ing to ordinary business,101 and on the other hand, a deed may be canceled as having been procured by undue influence, although executed by a person of perfectly sound mind.102 The mental condition which lies between these extremes, and in which susceptibility to undue influence may be expected, is shown in a case in Vermont, where the courts set aside a transfer of property made by a woman to secure certain alleged indebtedness, where it appeared that she was ninety years old, that her memory was seriously impaired, that she had not sufficient memory and mental vigor to understand whether she owed the debts or not, that she could not distinguish between her own debts and those of others, and allowed debts to be included in the list simply on the allegation of the creditor that they were all right, and that she was persuaded by her son, who had much influence over her.108

It is not necessary that the weakness of mind here referred to should be congenital or permanent, nor is any importance to be attached to its cause or origin. As remarked by an eminent writer, there are "cases where a person, although not positively non compos or insane, is yet of such great weakness of mind as to be unable to guard against imposition or to resist importunity or undue influence. And it is quite immaterial from what cause such weakness arises, whether it arises from temporary illness, general mental imbecility, the natural incapacity of early infancy, the infirmity of extreme old age, or those incidental depressions which result from sudden fear or constitutional despondency or overwhelming calamities; for it has been well remarked that, although there is no direct proof that a man is non compos or delirious, yet if he is a man of weak understanding, and is harassed and uneasy at the time, or if the deed is executed by him while in extremis, or when he is a paralytic, it cannot be supposed that he had a mind adequate to the business which he was about, and he might very easily be imposed upon." 104. Such a case was present

101 Ormsby v. Webb, 134 U. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 805. 102 Campbell v. Lima, 212 Mass. 11, 98 N. E. 610.

103 King v. Cummings, 60 Vt. 502, 11 Atl. 727.

104 1 Story, Eq. Jur. § 234.

BLACK RESC.-42

ed where a woman laboring under great physical and mental prostration and shock, it being the second day after the sudden and violent death of her husband, and she being pregnant, and being without any independent advice, conveyed her entire interest in her late husband's estate, worth a large sum of money, without any consideration. It was held that a bill to set aside the conveyance, stating the foregoing facts, was not demurrable though it failed to allege undue influence in so many words.105 And relief in equity has been granted on similar grounds where the conveyance attacked was shown to have been executed by a person suffering from a nervous disease which reacted upon his mental faculties and impaired his judgment and understanding,106 or by one who had recently suffered a stroke of paralysis which beclouded his mind and weakened his will,107 or by an habitual drunkard, whose indulgences had materially impaired his intellect, 108 or by a victim of the morphine habit. 109

But on the other hand, the fact that the grantor in a deed was physically feeble or infirm, far advanced in age, or suffering from illness does not give rise to any necessary presumption that his mental faculties were impaired or in any way inadequate to the business in hand. And if it is shown, on the contrary, that he was in the full possession of his memory, judgment, understanding, and will power, and that his grant was supported by an adequate consideration or by an adequate motive, such as gratitude and affection for past kindness or the well-founded expectation of future care and support, it cannot be said to have been obtained by undue influence over him.110

§ 249. Confidential Relations of Parties in General. When two persons stand in a fiduciary or confidential rela

105 Moore v. Moore, 56 Cal. 89.

106 Frush v. Green, 86 Md. 494, 39 Atl. 863.

107 Stohr v. Stohr, 148 Cal. 180, 82 Pac. 777; Drake v. Mann, 81 N. J. Eq. 201, 86 Atl. 261.

108 Rutherford v. Ruff, 4 Desaus. (S. C.) 350.

109 Disch v. Timm, 101 Wis. 179, 77 N. W. 196.

110 Reinerth v. Rhody, 52 La. Ann. 2029, 28 South. 277; Madre v. Gaskins, 39 App. D. C. 19; Lyons v. Elston, 211 Mass. 478, 98 N.

tionship to each other, that is, a relationship such that confidence is necessarily reposed in, and deference accorded to, one of them by the other, and that other possesses a corresponding influence,—any exertion of the influence so possessed will be "undue" in the contemplation of the law, if it results in a transaction which is beneficial to the dominant party and disadvantageous to the other. If such a relationship, with its corresponding authority, is shown to have existed, and if it is further shown that the bargain made was disadvantageous to the dependent or subordinate party, then a presumption of undue influence arises by operation of law, and the party seeking to retain the benefit of the transaction must assume the burden of showing that it was perfectly fair and equitable, voluntary and uncoerced, and completely understood, and this he must do by proof entirely independent of the instrument under which he may claim; and if the evidence falls short of establishing these defensive facts, equity will not hesitate to set the transaction aside.111

Within the meaning of this rule, a fiduciary or confidential relationship exists wherever a confidence is reposed on the one side and domination and influence is exerted by reason thereof on the other side.112 It does not depend on the technical relation of trustee and cestui que trust, but on the confidence accorded by the one person and the resulting influence and superiority of the other.113 But there is this important difference, that in some cases the law will conclusively presume, from the mere fact of the relationship, that

