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Nevertheless, if undue influence is established by proof, the courts will just as readily grant relief in the case of a transfer from parent to child as in any other case. Such influence must ordinarily be shown by indirect and circumstantial evidence. But among the facts pertinent to be shown and tending to establish it are the following: That the parent was far advanced in age, and therefore more disposed to be compliant and yielding; that he was accustomed to rely upon the advice and grant the requests of the child to whom the property was given; that he was at the time in feeble health, or that his mental faculties were impaired; that he did not fully understand the nature of his act or its results in law; that he was cowed by threats or filled with anxiety by representations made to him; that he was wearied by continued importunity; that he was deprived of the benefit of independent advice, or excluded from the society of those who might have warned him in time; and that the grant was made without any consideration at all or upon a grossly inadequate consideration.139

A gift or grant from a child to its parent is regarded

creates a disability to take a bounty under the circumstances narrated. Transactions of the kind in question should be thoroughly sifted, but a voluntary deed, free from any imputation of undue influence, executed by a mother with her eyes open, cannot be set aside merely upon the ground that an honorable man would not accept a gift which strips his mother of all her property and leaves her dependent upon the charity of others. A person in possession of all his faculties has a right to dispose of all his property as he sees fit, upon the principle stated by Lord Nottingham,-that if he will improvidently bind himself up by a voluntary deed, he need not expect the court to break the fetters put upon himself by his own folly. To hold that gifts voluntarily made, and with full knowledge of all the facts and of the nature and effect of the transfer, should be set aside because the donor had divested himself of his property, would be to establish a rule that no man can make a voluntary disposition of his estate except by will."

139 Brummond v. Krause, 8 N. D. 573, 80 N. W. 686; Deem v. Phillips, 5 W. Va. 168; Boswell v. Boswell, 20 Ky. Law Rep. 118, 45 S. W. 454; Forrestel v. Forrestel, 110 Iowa, 614, 81 N. W. 797; Edwards v. Edwards, 14 Tex. Civ. App. 87, 36 S. W. 1080; Le Gendre v. Byrnes, 44 N. J. Eq. 372, 14 Atl. 621; Soberanes v. Soberanes, 97 Cal. 140, 31 Pac. 910; Todd v. Grove, 33 Md. 194; Highberger v. Stiffler, 21 Md. 352, 83 Am. Dec. 593; Richards v. Donner, 72 Cal. 207, 13 Pac. 584. But see Marking v. Marking, 106 Wis. 292, 82 N. W. 133.

somewhat differently, and particularly where the donor or grantor is very young and inexperienced, being still a minor or having recently attained majority. A transaction of this kind is sometimes denounced as prima facie fraudulent, and at any rate, it must, if impeached, be subjected to the severest scrutiny. It is a fair presumption that a young person so situated is very susceptible to the influence of a parent, and any exertion of that influence to the detriment of the child's interests would certainly be undue. A gift or grant so made may be sustained if founded on an adequate consideration, or if shown to be a proper family arrangement and for the best interests of the child. But if it appears to have been procured by the dominating influence of the parent, by the ascendancy of a strong mind over a weak will, by the exercise of parental command and authority, by threats or misrepresentations, or by any other sinister means, equity will not hesitate to set it aside, and will act the more readily if it appears that the child was without the benefit of competent and disinterested advice.140

There are some other domestic relations, analogous to those of parent and child, where the intimacy of the parties may give rise to a suspicion that a gift or grant was procured by undue influence, such, for instance, as the relation one may have with his grandchildren, or with a stepson, or a son-in-law. But there is no presumption of influence or of its unwarranted exercise growing merely out of a relation of this kind. It must first be shown that trust and confidence did actually exist, and to such a degree as might be expected between the closest of kin, and if this is established, then the same rules and the same presumptions will apply which are of weight in determining the question in case of a transfer between parent and child."

141

140 Cooley v. Stringfellow, 164 Ala. 460, 51 South. 321; Sayles v. Christie, 187 Ill. 420, 58 N. E. 480; Eighmy v. Brock, 126 Iowa, 535, 102 N. W. 444; Fritz v. Fritz, 80 N. J. Eq. 56, 83 Atl. 181; Lockhart v. Buckner, 33 Ky. Law Rep. 678, 110 S. W. 850; Jurgenson v. Dana, 81 Misc. Rep. 431, 143 N. Y. Supp. 67; Lane v. Reserve Trust Co., 30 Ohio Cir. Ct. R. 367.

141 Tipton v. Tipton, 118 Tenn. 691, 104 S. W. 237; Smith v. Lamb, 87 Ark. 344, 112 S. W. 884; Hoeb v. Maschinot, 140 Ky. 330, 131 S. W. 23.

