dutiful treatment of him and her general behavior towards him, does not constitute undue influence.65

§ 244. Benefit or Want of Independent Advice. The English cases favor the rule that, in every case of a gift or grant between persons occupying a fiduciary or confidential relationship, where the advantage is on the side of the one who is the trustee or the dominant party to the relationship, it must be absolutely shown that the donor or grantor had the benefit of competent disinterested advice. before concluding the transaction, or else its validity cannot be sustained. One of the English judges has said: "I take it to be a well-established principle of this court that persons standing in a confidential relation towards others cannot entitle themselves to hold benefits which those others may have conferred upon them, unless they can show to the satisfaction of the court that the persons by whom the benefits have been conferred had competent and independent advice in conferring them. This, in my opinion, is a settled general principle of the court, and I do not think that either the age or capacity of the person conferring the benefit, or the nature of the benefit conferred, affects this principle. Age and capacity are considerations which may be of great importance in cases in which the principle does not apply; but I think they are but of little, if any, importance in cases to which the principle is applicable. They may afford a sufficient protection in ordinary cases, but they can afford but little protection in cases of influence founded upon confidence." This rule has also been followed by some of the American courts."7 Thus, in a case in New Jersey, a grantor, when conveying practically all of her property to her daughter and son-in-law for their past kindness and the mere expectation of future support, was so situated as to be altogether dependent upon the grantees for proper care and attention, making their influence over her dominant. It was held that she was en

65 Andrew v. Linebaugh, 260 Mo. 623, 169 S. W. 135. 66 Rhodes v. Bate, L. R. 1 Ch. App. 257.

67 Stevens v. Shaw, 66 N. J. Eq. 116, 57 Atl. 1024; Walsh v. Harkey (N. J. Ch.) 69 Atl. 726; Harrison v. Axtell, 76 N. J. Eq. 614, 75 Atl. 1100; In re Cooper's Will, 75 N. J. Eq. 177, 71 Atl. 676.

titled to have independent counsel to protect her interests on thus parting with substantially her entire property, without any security for her future support, and to have her attention directed to the effect of the deed, and especially to the fact that the instrument was not revocable, and that after making it she would be dependent on the good will or the charity of the grantees for the rest of her life, and that, as she was not so protected, the deed was voidable.68

But the majority of the American decisions do not go to this extent. They hold that the benefit or the want of independent advice may be a very important factor in determining the validity of a deed or other instrument, but not that it is conclusive. As bearing on the question of undue influence, it may be shown that a donor or grantor was aged, infirm, mentally feeble, or illiterate, was dominated by the superior intelligence and more powerful will of the other party, was coerced or deceived, was isolated from his friends, was put in fear, anxiety, or distress of mind, was persistently importuned, or was otherwise deprived of the power of exercising an unrestricted choice. And it is on facts such as these that the case must mainly rest. But it is competent to show that the grantor or donor also lacked the benefit of good and disinterested advice, and if this further fact appears, and especially if it is shown that he was in any way prevented from seeking and obtaining such advice, then this factor will have an important bearing on the case, and may turn the scale. On the other hand, if it appears that the party executing the deed or other instrument was advised by competent third persons as to the business expediency of what he was about to do or as to the legal effect of the instrument he was about to sign, and fully understood the entire transaction, then this circum

69

68 Walsh v. Harkey (N. J. Ch.) 69 Atl. 726.

69 Connelly v. Fisher, 3 Tenn. Ch. 382; Hensan v. Cooksey, 237 Ill. 620, 86 N. E. 1107, 127 Am. St. Rep. 345; Fagan v. Lentz, 156 Cal. 681, 105 Pac. 951, 20 Ann. Cas. 221. But see Carney v. Carney, 196 Pa. 34, 46 Atl. 264, holding that want of independent advice to a parent is no objection to his deed of property to a child who has supported him for years.

71

stance may be sufficient to rebut an inference of undue influence arising out of the other circumstances of the case.T0 Thus, where a widow, who was a woman of firm character and good business capacity, and who contemplated remarriage, went with her children to the office of a notary and there executed a deed to them conveying land which the children themselves had helped to pay for, reserving to herself a life estate therein, and it appeared that the notary fully explained the effect of the deed before she signed it, and also that she had consulted a lawyer in reference to the transfer before going to the notary, it was held that the fact that the deed contained no power of revocation would not prevent the settlement from being deemed her free and voluntary act. Even the opportunity to obtain independent advice, with a warning that it will be best to seek it, may be enough to show that there was no fraud or coercion in obtaining a deed. Thus, in a case in Tennessee, it was held that a conveyance by a married woman of her realty to her brother to satisfy a default of her husband, which the brother agreed to assume, made within a day after she learned of such default, should not be set aside. as obtained by fraud and undue influence, where she fully understood the transaction, was advised by the brother to consult others in reference to it, and was warned by him that the execution of the conveyance would mean giving up her home.72 But if the advice in respect to the transaction comes from a source that is not disinterested, or is even hostile to the person to be advised, it is of course not such as the law requires, as, for instance where it is given by counsel for the party to be benefited by the transaction. And in this case it may operate strongly against the validity of the conveyance, instead of in its favor." But in general, where one has the mental capacity to contract, and no fraud

70 Vrooman v. Grafflin, 96 Fed. 275, 37 C. C. A. 475; Zeok v. Mercantile Trust Co., 194 Pa. 388, 45 Atl. 215; Chambers v. Brady, 100 Iowa, 622, 69 N. W. 1015.

