The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-05-04
DECISIONS OF THE HIGH COURT
Reported expressly for ne Eastern Clarion
,,, mo. s292.

DECISIONS OF THE HIGH COURT.
reported expressly for Tie Easter, Clarion.
Meek & Thornton. Execntor- ,r,,or,,,- 49, nm
well Il. Perry ana Mifa.
Appeal nom the Probate Cont Of Panel, county
FROM the record appears that David NcKmnIc.
the father Of testatrix. and Of tI aUpsll.s NJ. pr
~ e, 'e ytar lS5s, leaving these liS only chill
drcn- Mary now Mrs Perry horn on tb, y-tI Al ..f
ls34; LOUISA r. the tcstatriv. born Tho ~ N.yrI.r
That Michael McKinnie tb,r uncle. qualified u.s.
their guardian IN 1870 Tb.f tIs f,.tltir ,f thas.
children died IN June $50; and shortly thereafter
Just one llohth MARY without tie consent % h.r
appellee tLouisa Il. continuing 70 reside arl her
guardian.
That on tie 26th April 1855 the said Louisa being
- very .au ..th, and IN expectation ut mIngdH'"
dissolution nom pulmonary consumption. made thc
IN ~, lIufnent which is Tho .u'I""f 81 @
gatl"n here That on the 3Dth April lss. size si 20
the house oi her guardian 81 Kinule. ana Ieayugan
only sister the said MgryParry.
l.e w, Ass pi"ppunded for probate ny TIE ~,ud
Michael M"kinnie. the upcl. aul guardian of tesla
triN. anu principal beneficiary under said wllL and
admitted % record IN common form boz the Probate
court "i Fan"lacounty.
on t'e petition u appeIlee-. the Proiate Court di-
'',l az ~. o. dctts0ut 81 H3ii Co. '' ''iiEt1 i'
the rrut Court of said county, 2, Do" tined There
And tn jury having founda verdict aGs.u-- -Is VALID
ity o. -aH va" in the said Circuit Court. tHe fr"a,y
appeal D. taken.
he errors mainly relied on by counsel Tor appel
INIT 'l' l. iN following instruction gwen tN Tie
court on we F'' below, at the request ot arP.lge-.
VIZ; The laW watches with ,eaoil-y transactions pee
/ tween guardian and ward; and II the jury believe
from the evidence that LOUIS McKuay made VIII
iu favor 81 her guardian whilst tine relation of guar
dau and "ard sili-i-ted, the cirrum-tanr'- must de-
mon~tT1te iull deicIaton on the part OBJ, the ward.
and abundant good iih on the pant 81 'h, t,1.,i3n,
/ OF they must ind against tie viii
Aud : That the Court erred m rejecting the answer
I appellants 10 Mr.. HIlef
The point to hc ronsidereds. the existence Of un-
que influence a. directing the capacity 90 the tesa-
Its conceded on an sides that when .undue niu-
enc" u established 3sopcratiug on the mind Of the
tr-tatoi' ana HHucngthe exercise Of free ypon.
that in legal contemplation IL destroys te~t3msutlry
captiN- TIE ti" docs not always require the pro-
duth 81 direct and positive proof Of tie eNl-teue"
Of acts and facts uponwhch 10 found IT. Judgment
II doe, h" aiNay- require crcum-tautH proof even.
az the basis OF u.s. conclusions: deriving IT. uuurI-
/ pies oiru from human experience of human motive
and cuuhurt. ~ iniers or pre-Ume- the cN>tcnc, Of
one from the proof II the other.
Indeed the yicfuentrv writers ON the law of ryi-
dehr' ahnlhH WITH illustrations OF legal pre~uWp-
! tons. winch ar" even conclusive and undisputahp;
/ founded in the philosophy Of human experience.
anu h9' i't.rloIt peculiar g. the MUNICIPAL law but
shared hN V M common with other departments Of
| science. -neh are esonpes the verify Of records
] tfe lh'"l".iH Oh hianfs and married women. the
I due execution Of ancieuf deeds The rule law in
these case, Is not ruIgof Inference from testimony
end S.- .i. ~ IL F Fii
| doctrine 81 pres umPtons Of law furnishing the ey-
dcurr If the existence Of unknown facts from the
proof oi others, their known cuncornitau~. unIycr
sally ami safely applied 10y courts of law. even where
human life is involved. Thus everN killing of "a Lu-
| man being j. presumed 70 boz malicious. and cun.e-
quently murder until the contrary appears The at
tempt To escape q stron- presumption Of guilt Sc.
sivc In civil eases: sometimes only praG fr.4 or dis
putae. But in either ease, courts act uppu thcm ~
readily u the absence Of testimony % the CONTRARY
| as upon the most airy't positive and conclusive
| proof pr tsstss.
