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relations have existed between the testator and the beneficiary: Sunderland v. Hood, 84 Mo. 293; Waimoright's Appeal, 89 Pa. St. 220. The mere fact that a testator devised all his estate to a woman with whom he lived as his wife, when she was in fact the lawfal wife of another, and though ho es. cluded his brother and sister from taking under his will, does not authorize an instruction that the law presumes undne influence on the part of the devisee, and that, in the absence of contrary proof, the jury must find against the will. Undus influence cannot be presumed from the set of an. lawful cohabitation: Porschet v. Porschri, 82 Ky. 93; 56 Am. Rep. B80. So in an issue of devisavil vel non on the allegation of andue infinence by the mother of an illegitimate child, the unlawful cobabitation of the mother with the testator is not, of itself, sufficient evidence from which a jary could infer undue influence: Rudy v. Ulrich, 69 Pa St. 177; 8 Am. Rep. 238. And in Monroe v. Barclay, 17 Ohio St. 302, 93 Am. Dec. 620, it was decided that a will produced by influences springing from an unlawful and illicit relation between the legatee and the testator will not raise the presumption of andre influence, unless it appears that such infinences were exerted in restraint of the will of the testator, and prevented bim from disposing of his property in accord with his own wishes. To the same effect is Sunderland v, Hood, 13 Mo. App. 232. And see also Dickie v. Carter, 42 III. 376, where it is determined that if the devisee has had improper interconrse with the testator, no matter how immoral the relations may have been, this, of itself, is not sufficient to invalidate a will in favor of the wrong-doer, if no improper influ. ences are shown to have been exerted to induce the will. So in Main v. Ryder, 84 Pa. St. 217, the testator had abandoned his lawful wife and children, and lived for many years in adultery with a woman allnded to in his will as his wife. He had by such woman several children, and made her and such children devisees of a large portion of his estate. The court said: “These circumstances do not create a presumption that the will was executed under improper influences, and while the illicit relation should be considered in determining the question of andue influence, the effect of such influence is a question of fact for the jury." This ruling is in accord with that in Dean v. Negley, 4) Pa. St. 312, 80 Am. Dec. 620, sometimes cited as maintaining a contrary doctrine; but whether it does, or not, is immaterial, as the rule of Main v. Ryder, 84 Pa. St. 217, is concurred in by other de. cisions in the same state, as in Wainwright's Appeal, 89 Pa. St. 220, where it appeared that the testator and the devisee unlawfully cohabited together, it being alleged that the testator had been falsely accused of seducing her many years before, and it also appearing that when the will was execated, every one but the draughtsman, an attorney, was excluded from the room when the instructions were given. It was decided that these facts were not sufficient to establish a presumption of undue influence over the mind of the testator in the testamentary act, nor to justify a verdict against the will.
When a woman makes a will in favor of her husband, knowing, when she married the devisee and when she made the will, all the facts in relation to his former matrimonial alliances, though she may not have kuown their legal effect, the fact that he had a wife living at the time of his marriage to the testatrix, and at the time of the execution of the will, is not sufficient to raise a presumption of undue influence on his part, or to invalidate the will, Will of Donnely, 68 lowa, 126. An extended note on the topic of “What In. fluence or Importunity Invalidates a Will” is appended to 8mall v. Smull, 16 Am. Dec. 257, where many cases analogous to those cited in this note are re. ferred to.
