On Petition foe Rehearing.
Hackney, C. J.— Counsel for the appellee again insist that the finding that Deer was, at the times in question, of “unsound mind,” was a finding of fact, and not a conclusion.
*109We have carefully considered the argument made, and are constrained to adhere to our original holding upon that question. It is urged, also, that when insanity was found, the burden rested upon the appellants to prove that it did not affect the gift, and that since the special verdict omits a finding that such proof was made, the failure in this respect will be deemed the failure of the appellants. This position, at one time, had apparent support from the decisions of this court, but at this time the rule deemed to be just and to be best supported by authority, is that one who challenges the mental capacity of a testator or donor, has the burden of establishing the absence of the particular capacity in issue. Blough v. Parry, 144 Ind. 463.
There were three paragraphs in the complaint. The first sought to recover for moneys had and received by the appellants to the use of the decedent, Urial Deer. The second alleged, that Deer was of unsound mind; that the appellants had taken charge of his affairs and had collected large sums of money from divers persons and banks for him, and which they concealed and appropriated to their own use. The third paragraph alleged, that Deer was aged and infirm; that he lived with the appellants, his daughter and son-in-law, and was easily controlled and influenced by them; and that they “unduly importuned, persuaded, and influenced said decedent to turn over to them all his money which he then had in his possession, amounting,” etc., “which said decedent gave into their possession under the influence of such undue persuasion and importunity,” and they have retained the same and refuse to account therefor.
The theory of each paragraph is manifest. ■ By the first, regardless of the mental capacity of Deer, the appellants are charged with money had and received to his use. By the second, with money belonging to *110him and obtained by them from his debtors while he was of unsound mind jand incapable of consenting to their possession of such money. By the third, the obtaining of his money by undue influence. The jury found, as relating to these several paragraphs, that “Urial Deer had been a person of unsound mind continuously for two years prior to his death, and that in January 1888, the defendants, John R. Teegarden and Huida Teegarden, his wife, received from said Deer, as a gift, while he was of unsound mind, the sum of $3,850.00, which they yet hold and refuse to pay to plaintiff as administrator,” etc. “And further find, that afterwards, and while said Deer was of unsound mind, John R. Teegarden, as agent of Deer, received from,” a bank named, “$3,400.00, which sum he wrongfully appropriated to his own use before the commencement of this suit,”etc. “4. We further find that from August, 1887, to the 22d day of August, 1889, the time of Urial Deer’s death, he was old, weak, and childish, and relied upon John R. Teegarden to go with him and assist him in transacting all of his financial business; that during all of said period said Deer lived with said John R. Teegarden and the wife of said Teegarden, who was the daughter of said Urial Deer, and that said Deer, during all of said period, was dependent upon said Teegarden and his (Teegarden’s) wife for personal care and attention, and a home to live in, and that all of the money hereinbefore found to have been procured from said Deer bj them, or given to them by said Deer, has remained in their possession, as hereinbefore found, and that said defendants have not shown that they rightfully received said money from said Urial Deer, and we find that they wrongfully converted all of said money to their own use before the commencement of this suit.”
Upon demand, John R. Teegarden denied having *111“in bis possession any of tbe personal property of Urial Deer.” It was found, also, tbat when John R. Teegarden obtained said $3,400.00 from said bank, Deer was indebted in a sum stated, and “said $3,400.00 was all tbe property of any kind tbat he owned or possessed,” at tbe time of its conversion, except tbe claims in this suit. Tbe jury made a further finding, tbat if tbe law should be with tbe appellee, be should recover against John R. Teegarden $4,063.00, and against John R. and Huida Teegarden $4,774.00. Tbe judgment of tbe court, was against the appellants jointly for $4,774.00, and against John R. Teegarden for $4,063.00.
Upon tbe conclusion reached, in tbe original opinion, neither of these sums was recoverable under tlie second paragraph of complaint, and tbe verdict for all purposes should be treated as not containing tbe findings tbat Urial Deer was of “unsound mind.” The findings, that the appellants converted said sums to their own use, were conclusions, and bad no proper place in tbe verdict. Louisville, etc., R. R. Co. v. Balch, 105 Ind. 93.
With relation to the findings as to the $3,400.00, we think it appears, with reasonable certainty, tbat it was tbe property of Deer; tbat it was, as such, obtained by John R. Teegarden and retained by him. This, we think, is true, whether we regard tbe finding of an agency as a conclusion or the statement of a fact. Tbe finding, in this respect, is supportable upon tbe first paragraph of complaint
With relation to tbe finding as to tbe $3,850.00, they can have no support upon the theory of tbe first or tbe second paragraph of complaint, if we are correct in our bolding as to the effect of the general finding, tbat Deer was of unsound mind; and it remains to be determined whether they can be maintained upon the third *112paragraph of complaint. As to that sum, the finding is that it was a gift to the appellants, and there is no finding of positive fraud or undue influence. The parties treat the question, as to this sum, with reference to the doctrine of constructive fraud arising from the situation of confidence and dependence on the one side, and advantage on the other side, and we have no doubt it must be disposed of upon that doctrine upon any view of the findings.
