under such circumstances, it was well observed, was not a fair exercise of superior diligence.1

If a party voluntarily undertake to aid another in obtaining possession of his property in the hands of third persons, he thereby assumes a relation of confidence towards the party whom he proposes to assist; and if he take advantage of this relation, and by deception or improper influence induce him to part with his property without an adequate consideration, equity will afford redress.2 And it would seem on principle that the presumption of law would be against the volunteer and in favor of the other party, so as to cast the burden upon the former of establishing the fairness of the transaction. This point however was not considered by the court.3

III. KINDRED RELATIONS.

§ 1. ILLEGAL MARRIAGES OR RELATIONS.

It has recently been laid down that where one living in illicit sexual relation with another makes a large gift to the latter, especially if the giver excludes natural objects of his bounty, the transaction will be looked upon with such suspicion in equity as to cast upon the beneficiary the burden of proving that the gift was the result of free volition, and was not induced by fraud or undue influence. The same principle would doubtless apply to other transactions in favor of the party standing in the superior position, when not founded upon full value.

1 Beckett v. Cordley, 1 Brown, C. C. 357; Temple v. Hooker, 6 Vt. 240; Jackson v. Burgott, 10 Johns. 461; Chickering v. Lovejoy, 13 Mass. 51. But comp. Bradley v. Fuller, 118 Mass. 239. 2 Harkness v. Fraser, 12 Fla. 336. 3 Further as to information volunteered see Kimber v. Barber, 8 Ch. D. 56, C. A., stated ante, p. 263.

Shipman v. Furniss, 69 Ala. 555, on authority of Leighton v. Orr, 44 Iowa, 679; Hanna v. Wilcox, 53 Iowa, 547; Dean v. Negley, 41 Penn. St. 312; Wainwright's Appeal, 89 Penn. St. 220; Bivins v. Jarnigan, 3 Baxt. 282; Kessinger v. Kessinger, 37 Ind. 341; Coulson v. Allison, 2 De G., J. & F. 521.

The existence of an unlawful relation between the testator and the object of his bounty at the time of the execution of the will is considered sufficient to raise a presumption of undue influence against the beneficiary, where there are natural objects of his bounty who are thus pushed aside.1 But the bare proof of cohabitation between a testator and devisee or legatee appears to be insufficient to raise such a presumption of undue influence as to avoid the gift.2 The improvidence of the act, on the other hand, is a cogent fact looking towards fraud or undue influence.3

In England the marriage of a widower with the sister of his deceased wife is not lawful; and a conveyance obtained without full consideration by a widower so marrying, without advice to the sister-in-law in regard to the character of the act and her legal status, is voidable at the suit of the latter. And the burden of proof is upon the widower to show that, at the time of entering into the transaction, the lady was fully, fairly, and truly informed. This principle is probably applicable to such transactions in all cases of illegal marriage.

§ 2. COTENANTS: TENANTS FOR LIFE.

Tenants in common of property, not jointly engaged in making purchases and sales, do not stand in a relation of trust or confidence towards each other with reference to the common property; and they may deal with each other for the purchase of the entire ownership thereof, as if they were owners of separate property.5 Thus a tenant in common of a vessel, in contracting with his cotenant for the purchase of his share at a certain price, is under no legal obligation to

312.

1 Dean v. Negley, 41 Penn. St. 425; Jennings v. McConnel, 17 Ill. 148; Daniel v. Hill, 52 Ala. 430; Shipman v. Furniss, 69 Ala. 555.

2 Wainwright's Appeal, 89 Penn. St. 220; Shipman v. Furniss, 69 Ala. 555. 3 Harvey v. Mount, 8 Beav. 439; Clarke v. Sawyer, 3 Sandf. Ch. 351,

4 Coulson v. Allison, 2 De G., J. &

F. 521.

5 Matthews v. Bliss, 22 Pick. 48.

disclose that a third person had previously agreed with him to purchase the whole of the vessel at a higher rate.1

Again there is no fiduciary or confidential relation between. a tenant for life and the remainderman; and hence the purchase of an estate in remainder or reversion by a tenant for life, though it may be open to objection, is not to be impeached on general principles.2 But it is the duty of a tenant for life to keep down interest on mortgages upon the estate, and of course to refrain from deception upon such matters towards the remainderman. It seems that such tenant could not lawfully collude with a stranger, procure him to join in a contemplated fraud and purchase the mortgage, to go through the form of foreclosure, and then convey the property to the tenant, and so cut off the remainderman. It is clear at all events that if the tenant for life was executor of the late mortgagor and owner of the estate, he could not, by such practice, destroy the remainder; and this even though he had never qualified as executor, especially where he had taken possession and paid off the other debts of the estate, having sufficient to pay off the mortgage also. But of course if there were no collusion or other fraud, the mortgage might be purchased and foreclosed by a stranger and the property then conveyed to the life tenant; or the same might be done by the mortgagee.

