another for life, the devisee does not stand in the position of trustee for the annuitant, and he may purchase the annuity at a profit.1 So a cestui que trust may devise property to his trustee, and there is no presumption against such gifts.2 A cestui que trust may purchase the trust property or other property of the trustee, and the purchase will be good; at least the trustee cannot set it aside. But sales to a cestui que trust involving an investment of the trust fund, or any dealing in relation to it, may be avoided by the cestui que trust.*

§200. Conveyances from wards to guardians are investigated with more severity by courts than contracts between parent and child, for the reason that there is not that family relationship and affection which sustain and uphold family settlements. The relation between guardian and ward is one of great influence over the ward, and is generally founded upon the pecuniary relation between them. While the relation actually subsists, no contracts can be made. But if a contract or conveyance is made by the ward to the guardian just after attaining his property, and before a full settlement is made, and while the influence of the guardian is still in full force, courts will examine it in all its aspects; and the guardian claiming under such a conveyance must satisfy the court that the transaction was fair and proper, and that it did not proceed from undue influence, or from any fear, hope, or other unworthy motive induced in the mind of the ward by the

1 Powell v. Murray, 2 Edw. 636.

2 Stump v. Gaby, 5 De G., M. & G. 623; Hindson v. Wetherill, ib. 301. But see Waters v. Thorn, 22 Beav. 547.

8 Walker v. Brungard, 13 Sm. & M. 723; Bank v. Macy, 4 Ind. 362. McCants v. Bee, 1 McCord, Ch. 382; Chester v. Greer, 5 Humph. 26; Wade v. Harper, 3 Yerg. 383. Where a sale of land by trustee of a bank is sought to be avoided by the cestui que trust, the improvements cannot be made a charge against the seller. Paine v. Irwin, 16 Hun, 390.

5 Dawson v. Massey, 1 B. & B. 226; Blackmore v. Shelby, 8 Humph. 439; Bostwick v. Atkins, 3 Comst. 53; Gallatian v. Cunningham, 8 Cow. 361; Clarke v. Devereaux, 1 S. C. 172.

conduct of the guardian.1 If there is the slightest suspicion of any improper motive for a gift, as that a better or more speedy settlement may be obtained, the conveyance will be avoided, and the guardian will continue to hold the property in trust for the ward. Where a guardian improperly procures an infant's land to be sold by decree of a court, the conveyance will be avoided; but if the land has been conveyed to an innocent purchaser without notice, the title will be allowed to stand. The influence of the guardian over the ward may be so subtle, and the motives of the gift may be of such a nature, as to baffle a court of equity in reaching them. Therefore it has been said that, although the gift from the ward may be a highly moral act, and alike creditable and honorable to him, yet, if the court is not entirely satisfied by clear demonstration that the gift was properly made, it will be set aside. Nothing can be allowed to stand that proceeds from the pressure of the relation of guardian and ward fresh upon the mind of the ward. But if the relation has entirely ceased, and a full settlement has been made, and the ward has obtained the full control of his property, and if sufficient time has elapsed to emancipate the mind of the ward from all undue impressions and influences, it may not only be proper, but highly meritorious and honorable, for a ward to make a fitting gift to a guardian who has faithfully performed his

Richardson v. Linney, 7 B. Mon. 471; Andrews v. Jones, 10 Ala. 400; Eberts v. Eberts, 54 Pa. St. 110; Dawson v. Massey, 1 B. & B. 229; Wright v. Proud, 13 Ves. 136; Wedderburn v. Wedderburn, 4 M. & C. 41; Aylward v. Kearney, 2 B. & B. 463; Mulhallen v. Murum, 3 Dr. & W. 317; Cary v. Mansfield, 1 Ves. 379; Garvin v. Williams, 44 Mo. 465; Amer. Law Reg. vol. 11 (N. s.), 656.

