illegality. In the present case the bill of the complainant charges that the contract was obtained by fraudulent representations from an old man physically and mentally imbecile, and that the price agreed to be paid for the property was grossly inadequate. It may be observed that the false and fraudulent representations specifically charged in the bill are but two: that the lots bargained to be sold were of the value of $5,000, and no more, and that they were in danger of being sold for taxes. Neither of these alleged representations is supported by any evidence in the cause, and they are denied in the answer. Nor, if they had been proved, are they such representations, as if false, are fraudulent. They are not such as would reasonably have been relied upon by Graham, and they constituted no material inducement to his entering into the contract. There is no relation of confidence between the vendor and vendee. In regard to the value of the lots and their liability to sale, both parties had equal means of information: and when that is the case, a representation, though undue, will not be considered fraudulent.'

"Appropriate quotations illustrating the same principles, might also be taken from Nace v. Boyer, 30 Pa. 99, nd Hetrick's App. 58 Pa. 477, but they would swell this opinion to an inordinate length.

[24 U. S. bk. 6, L. ed. 429]; Seeley v. Price, 14 Mich. 541; Whelan v. Whelan, 3 Cow. 537.

"In 2 White & T. Lead. Cases, Eq. part 2, ed. 1877, p. 1233, it is said: 'Another and not infrequent form of undue influence is where one whose mind has been enfeebled by age or disease, or who truly or erroneously considers himself unfit for the transaction of business, enters into a negotiation with a friend or relative, which results in a transfer of his property subject to a trust or in consideration of an agreement to provide for his support. * * * From the very nature of such a transaction, confidence is reposed by one party and accepted by the other; and the conveyance will not be allowed to stand, unless the grantor proceeds understandingly, deliberately, and of his own accord, nor if it appears that the grantee gained an undue advantage at the expense of the donor, or of those on whom the property would have devolved in the ordinary course of events.'

"I would cheerfully apply the somewhat broader doctrine of these latter authorities to the case in hand, if I did not feel myself controlled by those which I have cited from our own reports. There are many circumstances which warrant the suspicion that the transfer by Hartman was not his own free act, and no direct evidence to show that it was. The testimony of Mrs. Stevens comes nearest to establishing this; but the statements of Hartman to her, after all, amount to no more than an assertion of what he intended to do. They throw little light on how that intention was produced, which always lies at the root of the question of undue influence.

"In the case of Dean v. Fuller, 40 Pa. 474, an extreme position is taken by our supreme court, which I do not believe the court, as at present constituted, if brought to the test, would again take. The decision fails to recognize, in my opinion, the relation of confidence which existed between the contracting parties; or as The conclusion of the master in his fourth said by the learned American editor of Leading finding of fact, that it was Hartman's deliberCases in Equity (Vol. 2, p. 1211), the error ate act, after mature consideration, and that he 'seems to have been in analyzing that which believed it to be the best disposition he could should have been considered as a whole. Jack-make of himself and his property, I do son's advanced age, distress and weakness, Fuller's position as a confidential friend, and that he was present at and directed the preparation of the instrument of gift, were circumstances which, in the aggregate, threw the burden of proof on him, though each of them might have been inadequate if standing alone.'

"I refer to the case mainly to show that the general leaning of our highest court has not been in the line of the cases to which counsel for plaintiffs have referred me.

"Beyond our own State somewhat similar limitations upon the equitable doctrine under consideration are to be found in Howe v. Howe, 99 Mass. 88; Harrison v. Guest, 6 DeG. M. & G. 424, and Greer v. Greers, 9 Gratt. (Va.) 332. "At the same time there are other authorities which go far to sustain the plaintiffs' case. Thus in Allore v. Jewell, 94 U. S. 511 [Bk. 24, L. ed. 264], it is said by Mr. Justice Field: 'It may be stated as settled law that, whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside.'

