{concurring in part). The trial judge, in the course of his instruction that a verdict be returned upholding the instrument in contest, ruled that there was an absence of evidence of undue influence. Judge Martin thus overruled contestant’s claim that the testified relationship between attorney Kohn and testator Fay gave rise to a presumption of undue influence. I agree with him and would decide the point of presumed undue influence on ground that the evidence did not at any stage give rise to the asserted presumption.
Some evidence must show, before the presumption may come to justiciable consideration, „ that the *98claimed fiduciary relationship did in fact exist when the instrument in question was conceived and executed (In're Cottrell’s Estate, 235 Mich 627). Here there is no such proof of fiduciary trust and dependency, distinguished from professional consultation and the usual relations of attorney and client. Accordingly (and as was done in Salvner v. Balmier, 349 Mich 375, 384, 385), I would apply to contestant’s said contention the following rules: '
“It is urged that because defendant for a number of years looked after testator’s business and property, collecting rents, dividends and mortgage payments for him, and paying taxes, repair bills, ét cetera, a fiduciary relationship existed between them, giving rise to a presumption of undue influence on defendant’s part. We are mindful of the holdings in In re McMaster’s Estate, 163 Mich 210; and Scheibner v. Scheibner, 220 Mich 115; and others of like import, which plaintiffs cite as authority for their claim of a fiduciary relationship here. At the same timé, it is to be noted that in In re Cottrell’s Estate, 235 Mich 627; and In re Lacroix’s Estate, 265 Mich 59, it was held that the mere assisting with and conducting of testator’s business affairs does not give rise to a fiduciary relationship. We think the term should he held to mean what the word ‘fiduciary’ implies and that the relationship exists only when there is a reposing of faith, confidence and trust and the placing of reliance by one upon the judgment and advice of another. No such situation was established here.” (Quotation from In re Jennings’ Estate, 335 Mich 241, 243, 244.)
■ Excepting only as to his treatment of the question of presumed undue influence, I concur fully with the reasoning and result Mr. Justice Carr has written.
Smith, Edwards, and Voelker, JJ., concurred with Black, J.