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threats as are commonly considered as creating a state of duress. Thus, where one accused a young man of having embezzled his funds and represented to the mother of the person so accused that a prosecution would be begun. against the son unless she would convey certain real estate to the one making the threat, which she did, acting under extreme distress and the apparent necessity of the case, it was held that she was entitled to have the deed set aside as having been obtained by undue influence.10 But, as observed by the court in New York, there is another kind of influence more common, and that is where the mind and will of a testator (for example) have been overpowered and subjected to the will of another, so that while the testator willingly and intelligently executed the will, yet it was really the will of another, induced by the overpowering influence exercised upon a weak or impaired mind. Such a will may be procured by working upon the fears or hopes of a weak-minded person by artful and cunning contrivances, by constant persuasion, pressure, and effort, so that the mind of the testator is not left free to act intelligently and understandingly.11

Strictly speaking, "fraud" and "undue influence" are not synonymous expressions. Undue influence is in one sense a species of constructive fraud, but while there are sometimes, and perhaps usually, elements of fraud present in the case, yet undue influence may exist without any positive fraud being shown.12 Yet undue influence is closely allied to actual fraud, and, like the latter, when resorted to by an adroit and crafty person, its presence often becomes extremely difficult to detect.13 On the other hand, fraud may be perpetrated without any kind of influence undue or otherwise. Thus, to induce one to sign a deed in the belief

10 Martin v. Evans, 163 Ala. 657, 50 South. 997. 11 Marx v. McGlynn, 88 N. Y. 357.

12 In re Shell's Estate, 28 Colo. 167, 63 Pac. 413, 53 L. R. A. 387, 89 Am. St. Rep. 181. And see Gordon v. Burris, 153 Mo. 223, 54 S. W. 546; Noble v. Enos, 19 Ind. 72; Sargent v. Roberts, 265 Ill. 210, 106 N. E. 805; Boardman v. Lorentzen, 155 Wis. 566, 145 N. W. 750, 52 L. R. A. (N. S.) 476.

13 Grove v. Spiker, 72 Md. 300, 20 Atl. 144.

that the instrument is a will is a plain fraud, but it does not constitute undue influence.11

§ 239. Undue Influence as Ground for Rescission or Cancellation.-Deeds or contracts procured by the exercise of undue influence are voidable only, and not void.15 They are capable of ratification, and are prima facie good and valid until successfully impeached. The party seeking to avoid an instrument so procured must seek his remedy in a court of equity, treating the influence to which he was subjected as a species of constructive fraud. His remedy is not at law. But there is no doubt whatever that a court of equity has jurisdiction to annul, cancel, or set aside any deed or other grant obtained in this manner from a person who would not have executed it if left free to make his own decision, provided a proper and timely application is made, and supported by due proofs, by the person aggrieved.16 Thus, heirs or devisees may maintain a suit in equity to set aside a deed of land obtained from their ancestor by undue influence practised upon him." And where the execution of a deed was procured through undue influence, and a delivery was made without the grantor's assent, it is none the less voidable by reason of the fact that the grantee may not have been concerned in or had any part in the transaction.18 But the rule is not confined to cases of grants or conveyances. Any kind of a contract which is unfair and disadvantageous to one of the parties, and to which his consent was not freely given, but was forced from him by the pressure of undue influence, may be rescinded by him for that cause, and his right of rescission may be enforced in equity.19 Thus, in a case in Connecti

14 Absalon v. Sickinger, 102 App. Div. 383, 92 N. Y. Supp. 601. As to fraud perpetrated by misrepresenting the purport or contents of a written instrument, see, supra, § 71.

15 Beeson v. Smith, 149 N. C. 142, 62 S. E. 888.

16 Wagg v. Herbert, 215 U. S. 546, 30 Sup. Ct. 218, 54 L. Ed. 321; Brown v. Fickle, 135 Mo. 405, 37 S. W. 107; Du Bose v. Kell, 90 S. C. 196, 71 S. E. 371.

17 Harding v. Wheaton, 2 Mason, 378, Fed. Cas. No. 6,051; Letohatchie Baptist Church v. Bullock, 133 Ala. 548, 32 South. 58.

18 Birdsall v. Leavitt, 32 Utah, 136, 89 Pac. 397.

19 Kennedy v. Kennedy, 2 Ala. 571; Foley v. Greene, 14 R. I. 618, 51 Am. Rep. 419.

cut, it appeared that an estate was in process of administration in the probate court, and all the heirs joined in signing an agreement that the estate should be distributed in accordance with the directions given in a paper which the intestate had drafted as his will but which he had never signed. Afterwards one of the heirs sued in equity for a decree setting aside the agreement, on the ground that, being weak-minded and ignorant of his rights, he had been unduly influenced by the other heirs to sign the agreement, with the result that he had relinquished a much larger interest in the estate than he would receive under the agreement, and it was held that equity had jurisdiction of the application.20 In some states, provision is made by statute for the rescission of contracts obtained by such means, as, where it is declared that "a party to a contract may rescind the same if the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party." 21

A deed of gift, executed and acknowledged by one having legal capacity to convey, cannot be revoked at law, but may be avoided in equity for undue influence.22 And so, a trust or settlement created by deed may be annulled and set aside if procured from the grantor or settlor by undue influence exercised by the persons benefiting by it.23 And the beneficent powers of equity in these cases are most frequently exerted in those instances where the influence at work was gained by the existence of fiduciary or confidential relations between the parties, and it has been unfairly used as the means of gaining an undeserved benefit

20 Hart v. Hart, 44 Conn. 327.

21 Civ. Code Cal., § 1689; Rev. Civ. Code Mont., § 5063; Rev. Civ. Code N. Dak., § 5378; Rev. Civ. Code S. Dak., § 1283; Rev. Laws Okl. 1910, § 984.