Whenever a fiduciary or confidential relation adeta between tho parties to dood, gift, contract, or the liko, the law implies a condition of superiority held by one of the parties over the other, so that in every such transaction between them by which the saporior party obtains • possible benefit, equity raises a presumption of undue influenco, and casts apon that party the burden of prod to show affirmatively his compliance with equitable requisites, and of entire faimess on his part, and freedom of the other from undue influenca: Todd v. Grove, 33 Md. 188; Connor v. Stanley, 72 Cal. 556; 1 Am. St. Rep. 84
In Atkins v. Withers, 94 N. C. 581-591, it was said: “The cases in which the law will presumo fraud, arising from the confidential relations of the
par. ties to a contract, are executors and alministrators, guardian and warda trustees and cestui que trust, principal and agent, brokers, factors, etc., mortgager and mortgzne, attorneys and clients, and to those have been added, we think very qpropriately, husband and wife. The rule is founded on the special facilities whirik, in' srch relation, the party in the superior relation has a committing Grand upon ting it the inferior sitaation; and the law, look. ing to the trailty of human nature, requires the party in the superior situa. tion to show that his action has been' jati, honorable, and honest, not so much because he has committed fraad, but that he may have done so. Under this rule, the phrases "confidential relations " and Slucjärz relations” are con. vertible terms, although the relationship of first cousin is not within either: Robins v. Hope, 57 Cal. 493; and the principle applies to every possible case in which a fiduciary relation exists as a fact; that is, where confidence is reposed on one side and the resulting superiority and influence may exist on the other: Van Bops v. Van Epps, 9 Paige, 237. Undue influence is a species of constructive fraud, which the courts will not undertake to define by any fixed principles, but its exercise will be inferred in all cases of confidential or grasi confidential relations, where the person receiving a gift or other like benefit may have so influenced the mind of the donor or grantee, by improper acts or circumvention, as to induce him to confer the benefit contrary to his deliberata judgment, reason, and discretion: Shipman v. Furniss, 69 Ala. 555.
Perhaps the best illustration of the rule is the relation of trustee and cestui que format, in its strict sense. In cases involving this relation, it is conclusively settled that the trustee cannot deal with the trust fund for his own benefit If he donc so without the consent of the cestui que truthin the transaction is presumptively invalid, regardless of his good or bad faith: Dwight v. Blackmar, 2 Mich. 330; Sheldon v. Rice, 30 Mich. 296; Hammond v. Stanton, 4 RL 65. And when he deals directly with the beneficiary, the presumption is also against him, and the burden of proof is upon him to show an adequato consideration after patting the beneficiary upon an equal footing with him. self: Spencer and Newbold's Appeal, 80 Pa. St. 317; Jones v. Smith, 33 Miss. 215; Gruva v. Waterman, 63 N. Y. 657. This rule applies with equal force to an areontor or administrator: West v. Waddill, 33 Ark. 575; Humphreys V. Bræ-lonon, 72 Ala 1; and to a guardian; for in such case undue influence te, on the ground of public policy, prima facie presumed from the peculiar relation existing betwoon the parties: Ashton v. Thompson, 32 Minn, 25; Trcbo v. Buchholz, 43 Lowa, 415. And it devolves upon the guardian to show, by the clearest proof, that he dealt with the ward exactly like a stranger, tak. ing no advantage of his influence over him, or of his superior knowledge in relation to the subject-matter of the transaction, and that the ward's act was the result of his own volition, and upon the fullest deliberation: Meek v. Perry 36 Miss. 190.
All transactions between guardian and ward, to the benefit of the
guardian, oocarring during or shortly after the period of minority, are pro sumptively void, and cannot be upheld except upon proof of the fallest de liberation on the part of the ward, and the most abundant good faith on the part of the guardian: Ferguson v. Lovery. 64 Ala 610; 25 Am. Rep. 718, and note 728; Berkmeyer V. Kellerman, 32 Ohio St. 239; 30 Am. Rep. 577; Ashton v. Thompson, 32 Minn, 25.
The rule is applicable to dealings between parent and child, and courts will carefully scrutinize them to protect either against any anduo advantage being taken by the other: Wood v. Rabe, 96 N. Y. 414.
A voluntary conveyance by a child to its parent, during minority or within a short time thereafter, and while still under the parental control, is premamptively void. The burden is upon the parent to show, in the clearest and most satisfactory manner, that it is in every particular worthy of receive ing the sanction of a court of equity: Miller v. Simonds, 72 Mo. 669, where s deed by a daughter conveying a life estate to her father was executed on the ove of her marriage, improvidently, without time for deliberation, and without any independent advice, was set aside, although the daughter testified that the father used no undue influenca to induce her to sign the deed. So in the case of a voluntary dced from a son to a father, especially if the formor is in an enfeebled state of health, casts the burden of proof on the father to show that Lo has taken no advantage of his influence or knowledge, and that the arrangement is fair and equitable: Miskey's Appeal, 107 Pa Ste 611; Bradshav v. Yates, 67 Mo. 221; Williams v. Williams, 63 Md. 371.