See also Harding v. Handy, 11 Wheat. 103

not think has sufficient support from the evidence; and I would therefore strike it out. But this makes no material difference. The specific charges of fraud and imposition, in the bill, are met and denied by the answer; and no competent proofs are adduced to overcome such denial.

"The case then stands thus: under the authorities to which I have first above referred, and others, it is established that where no fiduciary relation is shown between the contracting parties, some element of actual fraud or imposition must be proved. But the case must proceed on one or the other of these grounds. If there was any confidential relation between the parties, then on the ground of public utility the grantee is not allowed to take any benefit to himself from the transaction, without showing the entire fairness of it, and that it was the deliberate and well formed purpose of the grantor's mind after full advice from some indifferent source. The burden in such case is upon the party seeking to sustain the transfer. He must show that the benefit he will derive from it was clearly understood and intended by the grantor. It is to be supported, not as a contract, but as a gift.

"But that is not this case. There is no charge in the bill of any fiduciary relation between Hartman and Lowry at the time of the contract, or even of the deed, although the distinction between these is not material. Nor is

A transaction of this kind requires full and complete proof of fairness and honest dealing on the part of the person who is to profit by such a conveyance.

Darlington's App. 86 Pa. 512.

this made out by the proofs. The most that can be said is that out of the relations of the parties a certain amount of confidence and dependence might spring. It would be natural and proper that it should. I confess that at first I was inclined to consider this as sufficient, and so re- In the case of Boyd v. Boyd, 66 Pa. 283, no quire of the defendant a corresponding burden blood relation existed between the parties; they of proof. It is difficult to resist the thought were merely friends and acquaintances who that such a course would more nearly comport had done business for each other; and yet the with justice, and that the opposite may legalize court regarded it as a case where the beneficia fraud. But after a full consideration of the ary under the will should be called upon to asquestion, I am constrained to hold that some-sume the burden of proof and show the comthing more than this is required, to establish plete bona fides of the transaction. the confidential relation upon which the rule in equity is based. There must exist some close relationship of blood or marriage, as of parent and child, or husband and wife, or a special relation of confidence, in accordance with which one party has customarily resorted, or does at the time resort, to the other for direction and advice in business or other intimate personal affairs. In either of these cases a dependence of the one mind upon the other necessarily results, and equity will not allow that it shall be used by the one party for his own selfish ends. To guard against this it is presumed in a matter of advantage to the one that the mind of the other has been unduly influenced and controlled. "But the present case does not fall within these lines. It does not appear that the relations between Hartman and Lowry were in any way intimate prior to the time of the transfer. Hartman was not dependent upon his son-inlaw in any way; so that we have the mere relationship by marriage, out of which to imply a confidential relation. Standing by itself it does not seem to be sufficient.

"The case then falls back upon the charge of influence unduly produced by misrepresentation and fraud. While, as I have said, there are some things to arouse a suspicion of imposition upon the mind of this feeble old man, it is hardly necessary to say that the court must have something more tangible than that to act upon. Moreover, it is denied in the answer; and upon that denial the defendant has a right to stand.

In Cuthbertson's Appeal, 97 Pa. 163, the same doctrine was reasserted and very clearly defined; and the law as there settled requires an explanation from the defendant which he has not made nor undertaken to make. In Wilson's Appeal, 99 Pa. 545, the person benefited by the will was an associate and friend, but he could scarcely be supposed to have more influence than a daughter and a sonin-law. And yet the court, quoting the decision in Cuthbertson's Appeal, says: "He (the beneficiary) must make it clearly appear that the gift to him was the free and intelligent act of the testator."

A court of equity will, in favor of heirs, relieve against a contract and sale of real estate, where there has been great disparity in the mental capacities of the contracting parties; and where the inadequacy of the consideration was so gross as to leave no doubt that the vendor must have been laboring under the effect of some strong delusion in his own mind in relation to the subject; although the grantor was not, strictly speaking, a non compos mentis, and although it does not strictly appear that the bargain was induced by false and fraudulent affirmations on the part of the purchaser.

