Sec 164

It has been held in England on high authority that, where a donation is claimed by a person holding a fiduciary or authoritative relation to another to have been made to him by the person thus under his influence, the burden is on the party setting up the donation to prove its fairness. Such a transaction may be fair, and suitable to the circumstances of the parties. But this, it is held, must be shown by the party by whom it is accepted.1

When a voluntary donation is set up, burden on party setting it up to prove it to be fair.

In Bainbrigge v. Brown, 44 L. T. N. S. 705, the three children of Dr. Bainbrigge, they being aged respectively twenty-five, twenty-four, and twenty-two, and resident under their father's roof, and not emancipated from his control, executed a deed by which they made themselves liable for the interest on certain mortgage debts of their father to his mortgagees, and charged their reversionary interests under their parents' marriage settlement for that purpose, and gave the mortgagees a power of sale over such reversionary interests. In consideration of receiving the interest payable under the deed, the mortgagees agreed to reduce the rate of interest payable on their mortgages. The children brought an action to set aside the deed as against their father and his mortgagees, on the ground of undue influence exercised by their father. It was held by Fry, L. J. (May, 1881), that, as against the father, the burden of proof lay on him, and that, as he had not discharged it, the deed must be set aside as against him ; but that, as against the mortgagees, the burden of proof lay on the plaintiffs, that they had not discharged it, and that the deed could therefore not be set aside as against the mortgagees.

1 Lord Romilly in Cooke v. Lamotte, 15 Beav. 234 ; Hoghton v. Hoghton, 15 Beav. 278; S. P. Lord Hatherley in Phillips v. Mullings, L. R. 7 Ch. 246 ; Colburn v.Van Velzer, 11 Fed. Rep. 795.

Mr. Pollock, however (Cont. 3d ed. 574), objects to such broad statements of the law, saying that he "has reason to know that they cannot be relied on in practice," and that, "carried to their full extent, they would make an irrevocable gift almost impossible." But the question, so far as concerns the burden of proof, depends upon the way in which the issue is presented. If the donee claims specific performance of such a gift, the burden is on him to prove its fairness. But if the donor seeks to rescind, or to recover back the thing given, he ought to prove something more than a prior fiduciary relation between himself and the donee. The fact that the gift has been carried into execution argues a deliberation and coolness which he ought to rebut by showing that he was at the time not fully advised of his act, and that the act was performed under undue influence.-That, as a matter of law, an executed gift without consideration will be sustained, when not in fraud of other parties, will be hereafter seen. Infra, sec 496.