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followed with proof showing that undue influence was acquired by her in consequence, and that it existed at the time that the will was executed: Tingley v. Cowgill, 48 Mo. 291. The presumption that undue influence was exerted by a mother on the testatrix is not raised, where it appears that the latter had been obliged, by her husband's cruelty, to leave him, and return to her mother's house, where she died, leaving a will making the mother her sole legatee, and desiring her to have the care and custody of the testatrix's infant child in preference to the father: Will of Andrews, 33 N. J. Eq. 514.
Inequality, or even injustice, towards some of the testator's children, in the amounts given them by the will, does not raise the presumption of undue influence. It is not raised by proof of interest and opportunity alone: Turnure v. Turnure, 35 N. J. Eq. 437. Nor does such presumption arise from the fact that the testator was on his death-bed, surrounded by certain of his children, who were benefited by his will, while another child, who is the contestant, was absent: Bundy v. McKnight, 48 Ind. 503. The facts that the testatrix was eighty-one years of age at the time of the execution of the will, and that she thereby gave to her daughter, with whom she and her husband had lived for more than twenty years, a larger share of her estate than she gave to her other daughters, although such legatee and her husband had received compensation for taking care of the testatrix's husband, who died before her, is not sufficient to raise the presumption of undue influence by such daughter over the testatrix: Kise v. Heath, 33 N. J. Eq. 239. So where a mother gave nearly all of her property to one of two sons, by will, at a time when she had resentment against the other son, because of a business transac tion between them, and the son receiving the bulk of her estate was her busi. ness adviser and amanuensis, and gave instructions for the drawing of the will, and aided her in obtaining it from the attorney who drew it, it was decided that in the absence of proof of threats, restraint, or coercion of any kind, or of importunity or persuasion, inducing her to make the will, the presumption of undue influence was not raised: Dale v. Dale, 36 N. J. Eq. 269.
The services of a friend or relative of a testator may be lawfully urged as an argument to persuade him to the giving of a legacy, without raising the presump. tion of undue influence. Something is due to the dictates of humanity, and it must not be said of the child who attempts to soothe the last sufferings of a parent, that he is guilty of imposition, even if the allegation is made by those who have shielded themselves from suspicion of influence by carefully abstaining from offices of affection: Estate of Williams, 13 Phila. 302. So mere proof of earnest solicitations on the part of such beneficiaries in procuring a will to be in their favor will not raise such presumption: Wait v. Breeze, 18 Hun, 403; since motives of natural affection and gratitude on the part of the tes tator, and solicitations or arguments which appeal to such motives, do not constitute undue influence: Will of Jackman, 26 Wis. 104; Will of Gleespin, 26 N. J. Eq. 523; McCulloch v. Campbell, 49 Ark. 367, where it was decided that the beneficiaries under the will, having by kind offices and congenial intercourse acquired considerable influence over the testatrix, and having requested her to make provision in her will in their favor, is not sufficient to establish the presumption of undue influence.
It has been often decided that the mere existence of an undue or improper influence operating, but not exercised by the person possessing it, upon the mind of the testator when he executes his will is not sufficient to raise a legal presumption of undue influence sufficient to invalidate the will. It is not the existence, but the exercise, of an improper influence in the very act of making the will which invalidates it. This rule is applied where illicit
relations have existed between the testator and the beneficiary: Sunderland v. Hood, 84 Mo. 293; Wainwright'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 lawful wife of another, and though he excluded his brother and sister from taking under his will, does not authorize an instruction that the law presumes undue influence on the part of the devisee, and that, in the absence of contrary proof, the jury must find against the will. Undue influence cannot be presumed from the act of unlawful cohabitation: Porschet v. Porschet, 82 Ky. 93; 56 Am. Rep. 880. So in an issue of devisavit vel non on the allegation of undue infinence by the mother of an illegitimate child, the unlawful cohabitation of the mother with the testator is not, of itself, sufficient evidence from which a jury 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 undue influence, unless it appears that such influences were exerted in restraint of the will of the testator, and prevented him 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 Ill. 376, where it is determined that if the devisee has had improper intercourse 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 influences 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 alluded 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 undue 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, 41 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 decisions 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 executed, 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 known 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 Iowa, 126. An extended note on the topic of "What Influence or Importunity Invalidates a Will" is appended to Small v. Small, 16 Am. Dec. 257, where many cases analogous to those cited in this note are re. ferred to.