11 Nichols v. McCarthy, 53 Conn. 299, 23 Atl. 93, 55 Am. Rep. 105; McCord v. Bright, 44 Ind. App. 275, 87 N. E. 654; Hoeb v. Maschinot, 140 Ky. 330, 131 S. W. 23; Cumberland Coal & Iron Co. v. Parish, 42 Md. 598; Cadwallader v. West, 48 Mo. 483; Jones v. Belshe, 238 Mo. 524, 141 S. W. 1130; Sears v. Shafer, 6 N. Y. 268; Adee v. Hallett, 3 App. Div. 308, 38 N. Y. Supp. 273; Mullins v. McCandless, 57 N. C. 425; Baugh v. Buckles, 2 Ohio Cir. Ct. R. 498; Cooke v. Lamotte, 15 Beav. 239. On the subject of fraud practised by taking advantage of confidential or fiduciary relations, see, supra, §§ 40-51.

112 Mors v. Peterson, 261 Ill. 532, 104 N. E. 216; Boney v. Hollingsworth, 23 Ala. 690.

113 Ehrich v. Brunshwiler, 241 Ill. 592, 89 N. E. 799.

such confidence was given and such influence enjoyed, while in others no such presumption arises. To the former class of cases belong such relationships as those of trustee and cestui que trust, attorney and client, parent and child, guardian and ward, husband and wife, and perhaps some others. Where such a relation is shown, there is a natural and necessary inference that it engendered confidence on the one side and authority on the other. But in other cases, such confidence and such authority must be shown by evidence. But when this is done, the presumption that any exertion of that influence which resulted to the advantage of the party possessing it was an "undue" influence is alike in both classes of cases, in the case of an actual as well as a technical trust. Thus, it is said that relations of mutual friendship between the parties to a deed, and of social regard and esteem, are not sufficient to create a suspicion, much less a presumption, of undue influence in procuring it.114 But when the confidence is shown to have been reposed and the influence to have existed, its source will be immaterial, for a person is as much bound to act for the best interests of another who has trusted him as a friend, as if he had been appointed a trustee.115 But it is not easy to draw the line between the two classes of cases. For instance, it is ordinarily the case that brothers and sisters trust each other fully, each believing that the other would safeguard his interests as carefully as his own and would do nothing to impose upon him. But the mere existence of kinship in this degree is not held to warrant a presumption that either party exerted a dominating influence over the other. A transaction between two brothers, or two sisters, or between a brother and sister, cannot be set aside merely because it is advantageous to the one and prejudicial to the other. But if, in addition to this, it is shown that the one did actually repose special confidence in the other, and that there resulted therefrom a corresponding influence and authority, then the exertion of it to the disadvantage of the

114 Frederic v. Wilkins, 182 Ala. 343, 62 South. 518; Smith v. Curtis, 19 Fla. 786.

1.15 Turner v. Turner, 44 Mo. 535.

116

person controlled may be presumed to be an undue influence. So, in a case where it was shown that the relation between the complainant and his brothers-in-law was exceedingly intimate, and the trust and confidence which he reposed in them was such that he regarded his property and interests as entirely safe in their hands, it was held that such relation was fiduciary in character, so as to preclude the brothers-in-law from retaining the benefit of a voluntary conveyance which they induced complainant to execute to them at a time when he was much prostrated in mind and body by a recent domestic calamity, though not incapable of transacting ordinary business.117

Again, the tendency of the authorities is to hold that the relation of a physician to his patient is necessarily one of confidence, and that, while the mere fact that the grantee in a deed was the medical adviser of the grantor at the time of its execution, does not conclusively show undue influence, yet any such transaction will be regarded as suspicious and will be closely scrutinized, and even, as some of the decisions hold, the burden of proof is on the physician to show that the patient had competent and disinterested advice, or that he entered into the transaction voluntarily and with full comprehension of it.118 And the same doctrine has sometimes been extended to the relation of nurse and patient.119 So also, most persons are supposed to be susceptible to the influence and authority of their spiritual advisers and religious teachers. And it is said that the fact that a testatrix leaves a large part of her estate to a church and to its rector may raise a presumption of undue influence

116 Parker v. Hill, 85 Ark. 363, 108 S. W. 208; Odell v. Moss, 130 Cal. 352, 62 Pac. 555; Walker v. Shepard, 210 Ill. 100, 71 N. E. 422; Tomlinson v. Tomlinson, 103 Iowa, 740, 72 N. W. 664; Miller v. Worth, 89 Neb. 75, 130 N. W. 846. And see, supra, § 46.

117 Irwin v. Sample, 213 Ill. 160, 72 N. E. 687.

118 Zeigler v. Illinois Trust & Sav. Bank, 245 Ill. 180, 91 N. E. 1041, 28 L. R. A. (N. S.) 1112, 19 Ann. Cas. 127; Kellogg v. Peddicord, 181 Ill. 22, 54 N. E. 623; Viallet v. Consolidated Ry. & Power Co., 30 Utah, 260, 84 Pac. 496, 5 L. R. A. (N. S.) 663; Butler v. Gleason, 214 Mass. 248, 101 N. E. 371. And see, supra, § 49.

119 Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087; Watson v. Holmes, 80 Misc. Rep. 48, 140 N. Y. Supp. 727.