Chitty, Cont. 10th Am. ed. p. 757.

Where the vendor was a man of a weak and eccentric disposition, and at the time of the sale was without the assistance of a disinterested legal adviser, there exists in the whole case such an inequality between the contracting parties that it is impossible for the court to recognize the claim of the defendant to hold the property for anything more than the money he has ad

"The charges, therefore, in the bill upon which the case is made to depend, are not made out, and the proceedings must be dis-vanced upon it. missed.

"In accordance with the views expressed in this opinion, I will sustain the fourth and thirteenth exceptions of the plaintiffs; but this does not affect the result.

"Let a decrce be drawn dismissing the bill, in accordance with the recommendations of the master, with costs."

The assignments of error specified the action of the court in holding that a relation of confidence had not been shown to exist between the parties in this case; in holding that because the intimate relation of the parties had existed for only a short time, it could not be treated as evidence warranting the inference of undue influence; in holding that there was no adequate evidence of actual fraud in this case to set aside the conveyance; in refusing to set aside the conveyance as prayed in the plaintiffs' bill of complaint; and in dismissing the plaintiffs' bill. Messrs. H. M. Hannah and C. H. Soper, for appellants:

Buswell, Insanity, 286, note.

While the contracts of persons not idotic and not mentally diseased are not void because of weakness of understanding, yet when one undertakes to deal with such a person he is justly held to be under more than the usual obligation to abstain from deception; the court will regard such transactions with a jealous eye, and if it can see the least speck of imposition, or that the donor is in such a relation to the donee as may naturally give him an undue influence over him, in a word, if there be the least scintilla of fraud, a court of equity will interpose. Cooley, Torts, 515, 516.

Inadequacy of consideration, the presence of hard and disadvantageous stipulations, or the mere fact that a right or advantage has been given or conceded, without an equivalent, will be a sufficient warrant for the interference of equity, when the weakness of the complainant, or the position held by the respondent, makes it the duty of the one to take that care of the other which the latter is unable to take of him

The difference between the facts and circum-ed by facts. stances necessary to move a chancellor to refuse the execution of a contract, and those necessary to induce him to rescind it is: In one case interposition will be refused on the ground of improvidence, surprise or even mere hardship; on the other a court will act only on the ground of fraud, illegality or mistake.

Yard v. Patton, 13 Pa. 278; Rockafellow v. Baker, 41 Pa. 319; Edmond's App. 59 Pa. 220; Stewart's App. 78 Pa. 88; Lynch's App. 97 Pa.

had not made any claim for dower) so long as the widow should make no claim for dower, each heir should pay her annually a certain sum, etc., and that when the widow should claim dower the payments should cease; and provided that "nothing herein contained and no receipt by her (the widow) of any of the above mentioned payments shall be any bar to her application for such dower, but such payments shall be claimed as a credit on the amount of dower which may be claimed.' The widow accepted this agreement and died without having claimed dower. One of the heirs paid the widow only a part of the amount stipulated to be paid by him, and in no year paid the full sum stipulated. After the widow's death her administrator brought suit for arrearages of dower against one who had purchased a portion of said real estate from said heir. Held,

(a) That the widow did not waive her right under the law by receipt of payments under said agreement, nor was there any reason under the facts of the case why she should not recover all statutory arrears, subject to a credit as stated in the agreement.

Bill in equity filed by Charles Brodhead, as administrator of Catherine Shimer, against Stephen D. Heller to recover arrearages of dower, in a certain tract of land, of seventy-eight acres and seventy-eight perches, in Hanover and Bethlehem Townships.

