1. The conveyance and release given by the deceased in this case are attacked on the ground that she was mentally incompetent. The test is whether she possessed sufficient ability at the times she acted to understand in a reasonable manner the nature and effect of the conveyance and release.
2. In a transaction between persons occupying a confidential relation to each other, where property is conveyed to the dominant one, the latter has the burden of showing affirmatively that no deception was practiced, no influence was used, and the transaction was fair, open and voluntary, and well understood by the transferor. In addition, when it appears that the transfer was improvident, it will be set aside unless it is shown that the donor had competent, independent advice. Held, the conveyance made by the deceased to her daughter, the defendant, must be set aside under the facts because of lack of independent advice and because the inference of undue influence has not been overcome.
3. A transaction is considered improvident if it diminishes the already inadequate means of support to which the transferor can look as a matter of legal right. The conveyance to the daughter in this case was improvident in a financial sense.
4. Deceased executed a release of her interest in her father's estate in consideration of the advance by her sister of $1,000, the agreed fair value of the interest. The sum was paid over to the defendant daughter of the deceased, who expended it on her mother's funeral and for necessities for herself. Held, this transaction was fair, voluntary, provident and in all respects proper.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons expressed in the opinion of Vice-Chancellor Bigelow filed in the Court of Chancery.
For affirmance — THE CHIEF-JUSTICE, PARKER, BODINE, DONGES, HEHER, PERSKIE, OLIPHANT, WELLS, RAFFERTY, DILL, McGEEHAN, JJ. 11.
For reversal — None.