4

§ 3. EXPECTANT HEIRS.

Generally speaking, a contract cannot be avoided on the ground that advantage has been taken of distress, when the advantage, if any, depended upon subsequent contingencies, the result of which must have been equally uncertain to each

1 Ib.

2 Lloyd v. Johnes, 9 Ves. 37; Dicconson v. Talbot, L. R. 6 Ch. 33. But quare whether the life tenant may not be bound to communicate to the re

mainderman facts in regard to the value Dicconson v. Talbot, of the estate.

supra.

3 Morse v. Bassett, 132 Mass. 502. 4 Ib.

party at the time of the contract.1 The case of an expectant heir, dealing for his expectancy during his father's life, is an exception. To that class of persons equity has extended a degree of protection approaching nearly to fixing an incapacity to bind themselves by any contract.2

Lord Eldon has declared it to be clearly established that, if a person has dealt with an heir apparent, for interests of which he is not in present possession, equity will extend to the heir, with reference to those so dealing with him, the benefit of the principle that it does not rest with him to show that the bargain was unreasonable and improvident, but on the other party to show that it was reasonable. And he held that where the dealing was substantially for the expectation of an heir, a colorable disguise of the character of the bargain, such as including a small present possession, would not avail the purchaser. Relief in these cases is given on grounds of inadequacy.

In an English case it appeared that a reversionary interest, worth at least £1,900, was bought for £1,700. The reversioner was a man under twenty-three years of age, somewhat straitened in circumstances, and very desirous of obtaining money; but there was no evidence of fraud. The sale was however set aside.5

It has accordingly been said by an eminent English judge that it is incumbent upon those who have dealt with an expectant heir relative to his reversionary interest to make good the bargain by showing that a full and adequate consideration was paid. And though some doubt has been

1 Ramsbottom v. Parker, 6 Madd. 6; Paine v. Meller, 6 Ves. 352; Pritchard v. Ovey, 1 Jac. & W. 403; Revell v. Hussey, 2 Ball & B. 287; Gowland v. De Faria, 17 Ves. 20, 25; 1 Hovenden, Fraud, 497.

2 Chesterfield v. Janssen, 2 Ves. 125, 157. See Peacock v. Evans, 16 Ves. 514; Marsack r. Reeves, 6 Madd.

109; Fox v. Wright, ib. 112; Gwynne v. Heaton, 1 Brown, C. C. 9.

3 Davis v. Marlborough, 2 Swanst. 108, 139.

4 Ib. p. 154.

5 Edwards v. Browne, 2 Coll. C. C. 100.

6 Sir William Grant, in Gowland v. De Faria, 17 Ves. 20, 24.

suggested in regard to the correctness of this principle,1 it appears to express the established rule of equity.2 But by this rule is meant, not the valuation which may be set upon the interest by actuaries on the tables of mortality, but the fair market value at the time of dealing.3 The rule itself has recently been changed by statute in England; and it is now provided in that country that no purchase made bona fide, and without fraud or unfair dealing, of any reversionary interest in real or personal property, shall be opened or set aside merely on the ground of undervalue. The commonlaw rule still prevails generally in America.5

The application of this rule is not prevented either by the fact that the transaction was a charge and not a sale, or that the expectant heir was a person of mature age, or that he perfectly understood the nature and extent of the transaction. Nor is it necessary for the heir to show that he was in pecuniary distress at the time. That fact is assumed from the circumstance of his having dealt with another upon such a footing; and the assumption that the person advancing the money has possibly taken advantage of that distress is the reason why the courts throw upon him the burden of proving that the bargain was reasonable. When however the transaction is set aside for mere inadequacy, the proof failing to disclose actual fraud, the conveyance will be decreed to stand as a security for the money paid, and interest. The suit in such case is considered as in the nature of a bill of

1 Sir Knight Bruce in the course of the argument in Edwards v. Browne, 2 Coll. C. C. 100, 104; Sir John Leach in Hinksman v. Smith, 3 Russ. 433,

435.

Lead. Cas. in Equity, 580 (3d Am. ed.). It is however held in Virginia that where there is no actual fraud, and no fiduciary relation between the purchaser of a reversionary interest and his vendor, mere

2 Aldoborough v. Trye, 7 Clark & F. inadequacy of consideration is not suffi436, and notes, Am. ed.

cient to avoid a sale; unless indeed it be so great as to shock the moral sense. Mayo v. Carrington, 19 Gratt. 74; Cribbins v. Mark wood, 13 Gratt. 495.

Bromley v. Smith, 26 Beav. 644.