White

I concur in the judgment. At the trial the plaintiff testified that in 1891 she loaned to the defendant the money sued for, and that no portion of it had been paid. She also testified that the money loaned him was her separate property, and was used by him in building a house upon a lot of land which was his separate property. This testimony of the plaintiff that the money was loaned to the defendant authorized a judgment in her behalf, unless he should by some affirmative evidence overcome the liability thus created.

The theory upon which the action is defended, although there is no averment of that nature in the answer, is that the money which the defendant received from the plaintiff, was a gift. This was affirmative matter, of which the onus was upon him to establish by a preponderance of evidence. There was no evidence other than that of the plaintiff of the circumstances attending the transaction between her and the defendant, and it was net disputed that the defendant did in fact receive the money from her; and, while it was competent for him to show that he received it as a gift, there is no presumption that it was a gift; but, in the absence of any other evidence than…

I dissent. The court peremptorily instructed the jury to find for the plaintiff; and, in my *326 opinion, it ought to have been left to the jury to determine1 whether or not tire money sued for was a loan or a gift. Upon that question the evidence was clearly conflicting. The plaintiff testified that it was a loan and not a gift, but her cross-examination and the evidence introduced on the part of the defendant left that question in great doubt, and it was a proper question to-go to the jury. The question here was not whether a certain gift was procured by undue influence, but whether a certain transaction was a loan or a gift. There was no pretense on the part of the plaintiff that the transaction was a gift obtained byunuue influence; her testimony, in which the transaction is given in detail, clearly establishes, in my opinion, that, whether it was a gift or a loan, there was no undue influence. It appears to have been considered necessary for the defendant to have appeared and testified that the gift was not procured by undue influence, or to-have produced some other evidence establishing that point; but, if the defendant had testified that there was no undue influence, the…

Jane Warren, the wife, brought this action against John K. Warren, her husband, to recover about six thousand dollars, money alleged to be loaned to him by her. She secured a judgment for the amount, and subsequently died pending further proceedings. The present plaintiff is the executor of her last will and testament. Defendant by his answer denied the allegations of the complaint. At the trial plaintiff established a prima facie case under her pleading. Defendant thereupon introduced some evidence tending to show that the *323 money received by him from his wife was not money loaned, but ■a gift to him from her. Upon this state of the evidence the case was submitted to the jury under certain instructions of the court as to the law. In this regard the court instructed tire jury to find a verdict for the plaintiff, holding in substance that, as plaintiff and defendant were wife and husband, it devolved upon the husband, who claimed to have received the gift, to prove that such gift was made without any undue influence on his part, the presumption being that, in the absence of proof to that effect, there was such undue influence used. Upon the legal soundness of the principle of…

I concur in the judgment and in the opinion, except in the comments upon Dimond v. Sanderson, 103 Cal. 97 , and Tillaux v. Tillaux, 115 Cal. 663 . I think an advantage is gained within the meaning of the law when anything of value is obtained. When it is shown by a trustee that value was also given, the presumption that it was without consideration has been overcome. The trustee must then show that the transaction was fair, and that no advantage was taken and no undue influence used. As to the cases cited, in view of the ■discussion here, they do not entirely satisfy me.