is not per se voidable; nor, it is held in this country, is it. prima facie voidable. The true interpretation of the cases on this subject is said to be to the effect that there must, in such a case, be some ingredient of undue influence exercised by the parent, operating upon the fears or hopes of the child; thus showing reasonable ground to presume that the act was not perfectly free and voluntary on the part of the child.1 But the natural and just influence which a parent has over a child renders it peculiarly important for courts of justice to watch over and protect the interests of the latter. And therefore all contracts and conveyances whereby benefits are secured by children to their parents are objects of jealousy; and if they be not entered into with scrupulous good faith, and are not reasonable under the circumstances, they will be set aside, unless third persons have acquired an interest under them. Hence where a deed of gift was made by a female child just of age, and living with her parents, to a trustee for the benefit of one of those parents, and was executed under the influence of misrepresentations by the parents, and contained false recitals, the instrument was ordered to be set aside and the property to be reconveyed to the grantor.3 And the general principle under consideration applies equally to settlements and compromises made between the child and parent, while the parental influence still exists, in regard to transactions between them in the interest of the parent.4 The influence which a child may exert over a parent on the

1 Taylor v. Taylor, 8 How. 183, 201; Jenkins v. Pye, 12 Peters, 241. The fact that the child is of age however may be of no aid to the parent, as where the child is weak-minded or suffering from disease and excitement. Williams v. Williams, 63 Md. 71. Such a case calls for the greatest care on the part of the parent, in regard to the interests of the child. Ib. See also Tucke v. Buchholz, 43 Iowa, 415.

2 Williams v. Williams, 63 Md. 371; 1 Story, Equity, § 309.

8 Taylor v. Taylor, 8 How. 183. Where there has been long delay (but not too long for relief), and permanent improvements have been made by the parent on land given by the child, the deed will not be set aside, if the value of the land as it was when given, with interest, shall be made good to the child. Bradshaw v. Yates, 67 Mo. 221.

4 Ashton v. Thompson, 32 Minn. 25.

other hand by acts of filial duty and obedience can never be undue. That influence is proper which any person gains over another by acts of pure kindness and attention, and by correct conduct. In the case of a gift from a child to a parent, undue influence may be inferred from the relation itself, but never where the gift is from the parent to the child. In the former case it may be inferred that the gift proceeded from the exercise of parental authority. It is natural that the known wishes of a parent should be strongly felt by a child accustomed from infancy to implicit confidence and obedience, even after the child has attained majority; to the extent of affecting the child's freedom of will, especially if he continue to reside with the parent and to look to him or her for protection and support. But where the gift is from the parent to the child, there is no such inference. A parent does not yield obedience to the child further than affection or duty prompts; and it is in accordance with the promptings of nature that parents should make gifts to their children.2

There is indeed nothing in the relation between a grantor and his son, or grandson, or son-in-law, to raise a presumption of fraud in the case of deed granting to such persons a bounty, though the instrument was executed without the aid of legal counsel but eight days before the grantor's death, and while he was confined to his bed by sickness. In the case however of a voluntary settlement by a parent in favor of a child the deed should contain a power of revocation; in

the absence of such power the beneficiary has the burden of proving, if the transaction is impeached, that the settlor was properly advised, that he thoroughly understood the effect of omitting the power, and that he intended to execute it as a settlement.1

Notwithstanding the favor with which family settlements are regarded, they seem to stand upon no peculiar footing, when effected under the influence of one in whom a special confidence, from his familiarity and connection with the estate, is placed. Thus it has been laid down that where a father devises an estate to a son and daughters, the son, knowing its value, and the daughters not knowing it, should be scrupulously careful to apprise them, when entering upon a treaty with them for a different settlement of the estate, of its value, of their rights, and of every circumstance necessary to enable them to treat upon terms of perfect equality with him. Any positive concealment or misrepresentation on his part, calculated to put them at a disadvantage, will, it is clear, be suffi cient ground for annulling the settlement."

The principles applicable to gifts by children to their parents apply where the natural position of the parties has become reversed, and the child has become the guardian of his aged or infirm parent. Thus it has been held that a son, the principal legatee of an infirm mother, who was generally under his influence, must produce the most satisfactory evidence of the good faith of his conduct. And where the son

1 Hall v. Hall, L. R. 14 Eq. 365; Kleeman v. Peltzer, 17 Neb. 381. 2 Ashton v. Thompson, 32 Minn. 25; Hewitt v. Crane, 2 Halst. Ch. 159.

