The opinion
HIGHERS, Judge,
dissenting.
Because the majority opinion does not satisfactorily deal with the effect of weak *948 ness of mind upon donative intent, I must respectfully dissent.
It is undisputed that the plaintiff suffered a stroke on September 15, 1979, and less than three weeks thereafter conveyed the property in question to the defendants. The defendants employed the surveyor, talked with the lawyer who prepared the deed, transported the elderly plaintiff to the lawyer’s office for execution of the deed, and immediately recorded the deed at the Register’s Office. At the lawyer’s office the plaintiff was physically unable to go inside, and the lawyer had to come out to the automobile in order to take her acknowledgment.
The majority opinion recognized that incapacity may invalidate a transfer, but it goes on to discuss undue influence, dealing at length with confidential relationships and independent advice. I agree that the evidence does not preponderate in favor of the plaintiff’s theory of undue influence.
What the majority opinion fails to recognize, however, is that donative intent, separate and apart from the issue of undue influence, is an essential element of an inter vivos gift and that the burden of proof is on the donee. First National Bank v. Howard, 42 Tenn.App. 347 , 302 S.W.2d 516 (Tenn.App.1957). Doubts must be resolved against the gift. Pamplin v. Satterfield, 196 Tenn. 297 , 265 S.W.2d 886 (Tenn.1954). In 38 C.J.S. Gifts § 13, the general rule is stated that “the donor shall have sufficient mental capacity to make a gift; a gift by a donor mentally incompetent is void.” Later, although it is said that “[njeither age, nor physical weakness and debility ... nor even mental weakness, will affect the validity of a gift, where the donor has sufficient intelligence to understand the nature and effect of his act,” a footnote points out that “[w]hile mental weakness is not of itself sufficient to overturn a gift, it may warrant the conclusion that the donor did not have the requisite intention to maké a gift.” 38 C.J.S. Gifts § 13, citing Collins v. Baxter, 231 Ala. 247 , 164 So. 61 . In Alston v. Boyd, 25 Tenn. 504 (Tenn.1846), the disease of monomania was found to incapacitate the plaintiff so as to make his contracts void, even where there was no allegation of undue influence.
The majority opinion and the trial court apparently rely most heavily upon the testimony of the lawyer who prepared the deed, notwithstanding the brevity. of the occasion, the'limited opportunity for observation of the plaintiff, the fact that he had only “a very short conversation” with her, and that he was generally unaware of her physical and mental condition at the time of the transaction.
There was more than ample uncontra-dicted testimony from those who were in a position to observe the plaintiff at close range, both before and after the onset of her illness, to show the effect of her mental weakness upon donative intent at the time of this transfer. Based upon the proof which has been outlined in the majority opinion, especially in paragraphs 4 through 15, I would hold that the defendants had failed to prove donative intent on the part of the plaintiff and that the evidence clearly preponderates against the finding of the trial court in this respect.