The same rule applies to donations made by a child to a parent recently after the child attains majority, or while he is under the constant and immo diate influence of the parent, or while his property is in the possession or under the control of the parent: Ashton v. Thompson, 32 Minn. 25.
A presumption of undue influence arises against a child in cases of gifts or sonreyances to him from his aged or infirm parent, and the burden of prool is upon the beneficiary to show the entire good faith of the transaction: Spargur v. Hall, 62 Iowa, 498; Fitch v. Reiser, 79 Iowa, 34.
Dealings between attorney and client, such as gifts, conveyances,' or contracts by the client, including securities given by him during the contingance of the relation, are carefully scrutinized in equity. A presumption of anduo influence and undue advantage by the attorney exists against him, requiring bim to assume the burden of showing the greatest fairness and rectitude in the transaction. If he fails to make such proof when seeking to aphold the transaction, equity will treat it as a case of constructive fraud: Gray v. Emmons, 7 Mich. 532; Jennings v. McConnel, 17 III. 148; Rogers v. Marshall 3 McCrary, 76; Nesbit v. Lockman, 34 N. Y. 167; Savery v. Sypher, 6 Wall 157; Donn v. Record, 63 Mo. 17; Harper v. Perry, 28 Iowa, 57. The attorney is bound to show that his client was fully informed of his rights and interests in the subject-matter of the transaction, and the nature and effect of the transaction itself, and was so placed as to be able to deal with the attorney at arm's-length: Kisling v. Shaw, 33 Cal. 425; Whipple v. Barton, 63 N. H. 613; Yeamans v. James, 27 Kan. 195.
The principles above stated as applicable to attornoy and client apply with equ force to all transactions between principal and agant: Condit v. Blackwell, 22 N. J. Eq. 481; Moore v. Mandlebaum, 8 Mich. 432; Newcomb v. Brooks, 16 W. Van 32.
From the confidential relations which exist between husband and wife, a presumption of undue influence arises in relation to any transfer of property between them, and in order to sustain a conveyance or gift by the wife to
the husband, the burden of proof is upon him to show that the transaction was freely and deliberately made, and that it was fair and proper: Boyd v. De la Montagnie, 73 N Y. 498; Farmer v. Farmer, 39 N. J. Eq. 211.
The relations between brother and sister may be of such rociprocal affoon ton and confidence as to cast apon him the burden of proof to show the os act fairness of a transaction between them by which he is benefited: Gillespie V. Holland, 40 Ark. 28
A relation of trast and confidence exists between a spiritualistio median and a believer in his alleged powers, so peculiar that whero an advantage in gained through a contract by the former against the latter, a presumption of andue influence arises against the medium, which casts the burden of proof upon him to show that the contract was obtained by perfectly fair means and froo from any undno influence whatever: Connor v. Stanley, 72 Cal. 6683 I Am. St. Rep. 84, and note; Leighton v. Orr, 44 Iowa, 679.
Where a person living in illicit sexual relations with another transfers to mach person valuable property, especially when the donor in making the gift excludes natural objects of his bounty, the transaction will bo viewed with the utmost suspicion, and the burden of proof rests on the donee to show that the transaction was the result of free volition, and not superinduced by onduo influenco: Shipman v. Purniss, 69 Ala. 555; Leighton v. Orr, 44 Iowa, 679.
A gift by an aged, weak, and infirm patient to his or her physician raises • presumption of undue influence which the physician must rebut, in order to uphold the transaction: Cadwallader v. West, 48 Mo. 483; Woodbury v. Woodbury, 141 Mass. 329; 55 Am. Rep. 479, and note. Although a contrary opinion is expressed in Audenreid's Appeal, 89 Pa St. 114, 33 Am. Rep. 731, this case is against the decided weight of authority, as shown by the note thereto, 33 Am. Rep. 736, and the cases cited supra.
