delivered the opinion of the. court January 5th, 1885.
The deed of Edward Kelly, Sr., to his nephew, dated March 21st, 1874, and the bill of sale of.the same date, by which the former conveyed, on a parol consideration of maintenance, all his real and personal property to the latter, are not in themselves either void or voidable, though the. transaction may be considered an improvident one. It is probable that a chancellor, were he called upon to compel the execution, by assignments or conveyances, of an unexecuted contract like that embraced in the papers above mentioned, would hesitate so to do. On the ground of inadequacy of consideration he might interfere to protect one who had improvidently agreed to divest himself of all his property on a mere oral promise of maintenance. But it is otherwise with an executed contract; inadequacy of consideration alone will not induce a chancellor to rescind such contract: Graham v. Pancoast, 6 Cas. 89; Aiman v. Stout, 6 Wr. 114. Nor, according to the same au7 thorities, will mental weakness, where not sufficient to prevent a comprehension of the contract, nor mere hardship, warrant a rescission. As to the case in hearing, the court below agrees with the Auditor, that there was neither such mental incapacity, on part of the grantor, as would of itself avoid his deed, neither was there evidence of actual fraud on part of the grantee. But the case is put on the ground of constructive fraud, and Judge Story is quoted as saying that equity will grant relief in cases where a confidence has been reposed and that confidence has been abused. But such abuse of confidence is rather ah actual than a constructive fraud. Constructive fraud is a legal implication, and depends neither upon the good or bad faith of the contracting parties as between themselves. Here, however, admitting the ability of the one party to contract, and the good faith of the other in accepting the benefits conferred upon him by the contract, and there is no room for the intervention of a legal policjq since by the transaction no implication can arise of the infrac7 tion either of law or public policy. We know of no obstacle, legal or moral, in the way of one who is of sane mind and free of debt making a gift of a part or the whole of his property to another, much less in his transferring it in consideration of maintenance. All this is obvious and undisputed, and the court, in its endeavor to avoid the principle here stated. *53and to relieve the plaintiff from what it esteemed an improvident contract, raised an issue and came to a conclusion not warranted by the facts of the case.
It is said, inter alia: “ Nor is it a sufficient answer that Edward Kelly, Sr., knew what he was doing and appeared to act voluntarily, without any influence on part of his nephew. He may have known at the time what he was doing and have appeared to act of his own free will, and yet have been influenced by a mind and hand in the background. How came he to form such a purpose ? To give away a large estate without reserving one clolla-r to himself or providing for his support in his old age. Undue influence in such case may be fairly presumed.” Here is, first, an assumption of undue influence without one particle of evidence to support it; on the contrary, the Master finds as follows : “ In no instance during the whole transaction does the hand or influence of the defendant-appear, either directly or indirectly. On the contrary, the testimony of Mr. Mitchel, as above stated, and the declaration of the plaintiff, made in 1878, four years after the transaction as testified to by Capt. Ward, ‘ that all the lawyers in town would not have made him deviate from what he intended to do,’ show this transfer to have been the deliberate act of the plaintiff, when in the full possession of his faculties, after consultation with able and disinterested counsel of his own selection, who fully informed him of the consequences of his act, and cautioned him against it, and done after time for deliberation, after having been advised of the consequences of the proposed act.” Then there is, second, in this statement of the court, the further assumption that Kelly gave away his large estate without reserving one dollar to himself, or providing for his support in his old age. The Master, on the other hand, finds, that at the time of the transfer of the 21st of March, 1874, there was a verbal agreement between the parties by which the defendant undertook to provide for. the wants of the plaintiff during his life, including the use and occupancy of the lio use on Ross street, and also to convey, after the plaintiff’s death, a portion of the real estate to certain persons then and there agreed upon. Here certainly was a good and legal consideration, notwithstanding the court's assumption to the contraiy, and one that was executed to the letter. For. though the latter part of this parol agreement might not be enforceable under the statute of frauds and perjuries, yet this defect was cured by the execution of the deed of trust of November 10th, 1874. What remains simply goes to fortify the conclusion of the Auditor.
The defendant seems to have -been wholly obedient to the will of his uncle. The two deeds, of November 10th, 1874, *54embracing the same property as that conveyed by the deed of the 21st of March, 1874; and the declaration of trust, as above stated, appear to have been drawn and executed at the instance and dictation of the plaintiff without any previous consultation with his nephew. So, when we come to the paper of the 18th of April, 1876, b}r which the defendant assigns to his uncle the rents of all the property which had been conveyed to him, we see in it a disposition on part of the nephew to submit to whatever his uncle required of him.
In fact, between these parties there was no jar or discord until after the plaintiff’s second marriage ; until that time they were as father and son ; but this new relation seems to have broken the previously existing harmony; the old man demanded a re-conveyance of the property; this the young man refused to do, and thus a dispute arose which led to the compromise of May 7th, 1878.
• Here, it might well be supposed, all possible controversy had an end. There could be now no secret and undue influence of the nephew over his uncle ; the parties were at arms length ; Edward Kelly, Sr., was now married, and his wife may be presumed to have had some common sense even though her husband had not. He had the counsel and advice of three able lawyers; the compromise was most carefully considered, deliberately executed and delivered, and he took and has since retained the possession of the property conveyed to him by it. Nevertheless, the court below, in commenting on this part of the case, says: “ In view of these facts it is almost impossible to doubt that the plaintiff was induced to sign the compromise by fraud and imposition.” But in view of what facts, or by whose fraud and imposition ? That the property he received by the compromise was not worth nearly so much as that retained by the defendant? That the counsel employed by him did not bring suit, but rather preferred a compromise ? That their fees were excessive, and that his friend and agent, Capt. Ward, urged him too strongly to sign the agreement? But in this connection a few things, evidently' overlooked by the court, are to be remembered: (1) That the fee to the entire property was lawfully in the defendant, and that what he re-conveyecl to his uncle was ex gratia, and not of any legal compulsion. (2) That as the facts of the case did not warrant the bringing of a suit, his counsel were wise in preferring a compromise. And (3) On the day after the evening on which Capt. Ward brought the compromise agreement to him for his signature, he carefully re-examined this paper with his three attorneys, and, acting under their counsel and advice, approved of it, and agreed to its subse*55quent delivery. But it may be pertinently asked: What bad the defendant to do with all this ?
If the plaintiff’s friends and counsellors imposed upon and defrauded him, a conclusion which neither the character of these gentlemen nor the testimony warrants, how can the defendant be compromised thereby? He can no longer be charged with the guardianship of his uncle, or made responsible for his uncle’s improvidence. In this compromise he acts for himself alone, and if by it he has got the better of the bargain, he has it by no unfair or unlawful means, hence, the plaintiff, or rather those who now represent his estate, have no equitable ground of complaint.
In the appeal of Edward Kelly, Jr., the decree of the court below is reversed and set aside, and the plaintiff’s bill dismissed at the costs of the appellee.
Bridget Kelly’s appeal is dismissed at costs of appellant.