The case was referred to Robert T. Jones, Esq., as master, before whom the facts appeared as follows:

Conrad Shimer died in Hanover Township April 30, 1866, intestate, leaving a widow,. Catherine, and three children, Samuel C., Asher D., and Camilla M. No letters of administration were taken out, and his estate was amicably divided among his children, who, on December 10, 1866, entered into the following agreement in writing:

"Whereas, Samuel C. Shimer, Asher D. Shimer and Camilla M. Brodhead, children and heirs at law of Conrad Shimer, deceased, have this day apportioned the real estate of the said decedent among themselves; and whereas, Catherine Shimer, widow of said decedent, has not made any claim for any dower out of said real estate, now the parties, above named, hereby agree with each other that so long as said Catherine shall make no claim for dower they will each of them pay annually to the said Catherine during life as follows, to wit: the said Samuel the sum of $200 annually; the said Ash

(b) That the contract repels an in-er the sum of $100 annually, and the said ference that the widow released the whole or any part of the amount due her, unless in case of actual payment as agreed.

(c) That as the claim in suit relates only to a separate tract now owned by the defendant, and as the rule is that each purpart is to be separately appraised in ascertaining the value of the widow's estate, the recovery herein was properly measured by one third the annual value of the rents, issues and profits of the particular land in suit, without reference to the value of other lands of the deceased husband.

(d) That the facts failed to establish an estoppel against the widow's right to assert her claim to dower in the land in suit.

(e) That said heir was incompetent to testify to matters which occurred between himself and the widow in her lifetime.

(f) That as said heir took other lands besides the tract in suit, the value of which other lands equalled that of the tract in suit, the purchaser from him (the present defendant) was only entitled to a credit of not more than one half of the amount paid to the widow by said heir.

Camilla the sum of $200 annually, the said amounts to be paid half yearly, and to be paid into the Dime Savings Bank, of Bethlehem, or such other bank as said Catherine may require, on the first Monday of January and July of each year to the credit of the said Catherine Shimer, commencing with the first Monday of January next, 1867; and nothing shall be considered a payment within the meaning of this agreement, unless the money shall have actually been deposited in such bank; and if the same shall not be paid at the days and times set by any of the parties hereto, any one of the parties, having paid his or her share, shall have authority, and is hereby authorized to bring suit in his or her own individual name as agent and for the use of the said Catherine Shimer, and recover the same as debts of like amount are recoverable by law; and this agreement shall have sufficient power and warrant for such suit; and the said Asher Shimer hereby covenants and agrees in consideration of the larger share of the estate, which he has obtained, that the said Catherine Shimer shall have the exclusive use, occupation and control of the brick house wherein she now resides without payment of rent or other charge during her life; that he will also furnish her with such flour, feed, grain, potatoes and such other farm produce as she has been accustomed to receive from the farm during the lifetime of her husband; that she shall also be permitted to take such eggs and poultry for her own use as she has been accustomed to do in the past, or keep her own poultry along with the said Asher and have them fed as heretofore; that he, the said Asher, will keep two cows for her, giving them yard and stable room and pasture them in the summer, and feed them in the winter in the same manner as he keeps and feeds his own; that he will also furnish her with a safe and comfortable horse and carriage for visiting and other

'To all bidders at the sheriff's sale of the real estate of Samuel C. Shimer:

"Take notice that I, Catherine Shimer, widow of Conrad Shimer, deceased, am entitled to and shall claim my statutory dower and thirds of such widow in the lands and tenements late of the said Conrad Shimer, deceased, and now about to be sold as the property of the said Samuel C. Shimer; that I have received no part of the said dower and thirds and claim the same from the time of my late husband's death to the time of payment thereof, and with interest thereon according to law. (Signed in German)

purposes; that he will always keep her pro-quent to the mortgage to the society, and the vided with good, dry wood, prepared for the property was advertised for sale October 11, stove, and of a quality fully equal to that which 1879, at which sale the following notice was is used in his own house, and delivered at the read: place where she was accustomed to get it during the lifetime of her husband; that her friends and visitors shall always have ready and convenient access to her house by the ways commonly used, and that stabling shall always be provided for her guests and visitors; that she shall at all times have free access to and joint use of the spring house and summer and wash kitchens as in the past, and shall in no way be restricted therein; that he will in the proper season in each year furnish her with three hogs, killed and dressed, and weighing from 250 to 300 pounds each; that he will wagon such coal as she may purchase at the most convenient depot or coal yard to her house, and have the same put in its proper place as she may properly request; that she shall also have the same portion of the garden that she has been accustomed to have, and shall have it manured as in the past, that she shall have the privilege of as much fruit as she may desire from the orchard on the farm for her own use.

