(dissenting).
ACTION
This action to vacate a contract for deed and cash transfers, being equitable in nature, is on meritorious appeal to this Court. The majority opinion permits the Frenches to enrich themselves at the expense of an elderly lady, Mrs. McWilliams (her estate), thereby weakening the safeguards which courts of equity have historically employed to protect the weak. I dissent as the evidence does not disclose that the Frenches were the Good Samaritans they professed themselves to be unto Mrs. McWilliams nor to the South Dakota courts. Rather, the factual history reflects that the Frenches took advantage of Mrs. McWilliams by gaining her confidence, placing themselves in a fiduciary relationship, abusing that confidential and fiduciary relationship, *682profiting exceedingly when they were in a dominant position as compared to the dependent position of Mrs. McWilliams, and by garnering most of her earthly possessions and home before she died. By this dissent, I sustain and defend her cause.
. There are three principal issues to this appeal which are recited and treated below with supporting reasons and authorities. To avoid repetition, the facts are not separately set forth but are included in the discussion on the issues.
ISSUES
1) Did a confidential relationship exist as between Mrs. McWilliams and the Frenches at the time of the real estate transaction by which Mrs. McWilliams contracted to sell her home in Rapid City to the Frenches? Yes, and, in my opinion, this included a fiduciary relationship encompassed within that confidential relationship.1 The majority opinion is actually reversing the trial court on the issue of confidential relationship although it does not expressly say so. The majority opinion must necessarily had to have found that the trial court’s decision in this regard was clearly erroneous. With this aspect of the majority decision, I agree.
2) At the time of the real estate transaction, and conceding that a confidential relationship existed between the Frenches and Mrs. McWilliams, did the Frenches meet their burden of proof that (a) they took no unfair advantage of their dominant position and (b) that they did not unduly profit at the expense of Mrs. McWilliams? No, and as detailed below, the transaction was unfair, inequitable, and the Frenches unduly profited arising from the confidential relationship causing a significant loss to Mrs. McWilliams.
3) The trial court found that a confidential relationship existed subsequent to the sale of Mrs. McWilliams’ home to the Frenches. Is the estate of Mrs. McWilliams entitled to a judgment for approximately $31,456.09 constituting money in the form of “gifts,” money which the Frenches obtained from Mrs. McWilliams when this confidential relationship existed? Yes, as treated below, for the reason that not only did a confidential relationship exist, but a fiduciary relationship as well, and the gifts cannot be sustained for the Frenches were the dominant individuals and Mrs. McWil-liams was dependent upon them. The gifts were presumptively fraudulent and voidable and the Frenches failed to overcome this presumption.
I.
Not once, but twice, Mrs. French testified that “I told her she would never have to be lonely again.”
Counsel: When was it that you told her that for the first time.
Mrs. French: Oh, probably after I met her, a month or so.
During examination of Mrs. French, this question was further asked:
Counsel: And again, there was a time when you advised Mrs. McWilliams that you would take care of her for the rest of her life?
Mrs. French: Yes. I told there was— that we would see that she was never lonely and that we would see that she had money. (Emphasis mine.)
Author’s note: The Frenches had no money to give to Mrs. McWilliams; Mrs. McWilliams had sufficient money to comfortably care for herself throughout her short life expectancy.