The principles which govern the dealings of one standing in a confidential or fiduciary relation apply to persons who clothe themselves with a charac. ter which brings them within the range of the principle: Reed v. Petersom 91 II. 288. The rule is not limited to cases arising out of the relations which have been mentioned above, but applies in every case where there has been a confidence reposed which invests the person trusted with an advantage in treating with the person 80 confiding. In all such cases a presumption of undue influence is implied, and the burden of proof is upon the person tak. ing securities or contracts inuring to his benefit to show that the transaction is just and fair: Fisher v. Bishop, 108 N. Y. 25. Thus where one stands in relations of trust and confidence with another who is old and failing in mind, the law will presume a contract between them to have been the result of undue influence emanating from the stronger party: Cadwallader v. West, 48 Mo. 483. So one who has obtained from a woman who is old and feeblo in intellect, and who has put herself in his power in a transaction which par. ticularly concerns his interests, a mortgage as security for the debt of another, without the knowledge of her family, is compelled to show, in sup. port of the mortgage, that the woman fully understood what she was doing, and that be had not abused the confidence thus reposed in bim: Wartemberg 5. Spiegel, 31 Mich. 400. And where an aged and infirm woman, a few days before her death, which resulted from an accident, conveyed the most of her property to a young man, who stood in the relation of an adopted son to ber, and in whom she trusted, thus disinheriting her legal heirs, with whom she was friendly, and who were kept in ignorance of the transfer, the presumption of undue influence arises, and the burden of proof is upon tee to rebut the presumption: Davis v. Dean, 66 Wis. 101.
the grane to him from such dangers, he is not guilty of contributory negligence. CONTRIBUTORY NEGLIGENCE, WHAT CONSTITUTES. — An act or omission of
Whero a young man shortly after becoming of age conveyed his property for a grossly inadequato sum, whilo so ill that it was not believed that he could recover, to a woman who had beon a member of the household sino. the grantor was four months old, who bad always been his nurse, instructor, and manager of his property, and in whom ho confided, the burden of proof jo upon the grantoe to show that the transaction was fair and honest, and that the dood was not procured by undue influenco: Worrall's Appeah, 110 Pa St. 349. A conveyance by a nephew, a simple, ignorant, young man, to his uncle, an attorney at law, for an inadequate consideration, is presumptively obtained by undue influence: Hallv. Perkins, 3 Wend. 626. In Press ley v. Kemp, 16 &. C. 334, 42 Am. Rep. 635, it was held, however, that • voluntary conveyance by an agod, feeble, and unmarried woman of her property which she had previously willed to charities, to a young unmarried man, twelve days before her death, in whose family she was living and to whom she was strongly attached, and who had acted aw her agent, is not presumptively void as having been obtained through undue influence
Generally, whenever there is great weakness of mind in a person oxecut ing a conveyance of land, arising from ago, sickness, intoxication, or any other cause, although not amounting to absolate disqualification, and an in. adequate consideration, imposition or undae influence will be presumed: Moore v. Moore, 56 Cal. 89; Allore v. Jewell, 94 U, S. 506; Fishburne v. Ferguson, 84 Va. 87. So when a note is taken from an habitual drunkard of weak intellect, the burden of proof is upon the person taking it to show fair case, good consideration, and lack of undue influenco: Hale v. Brown, 11 Ala. 87. When a person who is imbecilo from habitual intoxication executes a voluntary and absolute deed of gift of all his property to his cousin, to tho exclusion of his half-sisters, a presumption of anduo influence arison, which must bo rebutted by clear proof by the grantee before the deed will be allowed to stand: Samuel v. Marshall, 3 Leigh, 667.
SMITAWIOK V. HALL AND UPSON COMPANY.
(59 CONNECTICUT, 261.) NEGLIGENOB PRESUPPOSES A DUTY OF TAKING CARE, and this, in turn, pre
supposes knowledge or its legal equivalent. MASTER AND SERVANT - CONTRIBUTORY NEGLIGENCE - DANGEROUS Posi.
TION. — A servant by changing his position at work, contrary to orders and after a warning of danger, voluntarily takes tho risks of all perile which a man of ordinary care in his place ought to have known or could reasonably have anticipated; but as to dangers arising through the master's negligence from other sources, dangers which the servant was not bound to anticipate, and of whose existence he had no knowledge, he takes no risk and assumes no duty of taking care; and if injary results
* party injured, to amount to contributory negligence, must be negligent, and in the production of the injury, it mast operate as a proximate causo
or one of the proximate causes, and not merely as a condition. MASTER AND SERVANT - RISK ASSUMED. - Where a servant has full knowl.
odge of, and is abundantly cautioned against certain sources of, danger, and voluntarily neglects such warnings, and takes the risk of such per