Whenever a fiduciary or confidential relation exists between the parties to a deed, gift, contract, or the like, 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 superior party obtains a possible benefit, equity raises a presumption of undue influence, and casts upon that party the burden of proof to show affirmatively his compliance with equitable requisites, and of entire fairness on his part, and freedom of the other from undue influence: 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 presume fraud, arising from the confidential relations of the parties to a contract, are executors and administrators, guardian and ward, trustees and cestui que trust, principal and agent, brokers, factors, etc., mortgagor and mortgage, attorneys and clients, and to those have been added, we think very appropriately, husband and wife. The rule is founded on the special facilities which, in' srch relation, the party in the superior relation has of committing fraud upon him in the inferior situation; and the law, looking to the frailty of human nature, requires the party in the superior situa tion to show that his action has been iatr, honorable, and honest, not so much because he has committed fraud, but that he may have done so." Under this rule, the phrases "confidential relations" and "fiduciary relations" are convertible terms, although the relationship of first cousin is not, within either: Robins ▼. 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 Epps 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 quasi 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 deliberate 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 drum, 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 does so without the consent of the cestui que trust, 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 R. L. 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 adequate consideration after putting the beneficiary upon an equal footing with him. self: Spencer and Newbold's Appeal, 80 Pa. St. 317; Jones v. Smith, 33 Miss. 215; Graves v. Waterman, 63 N. Y. 657. This rule applies with equal force to an executor or administrator: West v. Waddill, 33 Ark. 575; Humphreys v. Burleson, 72 Ala 1; and to a guardian; for in such case undue influence
, on the ground of public policy, prima facie presumed from the peculiar relations existing between the parties: Ashton v. Thompson, 32 Minn. 25; Tucke v. Buchholz, 43 Iowa, 415. And it devolves upon the guardian to show, by the clearest proof, that he dealt with the ward exactly like a stranger, taking 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, occurring during or shortly after the period of minority, are pre ́sumptively void, and cannot be upheld except upon proof of the fullest deliberation on the part of the ward, and the most abundant good faith on the part of the guardian: Ferguson v. Lowery, 54 Ala. 510; 25 Am. Rep. 718, and note 728; Berkmeyer v. Kellerman, 32 Ohio St. 239; 30 Am. Rep. 577; Ashton ▼. 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 undue 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 presumptively void. The burden is upon the parent to show, in the clearest and most satisfactory manner, that it is in every particular worthy of receiving the sanction of a court of equity: Miller v. Simonds, 72 Mo. 669, where a deed by a daughter conveying a life estate to her father was executed on the eve 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 influence to induce her to sign the deed. So in the case of a voluntary deed from a son to a father, especially if the former is in an enfeebled state of health, casts the burden of proof on the father to show that he has taken no advantage of his influence or knowledge, and that the arrangement is fair and equitable: Miskey's Appeal, 107 På. St. 611; Bradshaw 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 immediate 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 conveyances to him from his aged or infirm parent, and the burden of proof 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 continuance of the relation, are carefully scrutinized in equity. A presumption of undue influence and undue advantage by the attorney exists against him, requiring him to assume the burden of showing the greatest fairness and rectitude in the transaction. If he fails to make such proof when seeking to uphold the transaction, equity will treat it as a case of constructive fraud: Gray v. Emmons, 7 Mich. 532; Jennings v. McConnel, 17 Ill. 148; Rogers v. Marshall, 3 McCrary, 76; Nesbit v. Lockman, 34 N. Y. 167; Savery v. Sypher, 6 Wall 157; Donn v. Record, 63 Me. 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 attorney and client apply with equal force to all transactions between principal and agent: Condit v. Blackwell, 22 N. J. Eq. 481; Moore v. Mandlebaum, 8 Mich. 432; Newcomb v. Brooks, 16 W. Va. 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 reciprocal affection and confidence as to cast upon him the burden of proof to show the exact fairness of a transaction between them by which he is benefited: Gillespie ▼. Holland, 40 Ark. 28.
A relation of trust and confidence exists between a spiritualistio medium and a believer in his alleged powers, so peculiar that where an advantage is gained through a contract by the former against the latter, a presumption of undue 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 free from any undue influence whatever: Connor v. Stanley, 72 Cal. 556; 1 Am. St. Rep. 84, and note; Leighton v. Orr, 44 Iowa, 679.
Where a person living in illicit sexual relations with another transfers to such person valuable property, especially when the donor in making the gift excludes natural objects of his bounty, the transaction will be 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 undue influence: Shipman v. Furniss, 69 Ala. 555; Leighton v. Orr, 44 Iowa, 679.
A gift by an aged, weak, and infirm patient to his or her physician raises a 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 character which brings them within the range of the principle: Reed v. Peterson, 91 Ill. 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 so confiding. In all such cases a presumption of undue influence is implied, and the burden of proof is upon the person taking 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 feeble 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 he had not abused the confidence thus reposed in him: Wartemberg v. 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 her, 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 the gran. tee to rebut the presumption: Davis v. Dean, 66 Wis. 101,