A nephew, Charles Bruggeman, testified that he called on Mrs. McWilliams approximately one month prior to the sale of the home. He was told that he was, in effect, discharged from his duties which he had previously performed for his aunt in connection with her business affairs. And, henceforth, the Frenches would look after her business affairs for her. (Emphasis mine.) The record discloses that the Frenches, indeed, proceeded to attend to her business affairs (other than the contract for deed transaction). Example: Mrs. *683McWilliams sold her Harding County land and received a check for $7,974.29 from the real estate agent who handled the sale and then turned the check over to the Frenches. This check was deposited in their bank account and they admitted using it for their own purposes. Until such time as they placed Mrs. McWilliams in a nursing home (she was crying as Mrs. French left), the Frenches received checks on Mrs. McWil-liams’ bank account, cashed certificates of deposit belonging to Mrs. McWilliams, and placed their names on her bank accounts. Many checks, signed by Mrs. McWilliams, were in Mrs. French’s handwriting. There can be no doubt that, within the broad framework of the inceptual confidential relationship, there came into existence a fiduciary relationship. Lewis Rohrer, trust officer of the National Bank of South Dakota,2 testified that Mrs. McWilliams related to him (after she had been left in a nursing home) that she placed full confidence in the Frenches and signed various documents for them and did not pay attention to what she was signing. After leaving Mrs. McWil-liams in a nursing home, Mrs. French wrote to Mrs. McWilliams which writing, among other things, stated: “I will bring you a complete financial statement and a list of your furniture in a week. When I try to talk to you, you don’t understand, we just talk in circles.” (Yes, Mrs. McWilliams was quite elderly and perhaps could not understand all of the representations or actions of the Frenches. This is why equity should protect and shield her.) The financial statement was never furnished. One day prior to admitting Mrs. McWilliams to the nursing home, Mrs. French prepared a document, on file herein, which purported to be a will yet required the signatures of Mrs. McWilliams and the Frenches. Under this instrument, Mrs. McWilliams would leave all of her possessions and money unto the Frenches who in turn would provide for her care. Mrs. McWilliams refused to sign. By this time, and she so expressed, she realized that the Frenches had taken her money and that she had been dumped. In determining the existence of a confidential relationship as applied to this case, I also approve of the language contained in Hyde v. Hyde, 78 S.D. 176, 99 N.W.2d 788 (1959) and Davies v. Toms, 75 S.D. 273, 63 N.W.2d 406 (1954) (Davies), cited in the majority, as authority for determining that a confidential relationship existed in this case. Under the evidence herein, however, contrary to the admonition of Davies, the Frenches took an unfair advantage of their dominant posi-ion. Ending up with her home and most of her money was taking advantage of her. If their acts were for love and charity, why was that not the harvest? The harvest was property and money.
II.
At the time of the real estate transaction, Mrs. McWilliams was a widow of 83 years of age with a fourth-grade education and no business experience. Undeniably, she was lonely. She apparently had no close acquaintances or relatives in Rapid City and her two nephews lived in Belle Fourche, one of whom was close to her. The Frenches were in the prime of life, Kenneth French being 47 and Betty French 48 years of age. Mr. French was a businessman.
Concerning the sale of Mrs. McWilliams’ home to the Frenches, the majority opinion notes: “Neither Mr. nor Mrs. French informed Mrs. McWilliams of this fact” (that the going interest rate in Rapid City at the time of the sale ranged from six to eight percent). Notwithstanding this observation, the majority opinion finds no wrongdoing on the house sale. The majority opinion fails to recognize that once it has been established that the Frenches were in a confidential or fiduciary relationship, they owed a duty to divulge a fair rate of interest to her. McClintock On Equity at 224 (1948), tells us: “An intentional, active *684concealment of a fact of which the other party is known to be ignorant has the same effect as a false statement, but mere nondisclosure does not invalidate the transaction, unless some previous relationship or transaction between them has imposed some obligation to make disclosure.” McClintock further states at 225: “The principle that a party can keep silent with respect to matters of which he knows the other is ignorant applies only when the parties are dealing at arm’s length. Where there is such a relationship between them, or such relationship has recently existed, as to justify the mistaken party in relying upon the other for information with respect to the transaction, the latter must make full disclosure.” The Frenches failed to make full disclosure. During the course of trial, witness Lewis Rohrer submitted a summary, duly received into evidence, reflecting that monthly payments on $40,-000.00 amortized over 20 years at 8% interest would amount to $334.58 per month or $150.58 more than the monthly payments of $184.00 provided for by the contract. Such computation reflects a difference of $36,-139.20, which the Frenches would pay under an 8% interest rate as compared to a 1% interest rate under the contract. This offends one’s sense of good morals and fair dealings and should require a court of equity to act in response thereto. This unfair interest rate was known to the Frenches, they who said they would take care of her the rest of her life and who said she would never be lonely again. Yes, and they who “would see that she had money.” As the record indicates, the Frenches, a few years earlier, had paid 6¾% interest on their loan to get into the grocery business. These facts, these figures, demonstrate that the Frenches took unfair advantage of Mrs. McWilliams and that they profited handsomely at her expense. For people who were going to do good (to her), they did very well. Mrs. French admitted, under oath, that neither she nor her husband ever suggested to Mrs. McWilliams that the 1% interest rate was not a fair rate or the going rate of interest.
