One who is weak mentally and physically may be more subject to undue influence than one who is strong and well.1 If the party seeking relief is weak mentally, the transaction of which he complains will be scrutinized carefully, and if any ground for believing that undue influence has been acquired over him exists, the transaction will be set aside.2 The fact of mental distress,3 or of solicitation, even of a person of weak intellect,4 do not of themselves establish undue influence. The mere fact, moreover, that a party to the transaction is weak mentally, but not so weak as to amount to a legal incapacity to make contracts or conveyances, is not of itself sufficient to justify the court in setting aside the contract or conveyance in the absence of further evidence.5 Weakness of mind may, however, when combined with inadequacy of consideration, be sufficient to show that the influence exercised over the party was undue. A compromise which is made with one who is inexperienced, weak in body or mind, or without independent counsel and advice, and for such reasons not in a condition to deal upon equal terms with the adversary party, is scrutinized very carefully by the courts, and if obtained unfairly will be set aside.6 A presumption of fraud arises from dealing with a person who is so intoxicated that his condition is manifest.7 The transaction of an intoxicated person is treated as voidable at law on the ground of his lack of capacity; but in equity his transactions are set aside on the ground of fraud.8

2 Misstatement as to effect of conveyance. Kyle v. Perdue, 95 Ala. 579, 10 So. 103. Misstatement by grantee (a grandson of grantor) who has agreed to support grantor, of his financial ability. Rexford v. Schofield, 101 Mich. 480, 59 N. W. 837.

See Sec. 407 et seq.

1Rogers v. Rogers, 6 Pen. (Del.) 267, 06 Atl. 374.

2Arizona. Smith v. Mosbarger, 18 Ariz. 19, 156 Pac. 79.

Georgia. Hartley v. Marietta Nursery Co., 138 Ga. 736, 76 S. E. 39.

Indiana. Yount v. Yount, 144 Ind. 133, 43 N. E. 136.

Kentucky. Herzog v. Gipson, 170 Ky. 325, 185 S. W. 1119.

Mississippi. Wherry v. Latimer, 103 Miss. 524, 60 So. 563 [suggestion of error overruled, Wherry v. Latimer, 103 Miss. 524, 60 So. 642]. .

Nebraska. Bennett v. Bennett, 65 Neb. 432, 91 N. W. 400, 96 N. W. 994; Miller v. W. C. Wentz Co., 99 Neb. 286, 156 N. W. 634.

North Carolina. Hodges v. Wilson, 165 N. Car. 323, 81 S. E. 340.

South Carolina. Du Bose v. Kell, 90 S. Car. 196, 71 S. E. 371.

Wisconsin. Boardman v. Lorentzen, 155 Wis. 566, 52 L. R. A. (N.S.) 476, 145 N. W. 750.

3 Wilson v. Brown (Tenn. Ch. App.), 35 S. W. 1098.

4 Rogers v. Higgins, 57 111. 244.

5 United States. Sawyer v. White, 122 Fed. 223.

Alabama. Frederick v. Hartley, - Ala. - , 79 So. 381.

Illinois. Perry v. Pearson, 135 HI. 218, 25 N. E. 636.

Kentucky. Duncan v. Mason (Ky.), 20 S. W. 352; Colyer v. Hyden, 94 Ky. 180, 21 S. W. 868.

Michigan. Arnold v. Whitcomb, 83 Mich. 19, 46 N. W. 1029; Davis v. Phillips, 85 Mich. 198, 48 N. W. 513; Stewart v. Curtis, 85 Mich. 496, 48 N. W. 872.

Nebraska. Tichy v. Simecek (Neb.), 95 N. W. 629.

Pennsylvania. King v. Humphreys, 138 Pa. St. 310, 22 Atl. 19.

Utah. Stringfellow v. Hanson, 25 Utah 480, 71 Pac. 1052.

See Sec. 1626.