Shipman v. Furniss. The main question in this case, and upon which its decision must depend, is the doctrine of undue influence as affected by unlawful and illicit relations existing between the donor or donee at the time of executing the deed of gift in question. The jurisdiction exercised by courts of chancery in setting aside voluntary donations or other contracts, in the case of parties bearing confidential relations toward each other, is a familiar and salutary one, and is based upon well-recognized principles of a sound public policy. 3 Lead. Cases in Eq. (H. & W.) 111. And while in Dent v. Bennett, 4 Myl. & Cr. 269, Lord COTTENHAM declined to make any enumeration of the particular class of persons whose mutual dealings in this regard ought to be watched with jealousy by the courts, it seems now settled that the rule is not confined to relations strictly fiduciary, but applies to "all the variety of relations in which dominion may be exercised by one person over another." Huguenin v. Basley, 14 Vesey, 273; s. c., Lead. Cases in Eq. (H. & W.) 111 (462, 486); Bayliss v. Williams, 6 Cold. 440; Kerr on Fraud and Mistake, 192, 193; Bigelow on Fraud 129, § 21. . It has been frequently, and as we think, most properly, exercised in the case of illicit relationships existing between donors and donees, and even testators and devisees, especially where they originated in an abortive attempt at a lawful marriage. For such a relationship, especially if continued under the outward conventionalities of lawful marriage, would manifestly be of a confidential nature. It is true, that as between a lawful husband and wife, the better opinion is, that a liberal donation by the one to the other will not warrant of itself a presumption of undue influence, unless there is something suspicious in the circumstances, or the nature or magnitude of the gift is such that it ought not to have been accepted. Small v. Small, 4 Me. 220; 3 Lead. Cases in Eq. 144. And it may be further admitted, that in the case of benefits received under wills, the bare proof of an unlawful cohabitation between the testator and a devisee would not alone ordinarily raise a presumption of undue influence sufficient to avoid the will. Wainwright's Ap peal, 89 Penn. St. 220. In Farr v. Thompson, Cheve (S. C.), 37, the same rule was announced as applicable to a case where a testator bequeathed all of his property to a kept mistress, to the exclusion of his nephew and other relations; but the decision is criticised and its authority doubted by the annotator of the Leading Cases in Equity, 3d vol., p. 146. Shipman v. Furniss. There can however be no question about the fact that the same rule does not apply with equal force to benefactions received under wills and deeds of gift, but that there exists a well-grounded distinction between the two classes of instruments. Stronger proof is, and manifestly should be, required to raise a presumption of undue influence in the case of a will than of a deed or contract, for the former, unlike the latter, can never take effect until the giver is dead, and therefore in a condition utterly incapacitating his further enjoyment or use of the subject of his testamentary disposition. Improper influence may be often inferred to have operated in producing gifts, where the same evidence would fail to authorize such an inference in case of a legacy or devise. Lord ELDON declared in Gibson v. Jeyes, 6 Ves. 266, that "whenever a person obtains by voluntary donation a large pecuniary benefit from another, the burden of proving that the transaction is righteous falls on the person taking the benefit," and it has always been held that the improvidence of the transaction, generally in the case of both gifts and contracts, is a cogent circumstance showing fraud or undue influence. Harvey v. Mount, 8 Beav. 439; Cooley on Torts, 515, 516; Clarke v. Sawyer, 3 Sandf. Ch. 351, 425; Jennings v. McConnel, 17 Ill. 148; 3 Lead. Eq. Cases, 141, 145; Daniel v. Hill, 52 Ala. 430. What constitutes undue influence is a question depending upon the circumstances of each particular case. It is a species of constructive fraud which the courts will not undertake to define by any fixed principles, lest the very definition itself furnish a finger-board pointing out the path by which it may be evaded. But it is evident that its exercise may be inferred in all cases of confidential, or quasi confidential, relationship, where the power of the person receiving a gift or other like benefit has been so exerted upon the mind of the donor, as by improper acts or circumvention to have induced him to confer the benefaction contrary to his deliberate judgment, reason and discretion. Bigelow on Fraud, 283; 1 Redf. on Wills, 530. The following principle, we think, is sound both in law and morals, and though a departure from the former rule, is sustained by the more modern authorities. When one, living in illicit sexual relations with another, makes a large gift of his property to the latter, especially in cases where the donor excludes natural objects of his bounty, the transaction will be viewed with such suspicion Shipman v. Furniss. by a court of equity, as to cast on the donee the burden of proving that the donation was the result of free volition, and was not superinduced by fraud or undue influence. How much further the principle may be extended, if any, it is neither our province nor purpose now to consider. This doctrine is fully sustained by Judge Cooley in his work on Torts, and receives the approval of other eminent jurists and text writers. Cooley on Torts, 515; Bigelow on Fraud, 271; 1Redf. on Wills, 532-4; 3 Lead. Cases Eq. 146. The Supreme Court of Iowa also gave it an unqualified approval in Leighton v. Orr, 44 lowa, 679, and re-affirmed it in Hanna v. Wilcox, 53 id. 547. These cases hold the doctrine that influence obtained by a woman over a man, with whom she is living in unlawful cohabitation, is undue influence, and where he makes a conveyance of valuable property to her during its continuance, on the recital of a merely good consideration, a court of equity will intervene to set it aside on the ground of having been procured by undue influence, in the absence of evidence showing it to be fair and free from fraud. In the latter case the court say: "The exercise of unlawful influence