2 Gwinn v. Williams, 30 Md. 376.

3 Hatch v. Hatch, 9 Ves. 297; Hylton v. Hylton, 2 Ves. 548; Pierce v. Waring, ib., and 1 Ves. 380, and 1 P. Wms. 120, n.; 1 Cox, 125; Wood v. Downes, 18 Ves. 126; Johnson v. Johnson, 5 Ala. 90; Williams v. Powell, 1 Ired. Eq. 460; Caplinger v. Stokes, Meigs, 175; Somes v. Skinner, 16 Mass. 348; Whitman's App. 28 Pa. St. 348; Hawkin's App. 32 Pa. St. 203; Scott v. Freeland, 7 Sm. & M. 420; Garvin v. Williams, 44 Mo.

trust; and a court fully satisfied upon these points would uphold it.1

§ 201. In the same manner courts of equity carefully scrutinize contracts between parents and children by which the property of children is conveyed to parents. The position and influence of a parent over a child are so controlling, that the transaction should be carefully examined, and sales by a child to a parent must appear to be fair and reasonable.2 Such contracts are not, however, prima facie void, but there must be some affirmative proof of undue influence or other improper conduct to render the transaction void; for while the parent holds a powerful influence over the child, the law recognizes it as a rightful and proper influence, and does not presume, in the first instance, that a parent would make use of his authority and parental power to coerce, deceive, or defraud the child. Therefore it is always necessary to prove some improper and undue influence, in order to set aside contracts between parents and children. As purchases by a parent in the name of a child do not create a resulting trust, but are presumed, in the first instance, to be the advances made by the parent to the child, so conveyances to the parent by the child may be a proper family arrangement, and for the best interest of the child. If no such considerations can be

1 Hylton v. Hylton, 2 Ves. 547; Hatch v. Hatch, 9 Ves. 548.

2 Blunder v. Barker, 1 P. Wms. 639; Wallace v. Wallace, 2 Dr. & W. 452; Cocking v. Pratt, 1 Ves. 401; Heron v. Heron, 2 Atk. 181; Carpenter v. Heriot, 1 Ed. 328; Young v. Peachey, 2 Atk. 258.

Jenkins v. Pye, 12 Pet. 253, 254.

Cocking v. Pratt, 1 Ves. 401; Hawes v. Wyatt, 3 Bro. Ch. 156; 2 Cox, 263; Heron v. Heron, 2 Atk. 161; Young v. Peachey, ib.; Carpenter v. Heriot, 1 Ed. 328.

Blackborn v. Edgeley, 1 P. Wms. 607; Cooke v. Burtchaell, 2 Dr. & W. 165; Browne v. Carter, 5 Ves. 877; Tendrill v. Smith, 2 Atk. 85 Cory v. Cory, 1 Ves. 19; Kinchant v. Kinchant, 3 Bro. Ch. 374; Tweddell v. Tweddell, T. & R. 14; Hartopp v. Hartopp, 21 Beav. 259; Hannah v. Hodgson, 30 Beav. 19.

found in the case, and the conveyance, after all allowances are made, is found to have been wrongfully obtained from the child, a court of equity will set it aside or convert the parent into a trustee.1 But the proceedings must be had at once. The child cannot wait until the parent's death, or until the rights of other parties have intervened. The same rules apply when contracts are made between children, and those who have put themselves in loco parentis; 3 and so when family relatives make use of their position and influence to obtain undue and improper advantages, as where two brothers obtained a deed from a sister, it was set aside.1

§ 202. The relation of attorney and client is one of especial confidence and influence, and while that relation continues the attorney cannot receive gifts or make purchases from the client. It has been said in some cases that the attorney is

1 King v. Savery, 1 Sm. & Gif. 271; 5 H. L. Ca. 627; Berdoe v. Dawson, 11 Jur. (N. s.) 254; Bury v. Oppenheim, 26 Beav. 594; Baker v. Bradley, 7 De G., M. & G. 597; 35 Eng. L. & Eq. 449; Field v. Evans, 15 Sim. 375; Slocumb v. Marshall, 2 Wash. C. C. 397; Brice v. Brice, 5 Barb. 533; Whelan v. Whelan, 2 Cow. 537; Young v. Peachey, 2 Atk. 254; Glisson v. Ogden, ib. 258; Baker v. Tucker, 2 Eng. L. & Eq. 1; Blackborn v. Edgeley, 1 P. Wms. 607; Morris v. Burroughs, 1 Atk. 402; Tendrill v. Smith, 2 Atk. 85; Hoghton v. Hoghton, 15 Beav. 278; Wallace v. Wallace, 2 Dr. & W. 452; Cooke v. Lamotte, 15 Beav. 234; Hunter v. Atkins, 3 M. & K. 146; Archer v. Hudson, 7 Beav. 551; Findley v. Patterson, 2 B. Mon. 76.

2 Wright v. Vanderplank, 2 K. & J. 1; 8 De G., M. & G. 133; Brown v. Carter, 5 Ves. 877; Taylor v. Taylor, 8 How. 201; Crispell v. Dubois, 4 Barb. 393.