Counsel: You just took the position that if she was satisfied with that (1%), why that is the way it would be; is that right?
Mrs. French: Yes.
It is obvious from reading the record that Mrs. McWilliams honestly believed that a 1% interest rate was legally alright because the SBA was making 1% interest loans to flood victims in Rapid City. She had heard it on the radio. Equity was born out of conscience. Does not equity owe a duty to impose conscience on the Frenches? No downpayment and no payments for two years is also unconscionable.
Mrs. McWilliams called upon her attorney, Mr. Christol, not with seeking advice on her mind to accept his counsel. Rather, she called upon her attorney to have the contract prepared (exactly as she and the Frenches had decided) then being under their total influence and dominion.
Seemingly, the majority opinion would instill the Frenches’ position with a defense because Mr. Christol’s advice was sought. But the majority opinion fails to recognize that this is only a defense when the advice is sought and acted upon, and not when the advice is given and then rejected by a closed mind. As in Davies, cited in the majority opinion, “[h]er mind was made up.” 75 S.D. at 279, 63 N.W.2d at 409. This case supports my position that the advice given implies at least an apparent open-mindedness on the part of the recipient, and Mrs. McWilliams did not have an open mind. I further believe that language found in In Re Daly’s Estate, 59 S.D. 403, 240 N.W. 342 (1932) (Daly), supports my position that the rejected advice of Mr. Christol does not obliterate or soften the overreaching of the Frenches. Daly quotes from Jones’ Commentaries on Evidence, vol. 2, § 190:
One of the most important requisites of the validity of these transactions between persons acting under the influence of these confidential relations is, that the party presumably under the influence of the other should have had independent advice from a lawyer, who is devoted *685entirely to the interest of the party he is called upon to advise, and in whom that party had entire confidence.
Daly, 59 S.D. at 408, 240 N.W. at 344. At no time did Mrs. McWilliams place any confidence in Mr. Christol’s advice. She ignored it.
As indicated in Dibel v. Meredith, 233 Iowa 545, 10 N.W.2d 28, 30 (1943) (Dibel), a confidential relationship (in the instant case, it was fiduciary as well) was explained “[i]n law it has been defined or described as any relation existing between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith for the benefit of the other party.” Here, the Frenches did not act in good faith for Mrs. McWilliams; they acted for themselves. In Matter of Estate of Herm, 284 N.W.2d 191, 200 (Iowa 1979), the Supreme Court of Iowa approved of its language in Dibel and further expressed: “Where such a confidential relationship exists, a transaction by which the one having the advantage profits at the expense of the other will be held presumptively fraudulent and voidable.” I disagree with the conclusion of the majority opinion that the Frenches took no unfair advantage of their dominant position. The results of their efforts patently establish unfair advantage.
III.
Of the $31,456.09 that the Frenches obtained from Mrs. McWilliams, the Frenches maintain this accumulation was a series of gifts except for the first $4,000.00 they obtained from her.
When the Frenches put Mrs. McWilliams into the nursing home against her wishes and left her crying and confused, she was apparently given a check for $11,200.00. Ostensibly, this was in repayment of a $4,000.00 note and a refund of the proceeds of the sales of Harding County land, plus interest thereon. The trial court found a. confidential relationship between Mrs. McWilliams and the Frenches, but confined this finding to all times subsequent to the sale of the home. Mrs. French took Mrs. McWilliams to various banks and savings and loan associations where Mrs. McWil-liams had money on deposit, for the express purpose of having Mrs. McWilliams withdraw money from her accounts to turn the money over to the Frenches. In this, the confidential relationship was used and abused and the gifts are presumptively fraudulent and voidable and the Frenches have failed to overcome this presumption. Moreover, the Frenches were writing checks and conducting the business affairs for Mrs. McWilliams, and occupied a fiduciary relationship with her.3 36A C.J.S. Fiduciary § 389 (1961) provides:
It is a doctrine repeatedly announced that courts of equity will scrutinize with the most jealous vigilance transactions between parties occupying fiduciary relations toward each other, and particularly any transaction between the parties by which the dominant party secures any profit or advantage at the expense of the person under his influence.