IT, therefore. the law upon ground, Of great pub.
policy, utility necessity. presuneS the existence
/ If undue influence" from the known confidential
relation of guardian and ward, client and attorney.
| principal and agent physician and patient trustee
| and rcstia gss anu others. the unknown fact
thus presumed m law l. just potential as proof "a,
though It had been thus established by the most
Letus therefore inquire whether from the known
existence Of the relations of guardian and ward the
law does IN any aud what cases presume "undue in
nuen'c or FRAUDULENT or unconSclentlous conduct on
the part Of the guardian towards his ward OF towards
| others having claim on his bounty.
And first viii examine the doctrine in reference
! both to it, origin and the reason upon which il l.
| founded. As early as the seyeuteeth century. the
| cases are numerous IN which il has been held that
parties standing 10 the relation OF guardian. cannot
/ become the bguchcaues Of their wards bounty.
In the case Of Hatch w. Hatch 9Th Na-ay Juur.
| page %. q conveyance by q ward to her guard an.
was set aside. on grounds of public policy The
Attorney General. after stating the rule. cited
! Narng cited IN the same case Hylt0n ". Hyltou.
2Ncs.Juu 81 where Lord Hariwickr EXPRESSES IN
strong terms the jealousy Of courts such cases.
! tsm1utN~. tt1ruy. Pr WINS. l2s, and the Duke Of
Hamilton -. Lord MDhern, Pr. Vim. llS.l The Lord
Chancellor Eldon said IA reply; In Wells ". Mid
-detou- ln the House - Lords Iu lIN5. when Lord
"ihurloN decree affirmed. all these eases re-
"latIng &" trustees guardians, attorneys. sc. We're
much considered audthe rule laid down very strong
~lyb Thurlow. ludeIivering hSopIufou Subsequent
"ly IN the same ease Hatch HATCH Lord Edun said:
This case proves thew9dum oftn court in saying il
.i~ almost Impossible nfhn course of the connection
-of guardian and ward. attorney and client. tru-t-.
'nd restgi qgs trust that transaction shall stand pur-
porting 20 be bounty for antecedeut dJty. There
'may not De- a moral act one that woud do more
credit {" young man beginning the world or If
'fugi better omen for the future. than If trustee
Having done hiS duty The costa qgs trust taking il
-into his fair serious and well informed con, lder,
~ilon we're 60 do an act Of bounty Ike this But the
"cuurt cannot permit 10. except quite satisfied that
"the acts Of that nature for the reason often given
&c H adds that ia discussing whether u
els act Of rational constellation. an ACT of pure 0-
clifton. uninHuourcd. that inquiry i- $50 easily laf
fled in court Of justice that instead oi the spuna-
''ueou~ act q friend uninhleUee.i. or may D. 90,
'lmPJl~" of "a mind misled hy undue kindness or
! oppression. And therefore. ~ty- lie. If the
-cuurt does not watch their transactions with I,al
lousy almost myncibe, IN great majority OF cases
! ''lt EIIl lend it. assistance 20 fraud"
And although the deed had been executed f1r
more Than twenty years iG tins case. be- ~st % aside.
IN the case Of Morse " Royal. 18th Yes. Jun. p.
go Lord Chancellor Er-kins says zone class uf r-
D. that # contracts, that may b. avoided a- hu-
contrary 60 the policy If the law. which are inter-
dictrd for the UI-s-t reasons. OF that Sind deed
II gift shtaiuei by attorney while engaged n the
tu-nts- ~ the author 81 thar gift deed by Al heir
| when II age o. bis -uard an. Ac.
I The most remarkable case. -dy- hr Wells w.
. Middleton, 90 which LoId 1hUroW said Middleton
'ttffINFl ln f+ ANA inner other
might nave been an Object ~ That party bounty
h3f the decd taken hv an attorney while he vas tia
attorney oi The party. could no, be supported with
- Boz the case ~ u.1nUud ". Hutchinson. 18th Yes
, JUHr p 4. Lord Chancellor Es~kiue holds this lam
. guag": The PRINCIPLES upon which this court acts
IN These cases pa Evug relief Is PLAIN. and think
mot n"S. The Jut-fts-lOn b, most beneficial. pro-
-,ioI- iu lie, ia respect u which tins court s~unp-
Z guardian ship over ma9knd. Commenting On the
-t1t~erf Wells v-. Middleton SO often cited he saws
n Ia N.H - e o.. r... a.
g1- au instrument ShIcl Oh" policy ~ the law would
uot -Jl-ts.u- and % Necessary o. set aside ul.Yl
. 'ttc relation of the parties. lib, defendant
. "hai not done anything immoral or dishonest I'M
tne principle &C that decision was the policy ~ tile
"l1U founded on the safety 11l eouyDI,H,a af man
kind; shield against advantage taken boy persons
I'm situations of confidence preventing acts 81 b1u-
Z Ely which in other situations might have eis.t.
Tine ease al Pierce v Wanng. he adds, .I~ another
7 authority IN Iefliar instance If gs.r.I..r
There would De no bounds 90 the crushing powers e..
attorneys and persons having confidential a.rpuIuu
cation when no other person l. present. That rl.r
did not turn upon advantage taken IN the particular
instance bit upon the general rule that tie trus1c
/ ton should MT take effect.