3 Hewitt v. Crane, 2 Halst. Ch. 159; Van Meter v. Jones, 2 Green's Ch.

520.

Highberger v. Stiffler, 21 Md. 352; Simpler v. Lord, 28 Ga. 52; Jacox v. Jacox, 40 Mich. 473; Thorn v. Thorn, 51 Mich. 167; Dalton v. Dalton, 14 Neb. 419; Comstock v. Comstock, 57

Barb. 453; Day v. Day, 84 N. C. 408; Belcher v. Belcher, 10 Yerg. 121; Martin v. Martin, 1 Heisk. 644; Glover v. Hayden, 4 Cush. 580; Harrington v. Grant, 54 Vt. 236; McKinney v. Hinsley, 74 Mo. 326; Deem v. Phillips, 5 W. Va. 168.

5 Simpler v. Lord, Jacox v. Jacox, Thorn v. Thorn, and Dalton v. Dalton, supra. See Spargur v. Hall, 62 Iowa, 498; Kleeman v. Peltzer, 17 Neb. 381. As to evidence to rebut the presumption

has been guilty of serious misconduct, he will have no equity to claim for outlays made by him upon the property obtained, on the annulling of the transaction.1

If no undue or improper means be used by a son to procure a voluntary deed from his father, the mere fact that the father regarded him with more favor than another child, and that the deeds were executed when the father was in some degree intoxicated, but not enough to be insensible of what he was doing, will not be sufficient to set aside the gift.2

A son employed by his father to procure a deed making a certain disposition of his property thereby assumes a fiduciary relation towards his father. Hence where a son so employed procured a deed to himself and a brother, in exclusion of the other heirs, the father being at the time aged, infirm, and in a distressed state of mind, though capable of making a deed, and there being indications that the father had been imposed upon, the sons were held to strict proof of the fairness of the transaction.3

There is no such relation of trust and confidence existing between a son-in-law and his mother-in-law, by force of the mere relationship, that in dealings between them the latter should be supposed to act upon the presumption that there would be no concealment of facts from her.4

§ 6. PHYSICIAN AND PATIENT.

A close confidential, though not a fiduciary relation exists ordinarily between a patient and his regular medical adviser, close enough to bring the relation within the class of which we are treating. There is indeed no rule of law which prevents gifts and bounties by the patient; but on the

against the legatee, see Glover v. Hayden, 4 Cush. 580.

5

8 Martin v. Martin, 1 Heisk. 644.

4 Fish v. Cleland, 33 Ill. 238; Cle

Thorn v. Thorn, supra. See Mc- land v. Fish, 43 Ill. 282. Kennan v. Pry, 6 Watts, 137.

5 Audenreid's Appeal, 89 Penn. St.

2 Belcher v. Belcher, 10 Yerg. 121.

114.

principle of correcting abuse of confidence, equity will look with favor on the claim of a patient against his medical attendant in respect of relief from gifts made to him. Relief has been granted against the liability of the maker of a promissory note, taken by his medical attendant (who had rendered no account) from a poor patient on the occasion of an accession of fortune for an amount beyond what was due for his services on the most extravagant scale of charges.1 So too an agreement obtained by a physician or surgeon from a deceased patient will be set aside, if the court be satisfied that the patient never did agree to, or intend to direct, what in the agreement he was represented as agreeing to and directing, and if his signature must have been obtained by fraud, or under such circumstances as to render it the duty of the court to protect the patient and his estate from prejudice. And the relief stands upon the general principle applicable to all the variety of relations in which dominion may be exercised by one person over another.2

The mere fact however that a vendor was afflicted with a chronic disease, and that the purchaser was his family physician, will not be sufficient to raise a presumption of fraud in the sale against the purchaser.3

§ 7. DRAFTSMAN OF WILL TAKING Benefit.

Besides the foregoing cases there are others in which there arises, from the peculiar circumstances under which an instru

1 Bellage v. Southee, 9 Hare, 534. 'Why,' said the court, was the amount of the debt which was due from the poor man to be altered, because his position in life was about to be changed? And why was the alteration to be made without any account being rendered or any explanation being offered? It is said that he intended to be liberal, and that this court would not prevent him from being so; and no doubt it would not, if such were his intention. But

intention imports knowledge, and liberality imports the absence of influence; and I see no evidence in this case either of knowledge or of the absence of influence. And, where a gift is set up between parties standing in a confidential relation, the onus of establishing it by proof rests upon the party who has received the gift.'

2 Dent v. Bennett, 4 Mylne & C. 269. 3 Doggett v. Lane, 12 Mo. 215.