8 Archer v. Hudson, 7 Beav. 551; Maitland v. Backhouse, 16 Sim. 68; Maitland v. Irving, 15 Sim. 437.

4 Sears v. Shafer, 2 Seld. 268; Hewitt v. Crane, 2 Halst. Ch. 159; Boney v. Hollingsworth, 23 Ala. 690.

5 Welles v. Middleton, 1 Cox, 125; Wright v. Proud, 13 Ves. 137; Cheslyn v. Dalby, 2 Y. & C. Ch. 194; Hunter v. Atkins, 3 M. & K. 113; Wood v. Downes, 18 Ves. 126; Savery v. King, 35 Eng. L. & Eq. 100; De Montmorency v. Devereaux, 7 Cl. & Fin. 188; Jones v. Tripp, Jac. 322; Godard v. Carlisle, 9 Price, 169; Edwards v. Meyrick, 2 Hare, 68.

absolutely prohibited from entering into contracts with his clients. If the rule is not quite so peremptory as this, it at least goes to the extent of prohibiting him from contracting with his client for an interest in the subject-matter of the litigation. The client is so completely in the hands of the attorney in relation to the subject-matter of litigation, that it would be almost impossible for him to enter into a free and fair contract in regard to it. Beside, it is against the policy of the law that attorneys should obtain interests in litigated claims, and exercise their offices under such influences of gain. In all cases the burden is upon the attorney making a purchase of a client, to vindicate the transaction from all suspicion. And if the attorney cannot produce evi

1 Wright v. Proud, 13 Ves. 138; Holman v. Loynes, 4 De G., M. & G. 270; Thompson v. Judge, 3 Dr. 306; 19 Jur. 583; 24 L. J. Ch. 785; Henry v. Raiman, 25 Pa. St. 354; West v. Raymond, 21 Ind. 305; Atkins v. Delmage, 12 Ir. Eq. 2; Webster v. King, 33 Cal. 148; Frank's App. 59 Pa. St. 190; Lovatt v. Knipe, 12 Ir. Eq. 124; Purcell v. Buckley, ib. 55.

2 Oldham v. Hand, 2 Ves. 259; Wood v. Downes, 18 Ves. 120; Hall v. Hallett, 1 Cox, 134; West v. Raymond, 21 Ind. 305.

Newman v. Payne, 2 Ves. Jr. 199; Welles v. Middleton, 1 Cox, 112; 4 Bro. P. C. 245; Harris v. Tremenheere, 15 Ves. 34; Hunter v. Atkins, 3 M. & K. 135; Cane v. Allen, 2 Dow, 289; Champion v. Rigby, 1 R. & M. 539; Bellow v. Russell, 1 B. & B. 107; Gibson v. Jeyes, 6 Ves. 277; Uppington v. Buller, 2 Dr. & W. 184; Walmesley v. Booth, 2 Atk. 30; Montesquieu v. Sandys, 18 Ves. 302; Edwards v. Meyrick, 2 Hare, 60; Wood v. Downes, 18 Ves. 120; Lewis v. Hillman, 3 H. L. Ca. 607; Salmon v. Cutts, 4 De G. & Sm. 131; Holman v. Loynes, 4 De G., M. & G. 270; King v. Savery, 5 H. L. Ca. 627; Robinson v. Briggs, 1 Sm. & Gif. 184; Greenfield's Est. 2 Harris, 489; Merritt v. Lambert, 10 Paige, 357; Wallis v. Loubat, 2 Denio, 607; Howell v. Ransom, 11 Paige, 538; Evans v. Ellis, 5 Denio, 640; Barry v. Whitney, 3 Sand. S. C. 696; Hawley v. Cramer, 4 Cow. 717; Mott v. Harrington, 12 Vt. 199; Miles v. Ervin, 1 McCord, Ch. 524; Waters v. Thorn, 22 Beav. 547; Bank v. Tyrrell, 27 Beav. 273; 10 H. L. Ca. 26; Wall v. Cockerell, ib. 229; Brown v. Kennedy, 33 Beav. 133; Smedley v. Varley, 23 Beav. 359; O'Brien v. Lewis, 4 Gif. 221; Corley v. Stafford, 1 De G. & J. 238; Spring v. Pride, 10 Jur. (N. s.) 646; Gresley v. Mousley, 4 De G. & J. 78; Barnard v. Hunter, 2 Jur. (N. s.) 1213; Douglass v. Culverwell, 31 L. J. Ch. 65, 543; Brock v. Barnes, 40 Barb. 521.