on the part of the rector, so as to cast on him the burden of rebutting the inference.120 But except in the few classes of cases mentioned above, the proof must always show the actual existence of the influence alleged to have been exerted. It has been said that the relationships of mistress and servant, patient and nurse, and aunt and nephew, even when all combined, do not raise a legal presumption of undue influence.121 And the fact that the grantor lived in the grantee's family twenty years before the making of the deed, and continued to reside in the neighborhood does not show the existence of confidential relations,122 nor is that fact to be inferred from the circumstance that one of the parties had been for several years a tenant in a building owned by the other.123 So, a donor is not presumed to have been actuated by undue influence exercised in a confidential relation, from the mere fact that the donee in trust had formerly been employed by him as an agent to transact certain special business relating to the subject of the trust, and is entitled to commissions thereunder.124 And there is no presumption of undue influence from the fact that a pauper who owned a homestead conveyed it to the county in consideration of being adequately supported thereafter during life.125 § 250. Dealings Between Attorney and Client.—The relation between an attorney and his client is one of peculiar trust and confidence, and one which, the law presumes, invests the former with much influence over the latter. Hence in any business dealings between them which result in material advantage to the attorney or material detriment to the client, the burden is on the attorney to show the absence of any undue exercise of his influence, and that the client was given all the information and advice necessary 120 In re Hartlerode's Estate, 183 Mich. 51, 148 N. W. 774. And see, supra, § 50. 121 Bade v. Feay, 63 W. Va. 166, 61 S. E. 348. 122 McDonald v. Smith, 95 Ark. 523, 130 S. W. 515. 123 Kline v. Hedges, 229 Mo. 126, 129 S. W. 515. 124 Brown v. Mercantile Trust & Deposit Co., 87 Md. 377, 40 Atl. 256. 125 Scalf v. Collins County, 80 Tex. 514, 16 S. W. 314. to enable him to act understandingly.126 But if these conditions are met, a transfer of property to one's legal adviser for value received is no more to be impeached than any other. In a case in New York, the plaintiff sought to set aside a conveyance of property which he had made to his attorney pending the relation between them, alleging fraud and undue influence. But it appeared that the conveyance was an absolute transfer, made in consideration of professional services rendered; that no fraud was intended by either party; that the attorney used no threats or coercion and made no misrepresentations; that the client had full knowledge of the situation and value of the property, and the attorney fully explained to him the nature and value. of the services rendered, and the effect of the deed; that the client acted freely and voluntarily; and that a subsequent general and absolute release by the client to the attorney, executed in the presence of a third person, was given voluntarily, without fear or compulsion or the use of any fraud or deceit, and with full knowledge by the client of all the attorney's dealings with the property. And it was held that the conveyance should not be set aside.127 In another case, it appeared that a father conveyed property to a favorite son, in whose family he had lived for several years, and that the chief inducement for the conveyance was his desire to reward that son's wife for the kindness with which she had cared for him in his old age. Though he was aged and infirm, his mental capacity was fully established, and it was shown that the deed was made in pursuance of his matured and deliberate purpose. The son was a lawyer and his father's legal adviser and agent in the transaction of his business at the time the conveyance was made. But it was held that this fact, together with the fact that the grantee immediately transferred the property to his wife, was not enough to prove the exertion of undue influ 126 Thweatt v. Freeman, 73 Ark. 575, 84 S. W. 720; Faris v. Briscoe, 78 Ill. App. 242; Cooley v. Miller & Lux, 156 Cal. 510, 105 Pac. 981; Klein v. Borchert, 89 Minn. 377, 95 N. W. 215; Marden v. Dorthy, 12 App. Div. 176, 42 N. Y. Supp. 834; Sheehan v. Erbe, 77 App. Div. 176, 79 N. Y. Supp. 43. And see, supra, § 43. 127 Tragman v. Littlefield (Com. Pl.) 18 N. Y. Supp. 583. ence.128 It is also to be noted that the presumption of an attorney's undue influence in case of a contract with his client does not apply where he openly assumes a hostile attitude to his client, nor to a contract creating the relation and fixing the attorney's compensation, as, in the latter case, the relation does not exist until the contract is made, and in agreeing on its terms the parties deal at arms' length.129 § 251. Dealings Between Husband and Wife.-The rule was stated in an earlier chapter that the relation of husband and wife is held in law to be one of peculiar trust and confidence, that each owes to the other the duty of perfect fairness in any transaction between them, and that, while a contract between them is not presumptively fraudulent from the mere fact of their marital relation, yet if either complains of having been overreached, equity will scrutinize the matter with a jealous eye, and will seize upon any slight evidence of fraud or deceit or. undue influence to annul the transaction.180 But it cannot be annulled without some such evidence. There is no presumption that either of the parties is so far subject to the dictation and control of the other that any influence brought to bear in a matter of business or of property must necessarily be "undue" in the legal sense. It has been explicitly ruled that one is not dominant over his wife, as a matter of law, so as to create a presumption that any gift or grant which she makes to him results from undue influence, the question of his dominance being one of fact.131 The mere opportunity to exercise a controlling influence is not enough to prove that it was in fact exerted, and whether it is the husband or the wife who is the donor or grantor, something more must be shown, to establish undue influence, than a mere disparity in their years, in their physical health and vigor, or in their mental capacity, something, in fact, in the 128 Ball v. Ball, 214 Ill. 255, 73 N. E. 314. 