22 Truman v. Lore, 14 Ohio St. 144.

23 Ewing v. Bass, 149 Ind. 1, 48 N. E. 241; Smith v. Boyd, 61 N. J. Eq. 175, 47 Atl. 816; Hays v. Union Trust Co., 27 Misc. Rep. 240. 57 N. Y. Supp. 801; Gibbes v. New York Life Ins. & Trust Co., 67 How. Prac. (N. Y.) 207.

or advantage.24 It has been said: "In all cases where a contract or gift is claimed adversely to the beneficiary in the trust relation, as cestui que trust, client, ward, etc., courts of equity not only require of the trustee, attorney, guardian, etc., the most ample and convincing proofs of the entire fairness of the transaction, and possession of full information, knowledge, and intentional action on the part of the beneficiary, after competent and independent advice and deliberate consideration, but courts also set aside such contracts and gifts with great freedom, either as void from their intrinsic nature, or voidable because of the absence of the required proofs of full consideration, deliberate action, independent, intelligent, and competent advice, rational design, etc. The action, gift, contract, etc., must not only be intentional and with knowledge enough on the part of the beneficiary to care for his ordinary affairs, but such intentional act and knowledge must be characterized by these other elements in its composition." 25

§ 240. Fraudulent or Unfair Purpose Essential.—In the popular sense of the word, "undue" means inordinate or disproportionate, but as used in the legal phrase "undue influence" it has a different and much stricter signification. It is here employed as denoting something wrong, according to the standard of morals which the law enforces in the relations of men, and therefore something legally wrong, something, in fact, illegal. Hence, in order to justify the intervention of equity on the ground of undue influence, it must appear that the influence exerted was wrongful, fraudulent, improper, or even, as stated in some of the cases, "malign." 2 But the existence of influence over a person

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24 Shacklette v. Goodall, 151 Ky. 20, 151 S. W. 23.

25 Nichols v. McCarthy, 53 Conn. 299, 23 Atl. 93, 55 Am. Rep. 105. 26 Caughey v. Bridenbaugh, 208 Pa. 414, 57 Atl. 821; Smith v. Kopitzki, 254 Ill. 498, 98 N. E. 953; Sears v. Vaughan, 230 Ill. 572, 82 N. E. 881; Hacker v. Hoover, 89 Neb. 317, 131 N. W. 734; Watson v. Holmes, 80 Misc. Rep. 48, 140 N. Y. Supp. 727; Boggianna v. Anderson, 78 Ark. 420, 94 S. W. 51. In North Carolina, the decisions appear to establish the rule that "undue" influence means a fraudulent influence or an influence fraudulently exerted, whereby the mind and will of the person operated on are subdued and the exercise of his free agency prevented. Myatt v. Myatt, 149 N. C. 137, 62 S. E. 887. But it is not necessary that any actual fraud, moral

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as a mere potentiality, never brought into play, is not a fact of which the law can take cognizance. It is not the existence of such influence that is important, but the exercise of it. It is not enough to show its existence, but its employment for a specific purpose and with a definite result must appear. And again, the nature of the influence can be judged only by its result. It is the end accomplished which colors the influence exerted, and entitles us to speak of it as wrongful, fraudulent, or undue, on the one hand, or as proper or justifiable on the other hand. Hence a transaction cannot be avoided on this ground unless it appears that the influence was exercised for an undue and disadvantageous purpose.2 Therefore we are to understand the word "undue" as describing not the nature or the origin of the influence existing, nor as measuring its extent, but as qualifying the purpose with which it is exercised or the result which it accomplishes. And influence is in this sense undue only when it induces a transaction which injures some one materially or which is intrinsically unfair or unconscientious. To induce a man to do that which he ought to do, or that which accords with justice, cannot be condemned by the law, no matter how the influence brought to bear upon his mind was acquired or how strenuously it was exerted. It is said that the line between due and undue influence as affecting the validity of a deed, when drawn, must be with full recognition of the liberty due to every owner of property to obey the voice of justice, the dictates of friendship, of gratitude, and of benevolence, as well as the claims of turpitude, or improper motive should exist. Bellamy v. Andrews, 151 N. C. 256, 65 S. E. 963. So that, if one person obtains a dominant influence over the mind of another, and induces him to execute a deed or other instrument materially affecting his rights, which he would not otherwise have executed, so exercising the influence obtained that the grantor's will is effaced or supplanted, the instrument is fraudulent, in spite of the fact that the person exercising the influence did so from the best or most excellent motives. Myatt v. Myatt, 149 N. C. 137, 62 S. E. 887.

27 The fact that the grantee in a deed had an influence over the grantor (her father) is inmaterial if it does not appear that she made an improper use of it to induce her father to make the conveyance. Garner v. Garner, 4 Ky. Law Rep. 823.

28 Turner v. Turner, 44 Mo. 535. And see Pritchard v. Hutton (Mich.) 153 N. W. 705.

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