will be presumed when the parties to a deed live in adulterous relations, in the absence of proof of a lawful consideration. These rules are in accord with sound reason and legal principles. Their application will tend to restrain immorality. No paramour should be permitted to enjoy the wages of her sin, which she obtains through the generosity of her victim, stimulated by her ministry to his passions." Hanna v. Wilcox, supra. In Dean v. Negley, 41 Penn. St. 312, the same principle was applied to a devise by a testator under a will, so far as to hold, that upon an issue to determine the validity of a will, where it was shown by the contestants that the testator was living in open adultery with a woman to whose children he devised the bulk of his estate, these facts would afford a strong presumption of the exercise of undue influence upon the mind of the testator, and would authorize a verdict against the will. This case seems however not to have been followed to its full extent in the later case of Wainwright's Appeal, 89 Penn. St. 220. In Bivins v. Jarnigan, 3 Baxt. 282, the Supreme Court of Tennessee followed the doctrine announced in Dean v. Negley, supra, and set aside a deed of gift, executed by a man living in adulterous relations with the donee, by which he conveyed to her Shipman v. Furniss. a large part of his property in consideration of love and affection. The court say: "We think in such case there does arise a strong presumption that the deed was obtained by an undue influence and power the woman had obtained over him" (the donor), and for this reason the court set aside the deed. The Supreme Court of Indiana, in Kessinger v. Kessinger, 37 Ind. 341, held that an influence in procuring the execution of a will might well be considered illegitimate and undue, when exercised by a woman living on terms of illicit intimacy with the testator, which would be regarded as lawful and proper when exercised by a wife. The principle under discussion seems to have been carried still further in a recent and well-considered English case, that of Coulson v. Allison, 2 De G., F. & J. 521. Here a widower had consummated a marriage with the sister of his deceased wife, which under existing laws was illegal and absolutely null and void. It was represented to her as a matter of doubt whether her marriage was valid or not, and during the illicit relationship she made a settlement upon the reputed husband of a considerable part of her estate. On bill filed to set aside the conveyance, it was held by the lord chancellor that under the facts the onus was on the donee of showing that at the time the woman entered into the transaction she was fully, fairly and truly informed of its character, and of her legal status; and further, that such a marriage and cohabitation was not a sufficient consideration to support the conveyance, which was executed by the woman in the capacity of wife, and purported to be a post-nuptial settlement. The court ordered the deed to be delivered up and cancelled without proof of any threats, pressure or solicitation having been brought to bear on the mind of the donor. It was said by the lord chancellor: "The moving consideration of the deed was clearly the notion of a valid existing marriage. This is shown by the wording of the deed, every syllable of which proceeds upon the footing of a supposed subsisting marriage, and it is further shown by her executing it and acknowledging it in the character of a married woman. But supposing even both Nicholson and Ann Welbank (the donor and donee) to have been aware of the true state of the law, and to have nevertheless agreed to cohabit together, she being the mistress and not his wife, it seems to me the deed would then have been impeachable on the ground of immorality, for nothing Shipman v. Furniss. can well be conceived more immoral than for a woman to make over the whole of her property to a man in contemplation of continuing an illicit intercourse with him for the remainder of their joint lives." The principles above discussed apply with great force to the case under consideration. Here is a deed of gift made by a young man diseased with a consuming passion for strong drink and lewd dissipation, the excessive indulgence in which is shown to have impaired both his mind and body. It sweeps away by a stroke of his pen all of his property, including the very roof sheltering his head. The beneficiary is a common prostitute, who is preferred to the exclusion of the donor's own blood relations. And the harsh influence of a bad and daring mana rival paramour is artfully made subservient to the accomplishment of her purposes. Such transactions not only challenge the duty of the courts to watchfulness and jealousy in scanning the appliances by which they have been procured, but are persuasive to impress the judicial mind with a conviction that the will and reason and judgment of the donor were brought under illegitimate constraint in producing so unnatural a result. The chancellor so found by his decree, and we do not feel authorized under the evidence to reverse his finding. There is another view of this case not considered by the chancellor, which we think would compel an affirmance of his decree. The deed of gift, made by Joel Mathews, and which is here assailed, was executed by him either with an honest belief that his marriage was lawful and valid, or else that it was unlawful and adulterous. If the first supposition be true, the deed was executed upon the false and fraudulent hypothesis that the donee was his lawful wife, and could for this reason be avoided as having been procured by artifice, circumvention and fraud. Coulson v. Allison, 2 De G., F. & J. Eng. Ch. 521. If the other supposition be true, the donor being aware of his illicit relationship to Mrs. Shipman, the conveyance must be construed, under all the facts of the case, to have been made in contemplation of the continuance between the parties of their adulterous intercourse, and this would present the case of an executed contract upon an illegal consideration. And against such a contract a court of equity will often undertake to grant relief, where by undue influence the donee has procured its execution; for in such cases there is no room for the maxim : "In pari delicto, potior est conditio defendentis." Coul |