"If Mrs. Shimer moves out of the house then Asher is to have the use of it until she may wish to move back.

Whenever Catherine Shimer shall claim her dower at common law then these payments and privileges shall cease, but nothing herein contained and no receipt by her of any of the above mentioned payments shall be any bar to her application for such dower; but such payments shall be claimed as a credit on the amount of dower which may be claimed. And in the event of claim being made on the 313 acres of the homestead farm, this day conveyed to Asher Shimer, for the dower of the said Catherine, the said Camilla M. Brodhead hereby agrees to pay so much thereof as may be chargeable upon $12,285 worth of said farm, valuing the woodland at the sum of $200 per acre and the farm at $150 per acre, that amount having been paid by the said Asher D. Shimer to the said Camilla M. Brodhead in consideration of her releasing her interest in said farm, and he being entitled to be relieved of any claim for dower to that extent. (Signed)

Sam. C. Shimer,
A. D. Shimer,
Camilla M. Brodhead.

Dated December 10, 1866." After entering into the above agreement the said Asher D. and Camilla M. executed conveyances to Samuel C. Shimer of six tracts of land of the estate of Conrad Shimer, including the land in question, which was worth about as much as the five other tracts combined.

Samuel C. did not comply with his agreement, having only paid to the widow $250, at different times and in smaller sums than stipulated. In the year 1870 he executed a mortgage of $6,000 to the Society of the United Brethren for Propagating the Gospel Among the Heathen. From their minutes it appeared that Samuel C. represented that there were no liens on the premises, and it was on the faith of such representations that the society gave him the money and took his bond and mortgage.

Catherine Shimer. Bethlehem, October 4, 1879." At such sale the property was purchased by Isaac Treible for the consideration of $50, subject to the mortgage of the society. December 4, 1879, Treible sold the premises, to Stephen D. Heller, the defendant, for the consideration of $1,000, subject to the aforesaid mortgage.

Heller testified at the trial that shortly before buying of Treible he called upon the widow Shimer relative to her claim for dower.

He asked her what her claim was on Sam's property for dower; and she said that she wanted nothing-that he should go to Sam, and as he made it she would be satisfied. He said he would like to buy the land but would not like to have a lawsuit, and that he intended buying the farm Sam had owned. She said there would be no lawsuit about it, and that he should buy the farm, and that her husband always said it was a good piece of property.

Heller testified that on the faith of what Mrs. Shimer said he bought the land from Treible. There was also testimony of conversation by the widow Shimer with other parties, that she would claim no dower out of any of the land which had belonged to Samuel.

Shortly after the purchase by Heller he paid the mortgage of $6,000 and the accrued interest.

The widow Shimer died May 9, 1881, never having made any demand on Heller for dower or interest. Charles Brodhead, the plaintiff and husband of Camilla M., took out letters of administration, and brought this action against Heller, to recover arrearages of dower.

The defendant contended before the master that at the time of the agreement of December 10, 1866, and the partition of lands of her deceased husband, the widow relinquished her claim to dower and accepted in lieu of such dower and as a substitute for her claims the aforesaid agreement, and that by her declarations, on the strength of which the defendant purchased the farm and paid the aforesaid mortgage, she was estopped to claim dower.

The master held that the widow was no party to the agreement between the children; that under the law she had an estate in the land which could not be devested except by a conveyance or by such conduct on her part as would amount to equitable estoppel; that the mere fact that the children agreed to pay her a In 1879 a judgment was entered against him certain annuity in lieu of dower, and that she which became a lien on such property, subse-took the money, does not in law affect her