71 Valter v. Blavka, 195 Ill. 610, 63 N. E. 499.

72 Maney v. Morris (Tenn. Ch. App.) 57 S. W. 442.

73 Hubert v. Traeder, 139 Mich. 69, 102 N. W. 283; James v. Groff, 157 Mo. 402, 57 S. W. 1081.

is practised upon him, he cannot plead that he acted under bad advice, as a ground for rescinding his contract."

74

§ 245. Time of Exerting Influence with Reference to Gift or Grant.-To warrant the avoidance of a gift, grant, or other transaction on the ground of its having been procured by undue influence, such influence must be shown to have existed and been exercised at the time of the execution of the deed or the making of the transaction in question.75 Thus, a grantor cannot procure the vacation of his deed on the mere ground that he reposed great confidence in the grantee, and that his influence due to former confidential relations still remained, without also showing that the execution of the deed was the result of the exertion of that influence.76 But the mere fact that the grantee was not in the room while a deed was being executed is not sufficient to show that the influence of a confidential relationship which existed between the grantor and grantee did not subsist and operate upon the mind of the grantor at that moment." But deeds executed by a father to his sons, accomplishing the same result which was achieved by the grantor's executing a will six years before, at a time when no doubt existed as to his freedom of action, will not be set aside for undue influence, notwithstanding the court may have doubts as to the weight of the evidence on the subject of the fairness of the influence exerted by the sons. 78

§ 246. Degree or Measure of Influence Required. The undue influence which will justify the avoidance of a gift, grant, or other transaction must have operated with such power and stress as to place the subject in vinculis, destroy his free agency, dominate his will to make it serve the purpose of another, and so coerce him into doing something

74 Carroll v. People, 13 Ill. App. 206. 75 Sears v. Vaughan, 230 Ill. ray, 249 Ill. 517, 94 N. E. 947;

572, 82 N. E. 881; Riordan v. MurCurtis v. Kirkpatrick, 9 Idaho, 629,

75 Pac. 760; Mallow v. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; Kline v. Kline, 14 Ariz. 369, 128 Pac. 805.

76 Banner v. Rosser, 96 Va. 238, 31 S. E. 67.

77 White v. Daly (N. J. Eq.) 58 Atl. 929.

78 Taphorn v. Taphorn, 32 Ohio Cir. Ct. R. 96.

80

which he has no wish to do, but which he is unable to refuse." Thus, mere persuasion does not amount to undue influence where it does not override the will of the person addressed, though it induces him to make a disposition of his property different from what he would otherwise have made.00 But if the effect is produced, the law is not concerned to measure the exact degree of influence exerted. No matter how slight it may be, if it does in effect deprive the subject of his freedom of choice and will, it will invalidate the acts or deeds resulting from it.81 "The extent or degree of the influence is quite immaterial, for the test always is, was the influence, whether slight or powerful, sufficient to destroy free agency, so that the act put in judgment was the result of the domination of the mind of another, rather than the expression of the will and mind of the actor?" 82

§ 247. Age and Infirmity of Grantor or Donor.-In determining whether undue influence has been exerted, it is important to take into consideration the age and physical condition of the person in question. For since it is of the

79 Conley v. Nailor, 118 U. S. 127, 6 Sup. Ct. 1001, 30 L. Ed. 112; Bowdoin College v. Merritt (C. C.) 75 Fed. 480; Stroup v. Austin, 180 Ala. 240, 60 South. 879; Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45; Shea v. Murphy, 164 Ill. 614, 45 N. E. 1021, 56 Am. St. Rep. 215; Sargent v. Roberts, 265 Ill. 210, 106 N. E. 805; Riordan v. Murray, 249 Ill. 517, 94 N. E. 947; Sears v. Vaughan, 230 Ill. 572, 82 N. E. 881; Mallow v. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; Nixon v. Klise, 160 Iowa, 238, 141 N. W. 322; Yahr v. Hynes, 159 Ky. 518, 167 S. W. 680; Kennedy v. Kennedy, 124 Md. 38, 91 Atl. 759; Somers v. McCready, 96 Md. 437, 53 Atl. 1117; Howard v. Farr, 115 Minn. 86, 131 N. W. 1071; In re Tunison's Will, 83 N. J. Law, 277, 90 Atl. 695; Howard v. Howard, 112 Va. 566, 72 S. E. 133; Delaplain v. Grubb, 44 W. Va. 612, 30 S. E. 201, 67 Am. St. Rep. 788; Erwin v. Hedrick, 52 W. Va. 537, 44 S. E. 165; Woodville v. Woodville, 63 W. Va. 286, 60 S. E. 140; Ritz v. Ritz, 64 W. Va. 107, 60 S. E. 1095; Farnsworth v. Noffsinger, 46 W. Va. 410, 33 S. E. 246; Drinkwine v. Gruelle, 120 Wis. 628, 98 N. W. 534. And see Akers v. Mead (Mich.) 154 N. W. 9. In determining whether or not a deed was obtained by undue influence, the grantor's powers of resistance to the exertion of influence, as shown by his physical and mental condition, must be considered. Youtsey v. Hollingsworth (Mo.) 178 S. W. 105.

80 Posey v. Donaldson, 189 Ala. 366, 66 South. 662.

81 Watson v. Holmes, 80 Misc. Rep. 48, 140 N. Y. Supp. 727.

82 Haydock v. Haydock, 33 N. J. Eq. 494.