129 Cooley v. Miller & Lux, 156 Cal. 510, 105 Pac. 981; Etzel v. Duncan, 112 Md. 346, 76 Atl. 493. 130 Supra, § 47. And see Jenne v. Marble, 37 Mich. 319. 131 Mahan v. Schroeder, 236 Ill. 392, 86 N. E. 97. And see Manfredo v. Manfredo (Ala.) 68 South. 157. nature of fraud." 182 And even where it is shown that undue influence was exercised by a husband over his wife to induce her to sign a deed, not to himself but to a third person, this will not vitiate the transaction if the grantee did not instigate it and had no knowledge of it.188 § 252. Dealings Between Parent and Child.—In the case of a gift or conveyance of property from parent to child or from child to parent, which is impeached as inequitable, the circumstances of the transaction should be carefully and vigilantly scrutinized by the court, in order to ascertain whether there has been any undue influence in procuring it. But there is nothing in the mere relation of the parties to make such a transfer constructively fraudulent, or to raise a presumption against its validity. On the contrary it will be presumed to be valid, and cannot be set aside without evidence that such influence was really existent and unduly exercised.134 The fact that a transfer of property from a parent to his child was without material consideration and in the nature of a gift does not, alone and of itself, raise any presumption that it was procured by the exertion of undue influence, since, in the absence of any evidence to the contrary, the parent is presumably the dominant party, and not the one influenced or practised upon. 135 And further, influence founded upon gratitude, and gained by kindness and filial devotion, is not in any sense undue; and a parent has the legal right, by deed, to 182 See Donahoe v. Chicago Cricket Club, 177 Ill. 351, 52 N. E. 351; Nowlen v. Nowlen, 122 Iowa, 541, 98 N. W. 383; Phillips v. Chase, 203 Mass. 556, 89 N. EL 1049, 30 L. R. A. (N. S.) 159, 17 Ann. Cas. 544; Standeford v. Bates, 2 Ky. Law Rep. 389. 183 Harper v. McGoogan, 107 Ark. 10, 154 S. W. 187. 184 Towson v. Moore, 173 U. S. 17, 19 Sup. Ct. 332, 43 L. Ed. 597; Jenkins v. Pye, 12 Pet. 241, 9 L. Ed. 1070; Bishop v. Hilliard, 227 Ill. 382, 81 N. E. 403; Rader v. Rader, 108 Minn. 139, 121 N. W. 393; Jones v. Thomas, 218 Mo. 508, 117 S. W. 1177; Broadus v. Monroe, 13 Cal. App. 464, 110 Pac. 158; Saufley v. Jackson, 16 Tex. 584; Purdy v. Watts, 88 Conn. 214, 90 Atl. 936; Soper v. Cisco (N. J.) 95 Atl. 1016. Contra, see Whitridge v. Whitridge, 76 Md. 54, 24 Atl. 645. See, supra, § 45. 185 Neal v. Neal, 155 Ala. 604, 47 South. 66; Hemstreet v. Wheeler, 100 Iowa, 282, 69 N. W. 518; Wright's Ex'r v. Wright, 32 Ky. Law Rep. 659, 106 S. W. 856; Sappingfield v. Sappingfield, 67 Or. 156, 135 Pac. 333. bestow the whole of his property upon one favored child, and if substantial moral grounds for such partiality are shown to exist, such a gift will not be set aside in equity without the clearest and fullest proof of undue influence, imposition, or other fraud. 186 And even if the distribution which a parent makes of his property among his children appears unreasonable or unjust, or if those entitled to receive his bounty have not been equally remembered, this is not alone sufficient to show any incapacity on his part or the exercise of undue influence or duress over him by those most favored. 187 Even where a parent, old, infirm, and illiterate, strips himself of his entire fortune, to bestow it upon one of his children to the exclusion of all the rest, and so leaves himself entirely dependent on the charity of the donee, it does not necessarily follow that the transfer must be set aside. Such a case was before the courts in California, but the suit of the parent to vacate the transfer was denied, because it appeared affirmatively that the gift was made while she was in the possession of all her faculties, and with a full understanding of all the facts and of what the effect of the transaction would be, and in the execution of a purpose long entertained to reward the devotion and services of the donee, and that she was not the victim of any artifice, contrivance, or undue influence on his part. 138 136 Kennedy v. Bates, 142 Fed. 51, 73 C. C. A. 237. See, supra, § 243. The natural influence of a child over his parent is not undue influence avoiding a deed, unless so employed as to confuse the parent's judgment or control his will. Alcorn v. Alcorn (C. C.) 194 Fed. 275. 137 Russell v. Carpenter, 153 Mich. 170, 116 N. W. 989; Mallow v. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; Hawthorne v. Jenkins, 182 Ala. 255, 62 South. 505, Ann. Cas. 1915D, 707. 138 Soberanes v. Soberanes, 97 Cal. 140, 31 Pac. 910. In this case it was said: "The facts found do not warrant the court in ascribing the deed in question to undue influence. It is apparent, if the facts stated be true, and they must be so regarded, that the plaintiff was not the dupe of the defendant's artifices, the victim of his contrivances, or in any way subjected to his sway. The defendant's position was one of high trust and confidence, binding him, both by honor and in law, not only to abstain from anything like craft or guile, but to be generous and fair, and his conduct should be ex amined with the greatest scrutiny; but there is no rule which |