Transactions between parties to a fiduciary relation are presumptively fraudulent and void, and will be stricken down unless their fairness is established by clear and convincing proof, and the burden of proof is on the party asserting validity with respect thereto.
Accord, Merritt v. Easterly, 226 Iowa 514, 284 N.W. 397 (1939). The Frenches have not met any burden of proof to establish fairness in securing these thousands of dollars of gifts in a short period of time from an absolute stranger who, one month after she met them, was told that she would never be lonely again and “we would see that she had money.” Thus, the trial court’s finding that the Frenches “did not *686take unfair advantage of Olivia” is clearly erroneous. This reviewing Court should be left with a definite and firm conviction that a mistake has been committed. In Re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 459 (1970). The Frenches did not see that Mrs. McWilliams had money. Rather, they took her money.
Mrs. McWilliams obviously turned over these large sums of money to the Frenches for a reason. The only logical explanation is that she honestly believed that the Frenches would take care of her for the rest of her life. The trial court awarded the estate, and thus, Mrs. McWilliams, a sum equal to the amount which the trustee had expended for Mrs. McWilliams’ care in the nursing home. The rationale of the trial court was founded in equity. ' The trial court expressed “I conclude that they [the Frenches] should be required to reimburse Olivia’s [Mrs. McWilliams] estate for the expenses paid for her care and keep, including medical costs, if any, and incidentals. Since they have had the use of the money in the meantime, it should bear interest from the date of Olivia’s [Mrs. McWilliams] death. If there is a credit left over on the computations concerning the $12,200 and the $4,000 loan and land sale proceeds, it will be credited on this item.”4
As a fiduciary, the Frenches had no right to breach or abuse their relationship with Mrs. McWilliams. See Dobbs, Law of Remedies at 680 (1973). I would reverse and direct that the trial court enter a judgment voiding the unconscionable contract for sale and further direct the trial court to credit the Frenches for the money expended in the repair, remodeling, and improvement of the real property. Furthermore, I would reverse and direct the trial court to restore unto the estate all inter vivos gifts plus interest, believing that a court of equity will not suffer a wrong to be committed without fashioning a remedy. This well could include the appointment of a referee to take evidence to establish the necessary arithmetic calculations to put the court’s judgment into effect. See McClintock on Equity at 76.
. See In Re Rowlands’ Estate, 70 S.D. 419, 18 N.W.2d 290 (1945), wherein Justice Roberts recognized the theoretical concept of a confidential and fiduciary relationship.
. In 1975, acting under the dominion of the Frenches, Mrs. McWilliams changed her will to include the Frenches as her sole beneficiaries. Believing that she had been mistreated and abused by the Frenches, on April 11, 1977, she executed a new will disinheriting the Frenches which named the National Bank of South Dakota as trustee and thereby willed her remaining earthly possessions to a sight foundation and medical research programs.
. The Frenches secured and kept Mrs. McWil-liams’ strong box in their home which contained her valuables. The trust officer obtained it and her bank statements. Investigating the transactions over a period of months, the trust officer compiled a list of transactions that unveiled the overreaching and said list is Exhibit “7” herein. The trust officer also obtained a list of furniture and personal belongings of Mrs. McWilliams from the Frenches shortly before she died. These were sold at public auction.
. I deduce that the trial court required the repayment of a $4,000 loan and a $11,200 check and $1,000 check the Frenches gave Mrs. McWilliams upon and after entry into the nursing home. Although not clear, the $12,200 must represent the return of a land sale proceeds in Harding County plus interest.