The jury seem to have accepted the theory that the burden rested upon the Appellants to show that this money was rightfully received by them, and this theory presents the most important element of the present controversy. There can be no doubt of the general rule, that one occupying a fiduciary relation must, when the question is made, establish his right in equity and good conscience to any advantage gained by him from or through his principal, or his principal’s business. 8 Am. and Eng. Ency. of Law, p. 847 ; Pomeroy Eq. Jur., section 956; Bigelow Frauds, p. 278; Tiedmah Eq. Jur., section 235; Beach Modern Eq. Jur., section 141. This duty most frequently arises where'the relations between the'parties are those of attorney and client; principal and agent; trustee and cestui que trust; guardian and ward, and the like. But, there can be no doubt, that the sound rule applies, when, from the superiority of one side and the weakness, partial incapacity or dependence of the other, a substantial and apparently unconscionable advantage has been gained. Ewing v. Wilson, 132 Ind. 223; Ikerd v. Beavers, 106 Ind. 483; McCormick v. Malin, 5 Blackf. 509, and authorities cited; Woodbury v. Woodbury, 141 Mass. 329, S. C. 55 Am. Rep. 479; Ashmead v. Reynolds, 134 Ind. 139; Jacox v. Jacox, 40 Mich. 473; Highberger v. Stiffler, 21 Md. 338; Crawford v. Hoeft, 58 Mich. 1; Barnard v. Gantz, 140 N. *113Y. 249; Martin v. Martin, 57 Tenn. 644; Street v. Goss, 62 Mo. 226; Hill v. Miller, 50 Kan. 659; Paddock v. Pulsifer, 43 Kan. 718; Mott v. Mott, 49 N. J. Eq. 192; Muzzy v. Tompkinson, 2 Wash. 616; Fitch v. Reiser, 79 Ia. 34; Moore v. Moore, 81 Cal. 195; Boisaubin v. Boisaubin, 27 Atl. Rep. 624; Green v. Roworth, 113 N. Y. 462; Allore v. Jewel, 94 U. S 506.
By the findings, as to the sum now in question, Deer, while he was “old, weak, and childish,” while he made his home with the appellants, and depended upon them for such home and for personal care and attention, and while he depended upon Teegarden “to go with him and assist him in transacting all of his financial business,” he made to said Teegarden and his son-in-law and daughter, a gift of $3,850.00.
There is no finding that he was subject to, or easily influenced by their persuasion; there is no finding that they exercised any persuasion to obtain the gift, nor does it appear, that at the time of making it, he had no other property, nor that he, by making it, dealt unjustly or with inequality with his other children.
The naked question is: Will the relationship existing, together with Deer’s infirmities, enforce the presumption of undue influence and cast the burden upon the appellants of showing the absence of such influence?
Counsel for the appellants urge a distinction between the cases, where the ordinary fiduciary relation exists and those where the relation is that of parent and child. That such distinction has recognition in many of the authorities, is without doubt. However, many of the cases cited, last above, involve transactions between parent and child, and the distinction suggested was neither considered nor observed, but the ordinary rule was applied,
*114In Pomeroy Eq. Jur., vol. 2, section 962, in a chapter upon the subject of constructive fraud, and following a discussion of the rules with reference to advantages gained from the ordinary fiduciary relation, it is said: “Where the parent is aged, infirm, or otherwise in a condition of dependence upon his own child, and the child occupies a corresponding relation of authority, conveyances conferring benefit upon the child may be set aside. Cases of this kind plainly turn upon the exercise of actual undue influence, and not upon any presumption of invalidity; a gift from a parent to a child is certainly not presumed to be invalid.”
In Bigelow on the Law of Fraud, vol. 1, p. 357, under the head of constructive fraud, and after discussing, the question of conveyances and gifts by children to parents, where the parental influence may operate upon the hopes or fears of the child, it is said: “The influence which a child may exert over a parent on the other hand, by acts of filial duty and obedience, can never be undue influence. That influence is proper which any person gains over another by acts of pure kindness and attention and by correct conduct. In the case of a gift from a child to a parent, undue influence may be inferred from the relation itself, but never where the gift is from the parent to the child. * * A parent does not yield obedience to the child further than affection or duty prompts; and it is in accordance with the promptings of nature that parents should make gifts to their children.”
In Bemland v. Bradley, 2 Smale & G. 339, it is said: “There is no rule of this court which prohibits a man, by voluntary deed, from bestowing a benefit upon his son, or his grandson, or his son-in-law, even though only a few days before his death. To provide for his children or grandchildren is, or may be, a necessary duty; and where a father discharges that duty, this *115court will not presume fraud. If fraud is alleged, it must be proven in the ordinary way.”
