In most jurisdictions, a transaction between a husband and wife which results in a benefit to the husband, creates a presumption of undue influence.1 In other jurisdictions, however, it has been said that no presumption of undue influence existed in such transaction.2 Such a transaction is, at least, suspicious.3

In order to create this presumption, the transaction must be intended to benefit the husband. A contract by a wife to convey to a husband, in pursuance of an agreement by him to devise his property to her, so that the survivor should have all the property, does not raise the presumption of undue influence.4 The rule that a transaction between husband and wife resulting in a benefit to the husband creates a presumption of undue influence has been put in statutory form,5 and has been so broadened by statute that it includes transactions resulting in an advantage to the wife.6 In the absence of statute, a transaction between husband and wife which results in a benefit to the wife is not presumed to be made as a result of undue influence.7 If it is shown that the wife exercises undue influence over her husband in fact, a transaction which

2Smith v. Boyd, 61 N. J. Eq. 175, 47 Atl. 816; McRae v. Malloy, 93 N. Car. 154.

3Earhart v. Holmes, 97 la. 649, 66 N. W. 898.

4Bowe v. Bowe, 42 Mich. 195, 3 N. W. 843.

1Hall v. Otterson, 52 N. J. Eq. 522, 28 Atl. 907; Thompson v. Brozo, 92 Wash. 79, 159 Pac. 105.

Such presumption does not arise as to transactions looking towards a separation. Dondelinger v. Dondelinger, 101 Kan. 179, 165 Pac. 849; Ballard v. Ballard, 177 Ky. 253, 197 S. W. 661.

2Smelser v. Meier, 271 Mo. 178, 196 S. W. 22; Willis v. Baker, 75 0. S. 291, 79 N. E. 466.

3Koopman v. Mansolf, 51 Mont. 48, 149 Pac. 491; Thompson v. Brozo, 92 Wash. 79, 159 Pac. 105.

4 Jones v. Gorham, 90 Ky. 622, 29 Am. St. Rep. 423, 10 L. R. A. 223, 14 S. W. 599.

5White v. Warren, 120 Cal. 322, 49 Pac. 129, 52 Pac. 723.

6Jackson v. Jackson, 94 Cal. 446, 29 Pac. 957.

7Pritchard v. Hutton, 187 Mich. 346, 153 N. W. 705; Anderson v. Cercone results in a benefit to the wife may be set aside.8 A conveyance by a husband who is aged, infirm and partially blind, to his wife under whose control he actually is, will be set aside for undue influence.9

Sec. 452. Persons in improper sexual relations, A transaction between persons in improper sexual relations whereby one gains a financial advantage over the other, is presumed to be due to undue influence.1 This presumption, however, is rather an inference of fact.2 It may be rebutted by showing that undue influence was not in fact exerted.3