- also ia the case II Wright ". Proud I5.h YES
! Juu'r l3s. Lord Erskiue speaking OF the Ct~a- I'D
confidential relation having just named 81 guardian
and ward sald: Ia Lady Sanderson~ case. .d these
cases were considered, aud LOrd HsrdWcke would
hot permit the transaction 20 stand. even after the
I relation had ceased, a. u took place under I'M
! due influence. 50, independent Of an fraud, au
attorney shall not take gin from HI client while
the relation sub-is:=, though thr transaction may not
only be free from ffaud. hut the most moral in IT, ms
ture The Judgment IN Wells IS. Middleton wen,
wholly beside anything that could affect moral char
l acter.'
}ean in the ease Of Hageuin vs. Ba~cIv l4,l, ves
Jun =. 30 Lord Eldon again reviews the eases. aud
And also iu Wood Vs. Downs. 18th YES .unr. IL tuo
same doctrine asserted by the same Chancellor
In Muntesquier ". Lsndys Is Yes. Senr- at p. 3l3
Lord EdOn states the rule thus; THAI an attorney
shall not take from hi client gift reward. hIt
standing in that relation, the connection between
them subsistlng with the influence attending
though the transaction may be a. righteous ever
was carried on. That the connection must AS On tho
/ instance of guardian ana ward be bVH1 Hfs dissolved
before he can take anything beyond his regular
! fees
The case Of HyItonv ". Hylton, > Yes sen. !. 81,
case OF guardian and ward Il was the grant oil
an anuHitv by the ward to his uncle and guardian -
| The Lord Chancellor. Hardwlcke IN delivering hi.
dian or trustee in nature OF guardian for an infant
the Is extremely wachful to prevent that per
son taking any adv aniage mined atry upon hi.
ward. or ccsf4 que trust coming Of age. and az the
time Of settling account or delivering ND the trust
because undue advantage may be- taken. 1t would
give an opportunity either by H3ttery OF force. hy
good usage unfairly meant OF lIy bad usage imposed
To- take such advantage: and therefore the prInuipi,
u the court Is II the nature with relief in tli-
court, on the head Of public utility. u bonds o..
tanned from young heirs. and rewards given to an a
tornes pending cause and marriage hT1Hge bond,
all depend upon public utility; aud therefore IA,
court viii not >Ilit,rIt ihough perhaps ln the pal;i.
lar instance there may not De an actual uuftfue~--
Upon that ground went IVA the case cited Pierce vs.
Waring. in which have aidedu thceud Of my note
taken ut the hearing Of the cfuSc, 60 Doe absolutely
set aside. being between guardian and hI~ ward inst
come of age. and on reason - public utility" IS,
Wariucs ease cited and fully stated ia NOT. 10 Hafui
ton vs.. Mohrrn. Pr VIM. Il. D. IN
will only cite one other English ease. and tlat is
the OF Wells " Mlldletau. reported ia CpN.'-
cases, p ll2-l25. iRd also N An Browns Parhc
ton not only from the fact that had been cited and
regarded m the subsequent cases a. OF the highest
authority. butmurr especially because the reasoning
employed and principles asserted M the luminous
and able augment Of Lord Thurlow affirmed M
most fan aud thorough Naup8tlou Of tile ease.
| upon appeal hy the House Of Lords.
This wa a bill filed TO set aside deeds alleged Q,
have been iratalulentiy obtained from the gran-pl
I by the defendant The court however, IN dotermiu
the case place their Judgment not ON any ground
u fraud but upon the same great principle Of pull
lee policy and utility, which had been previously an
bounced nthe cases cited.
Lord Hlrlwicke says 1T has been argued as Il it
was necessary q establish an ncompetenry in this
man that rendered It mEo~siils for him e. convey
| but tins Is not So. 1heH are m1ny instances whore
this court b. Obliged 20 act for the preservation OF
mankind. The Prescriptions arising must Doe rtfU
ted by the strongest eridence,' . p The case 81
MOOdhou~e y. Smpley. 2i Atkins T. 90. was Of this
kind. nothing could be frer; hut the court dacidcl
on general prime pies, and could hot permit mIrr-
age 60 bc the fsundatIou Of such contract what
- the case IT eNpectgnt children anticipating gifts hv
sales. They 60 upon general ideas. So the cases Of
| trustees and guardians. and so OF attorneys. The
case Pierce ". Warng for instance. The court would
not have set aside the gift in thu, case bui because
i was teraieaus Thing that man who had the re-
latIou % gurtlin and the confidence thai relation
derives 90 him. should avail himself Of the habits ol
intimacy and influence ithe true and honest and just
/ influence asst l. m telfl h. might have in the mind
II an infant or child coming Of age % obtain from
him gh ~ that kind In the case Of attorneys It's
perfectly well settled that attorney cannot take "a
| g while the client Is In his hand. nor instead " his
/ till. And tber" would be no bounds o. the crushing
powers IL an attorney Ehu E4s te grairs "f man in
and % may De otherwise The case Of Proof vs.. lIu-
mes. ease term. Tab D III. j. in point And though