I am not persuaded that Mrs. Webster was mentally incompetent to execute the deed. Shortly after the deed was given, it is true, a guardian was appointed, but that was not because of mental infirmity but for lack of business capacity. Eighteen months after the deed Mrs. Webster was married to plaintiff Edwin Coy, who lived with her until her death. Her guardian, at her request, procured an attorney to prepare the will under which plaintiffs claim, and that was done in December, 1923, or 19 months after she gave the deed, and the will was probated. Statements made by Mrs. Webster that she feared Mr. Doney and had to give the deed could not be used to establish undue influence (In re Allen's Estate, 230 Mich. 584), and besides her letters to the Doneys wholly refute any such claim.
Mrs. Webster had no business capacity, and defendants were well aware of such fact, for Mr. Doney was her confidential business adviser at the time the deed was given. Such fiduciary relation cast upon defendants the burden of showing that the taking of the deed was not unconscionable. Under the circumstances disclosed by the evidence, the taking of the deed by defendants was unconscionable, and, therefore, I concur in the result of Mr. Justice McDONALD'S opinion.
FLANNIGAN, C.J., and FELLOWS, J., concurred.
The late Justice SNOW took no part in this decision. *Page 312