§ 253. Burden of Proof and Evidence.-Primarily, the person alleging that a contract, deed, gift, or will was procured through the exercise of undue influence has the burden of proving that fact.142 But when the evidence shows the existence of confidential or fiduciary relations between the parties, or when it is certain from all the relations existing between them that they do not deal on equal terms, but that there is a superiority or dominance on one side, and the advantage of the bargain is on that side, then the burden of proof shifts, and it is incumbent on the party gaining the advantage to show affirmatively that the transaction between them was entered into fairly, openly, voluntarily, and with full understanding of the facts.148 As to the particular facts to be shown, it is stated that a case of undue influence is made out when it is shown by clear and satisfactory evidence (1) that the person in question was subject to such influence, (2) that the opportunity to exercise it existed, (3) that there was a disposition to exercise it, and (4) that the result appears to be the effect of such influence.1 The proof must be clear and convincing. A finding of undue influence cannot be rested on mere surmise or suspicion, nor on inferences drawn from inconsequential facts, but can be based only on material facts established and inferences which fairly and convincingly lead to the conclusion of undue influence.145 Thus, the mere suspicion that because a son had the opportunity to advise his parents with respect to the disposition of their property, and the disposition made was to some extent in his

142 Posey v. Donaldson, 189 Ala. 366, 66 South. 662; Killian v. Badgett, 27 Ark. 166; Britton v. Esson, 260 Ill. 273, 103 N. E. 218; Kellogg v. Peddicord, 181 Ill. 22, 54 N. E. 623; Appeal of Coombs, 112 Me. 445, 92 Atl. 515; Holmes v. Hill, 22 Neb. 425, 35 N. W. 206; Briggs v. Briggs (R. I.) 92 Atl. 571.

143 Cowee v. Cornell, 75 N. Y. 91, 31 Am. Rep. 428; Ballouz v. Higgins, 61 W. Va. 68, 56 S. E. 184; Mors v. Peterson, 261 Ill. 532, 104 N. E. 216; Horner v. Bell, 102 Md. 435, 62 Atl. 736; Kensett v. Safe Deposit & Trust Co., 116 Md. 526, 82 Atl. 981; Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087; Mott v. Mott, 49 N. J. Eq. 192,

22 Atl. 997.

144 In re Skrinsrud's Will, 158 Wis. 142, 147 N. W. 370.

145 Hills v. Hart, 88 Conn. 394, 91 Atl. 257; Watson v. Holmes, 80 Misc. Rep. 48, 140 N. Y. Supp. 727.

favor, he procured the making of the conveyances, is not enough to warrant the conclusion that he exercised undue influence over them.148 Again, it is not enough to show that the mind of the person in question was subject to the dominion or ascendancy of another mind, and was, in general, unduly subject to be influenced and controlled by that other. But such undue influence must be shown to have been exerted in the very act or transaction brought in question, and to have been the cause or inducement which brought it about.147 In general, as bearing on the question of undue influence, the relationship of the parties to each other should be taken into consideration, as well as the conduct of the one to the other, the physical and mental condition of the person whose act is in question, and the character of the transaction.148 Where the act impeached was a transfer of property purporting to be founded on a consideration given, the fact that the consideration was grossly inadequate, or that the result was very advantageous to one of the parties, may be put in evidence. It will not be conclusive, but it is relevant on the questions of mental capacity and undue influence.149 But the fact that a deed recites a money consideration, in addition to the consideration of love and affection and of services rendered, whereas in fact no money was paid, is not sufficient to show undue influence, especially where the parties were ignorant as to what constitutes a valid consideration in law. 150 Again, the circumstance that a person, in disposing of all or the greater part of his property greatly favors one of his relations, excluding others who might be supposed to

146 Slaughter v. McManigal, 138 Iowa, 643, 116 N. W. 726. 147 Monroe v. Barclay, 17 Ohio St. 302, 93 Am. Dec. 620; Brownfield v. Brownfield, 43 Ill. 147. But in a case in Kentucky, where it appeared that the grantee in a deed was very assiduous in his attentions to the grantor, his aged father, and that his influence over him was considerable, and that he generally obtained whatever he wanted from his father, this was held sufficient to show undue influence. McGuire v. McGuire, 11 Bush (Ky.) 142.

148 Dingman v. Romine, 141 Mo. 466, 42 S. W. 1087; McKissock v. Groom, 148 Mo. 459, 50 S. W. 115.

149 Moehlenpah v. Mayhew, 138 Wis. 561, 119 N. W. 826; Burroughs v. Jenkins, 62 N. C. 33.

150 Nichols v. King, 24 Ky. Law Rep. 124, 68 S. W. 133, 1114.

have equal claims upon him, may well raise a suspicion of undue influence, but is not sufficient by itself alone to prove such influence.151 And the existence of meritricious relations between a testator and a person benefiting by his will, and the fact that the will is unnatural, do not alone establish undue influence, where there was no mental infirmity on the part of the testator and no proof of domination over him by the beneficiary.152 And so, the fact that a contract by which a father gave the use of valuable property to one of his sons without compensation was drawn by an attorney other than the one preferred by the father does not warrant the conclusion of fraud or undue influence in the execution of the contract.153

151 Fitzpatrick v. Weber, 168 Mo. 562, 68 S. W. 913. supra, § 243.

152 In re Ewart's Estate, 246 Pa. 579, 92 Atl. 708.

And see,

153 Wright's Ex'r v. Wright, 32 Ky. Law Rep. 659, 106 S. W. 856.

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