendants in this case have failed to sustain the burden imposed upon them of establishing by a preponderance of the evidence that the deed of trust was the intelligent and understood act of the grantor and beyond the reach of suspicion. That the attorney for one of the principal beneficiaries urgently insists his utmost concern was the welfare of the settlor is not at all impressive in the light of actual events. While the result reached by these two attorneys in view of the relationship existing between Greenwood and Davis on the one side and the settlor on the other might appear on its face to be a normal disposition of the settlor's property, that fact can bear no weight in the light of the circumstances under which that result was reached. Greenwood's and Davis interests alone were completely protected. Despite the finding of the advisory jury that Barkan and Brand also represented Mrs. Vanatta as well as their respective clients, as stated previously, it is the opinion of the Court that she not only did not have but should have had her own individual counsel. Both lawyers were retained by and paid by their respective clients and the result obtained indicates that the clients were well represented.
This is a type of case in which the impressions of the Court from hearing the witnesses testify and their manner of testifying is most important in a decision of the issues. Of the two principal beneficiaries, Davis was the more frank. His testimony clearly indicates that it was his intention, through his counsel, to persuade the settlor to place her property forever beyond her reach and further control on her part. Greenwood was less frank. His statements as to his vital associations with his sister during November and December and the part he played in procuring the execution of this document are, as said before, very meager. What he did through his counsel and his counsel's lawyer-employee was to upset the prospective distribution of the settlor's estate, as it had been determined by her several years previously and at a time when there is no evidence that she was of impaired mentality. The fact that relatives in the same degree of blood relation as the two principal beneficiaries, who were not as attentive to the settlor and perhaps not the normal objects of her bounty, might now benefit cannot be of controlling legal significance. The procurement and execution of the deed of trust has not been established by a sufficient burden of proof by its proponents as being the free and intelligent act of the donor. As stated by Mr. Justice Barnes in the case of McCown v. Fraser, 1937, 327 Pa. 561, 565, 192 A. 674, 676:
'Such a transaction will be condemned, even in the absence of evidence of actual fraud, or of mental incapacity on the part of the donor, unless there is full and satisfactory proof that it was the free and intelligent act of the donor, fully explained to him, and done with a knowledge of its consequences.'
Such proof has not been presented by the defendants in this case. The rule in the Leedom v. Palmer case, supra, must be invoked and the presumption of invalidity follows. In the words of Mr. Justice Barnes such a transaction 'will be condemned'.
The foregoing may be considered as the Amended Findings of Fact and Conclusions of Law of the Court, as supplemented by the factual statements contained in its previously referred to Opinion, D.C.1954, 16 F.R.D. 366.
An appropriate order granting plaintiffs' motion; vacating the Court's previous adoption of the findings of the advisory jury; setting aside the judgment entered in favor of the defendants, and for judgment in favor of the plaintiffs; declaring null and void the Deed of Trust dated February 5, 1949 between Emma E. Vanatta and the Fidelity-Philadelphia Trust Company, will be entered.
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