In Wessell v. Rathjohn, 89 N. C. 377, S. C. 45 Am. Rep. 696, a father was in a condition, arising from debility, to make him easily subject to importunity and undue influence, and his child occupied a position affording an opportunity to exercise such influence: In this condition, the father made a deed of conveyance to- the child. It was held that undue influence would not be presumed, and in the course of the opinion it was said: “The facts stated are not inconsistent with the entire integrity of the deed, that is, the facts may be true, as stated, and the deed may have been executed in good faith and without the slightest improper act or conduct on the part of the grantee. The facts stated are evidence, not amounting to a presumption, to go to the jury upon a question of mala- fides when raised. It is not strange or unnatural that a father, feeble in health, of weak mind, and easily influenced by a daughter having opportunity to -exercise such influence, should give his daughter a house and lot and execute to her a deed for it. It is natural, that the father should provide for Ms daughter; this is a proper and orderly thing to be done. It is what the paternal feeling of good men prompts them to do; it is what just men commend and the law tolerates. Why should the law cast suspicion upon such a transaction? When the transaction, the deed, is right in itself, such as the law tolerates and the common sense of men approves as just, reasonable and commendable, and there is the absence of the relations of suspicion founded on motives of policy, no adverse presumption arises; on the contrary, the law presumes such deed or transaction in all respects proper and just until the contrary is made to appear. The burden is on him who alleges the contrary to *116prove it. * * * The relation of parent and child, as to presumption of fraud and ,the onus of proof to rebut the same, in business transactions between them, does not stand upon the same footing as the relation of trustee and cestui que trust, guardian and ward, attorney and client, principal and agent, and the like relations; it belongs to a different class of fiduciary relations, in which the presumption is not so strong, nor does it arise under the same circumstances. Besides, the presumption is always against the party having the superior dominant position or control, and this, in the case of parent and child, is that of parent.”' See also Jackson v. King, 4 Cowen 207, S. C. 15 Am. Dec. 354; Saufley v. Jackson, 16 Tex. 579. Howe v. Howe, 99 Mass. 88; Wray v. Wray, 32 Ind. 126.
In Saufley v. Jackson, supra, in speaking of the rule where the ordinary fiduciary relation has been abused, it was said “But it is clear that this rule was never applied, neither unqualified or qualified, to a. deed or gift from a parent to a child; and the reverse of such principle has always been sustained; and there is not believed to be a single exception to the principle that a deed from a parent to a child is always regarded with a favorable eye, and every presumption is in favor of its validity.”
In our opinion, the distinction contended for must rule the present inquiry. As to Mrs. Teegarden, that she was a daughter who discharged a moral obligation of supplying a home to and caring for the personal needs of her father, who was aged, weak, and childish, is all that can be urged to raise the presumption of undue influence on her part. In addition to a like discharge of obligation, John B. Teegarden went with and assisted Mr. Deer in transacting his financial business.
*117If tlie assistance of John R. Teegarden in the business affairs of Mr. Deer raised the fiduciary relation covered by the general rule, it is difficult to see how that fact could taint the gift as to Mrs. Teegarden. But, we apprehend, that more must appear as to both of the appellants. So far as the element of imbecility is concerned, the facts found are hardly sufficient to warrant the conclusion that Deer was an easy prey to the influences of either of the appellants, and there is an absence of any fact authorizing the inference that either of them sought the gift. If there is any strength in the exception to thegeneral rule,it is indispensable that some element of positive fraud shall be found. The conduct of the appellants, with reference to the gift, so far as the facts appear, is not only not objectionable, but it is highly commendable, save only, possibly, in receiving the gift from one mentally weak. Mental weakness alone is not claimed to be sufficient to avoid the gift. Neither the weakness of Deer nor the control of his affairs, as found, can authorize the conclusion that he was under the superior control or equitable guardianship of the appellants. Unless if can be said that he was in a situation that their will could probably be substituted for his, there can be no constructive fraud.
Our cases of McCormick v. Molin, supra; Ewing v. Wilson, supra; Ikerd v. Beavers, supra, and Ashmead v. Reynolds, supra, each involves some element of positive fraud, and in any of these cases the relationship existing between the parties differed from that here existing, in that no moral obligation rested upon the party parting with his property or extending the obligation to the party to be benefited, excepting in the case of Ewing v. Wilson, supra, and there the deed was from son to father.
The petition for a rehearing is overruled, and the *118mandate heretofore entered is, by the court, modified so that the judgment of the circuit court, as against John R. Teegardeu alone, is affirmed, and the judgment against John R. Teegarden and Huida Tee-garden jointly is reversed.