McCAMANT, J. —
1. It appears that Bridget M. Freeman was illiterate, but the preponderance of the evidence is that she was abundantly competent and that she had a mind of her own. She was in normal health when the deed was executed; she died of pneumonia eight months thereafter.
Grant Watts, the notary public who took the acknowledgment of the deed, testifies that he had previously advised Mrs. Freeman to execute a deed to this effect, that on the day when the deed was executed Mrs. Freeman was in her right mind and seemed to know what she was doing.. He further testifies that he read the deed, told Mrs. Freeman that “it was a deed with a life [433]*433lease in it”; that he (Watts) wrote Mrs. Freeman’s name as a signature and made her mark, while she held the top of the pen.
E. W. Price, one of the subscribing witnesses, corroborates this testimony in part. He says, “They told me it was a deed to Dan,” and that this remark was made in the presence of Mrs. Freeman. This was the only real estate which the grantor owned and she must have understood the remark as applicable to the property in question.
A. Bonser testifies that in April, 1912, Mrs. Freeman told bim she had conveyed the property to Dan. On May 21,1912, Mrs. Freeman joined with the defendants in a mortgage of the property to the Investors’ Mortgage Security Company Limited. O. M. Washburn, who took her acknowledgment of the mortgage, explained to her that her signature was necessary because of her interest in the place. Mr. Washburn testifies that Mrs. Freeman said she understood the transaction.
On the other hand, Mrs. H. A. Ehlers testifies that in August, 1912, Mrs. Freeman told her: “Dan has no deed; he has only a lease. ’ ’ Whatever the explanation of this testimony, the preponderance of the evidence is to the effect that Mrs. Freeman understood the purport of her deed when she executed it and that she realized several months thereafter that her son Daniel E. had a title to the property.
There is evidence that Mrs. Freeman was dissatisfied with the conduct of the • defendant Daniel E., but it nevertheless appears that in the last year of her life he was the only member of the family who saw anything of Mrs. Freeman, except only Carrie Freeman. This daughter died six months before her mother, after a lingering illness, during the latter part of which she [434]*434was helpless. Mrs. Freeman seems to have doubted whether plaintiff was still alive. In a letter written by plaintiff after the death of her mother she admits that she was at fault in failing to write her mother during the last twelve years of the latter’s life. In another letter plaintiff intimates that she had been advised of the death of her brother Jack, who died in 1911, and that of her sister Carrie, who died in April, 1912. Plaintiff sent no message of condolence to her mother on either of these occasions. The excuses offered for this long silence are that Mrs. Freeman was illiterate and that plaintiff’s relations with her sister Carrie were not cordial. There is evidence that Mrs. Freeman did not regard these excuses as adequate.
On January 17,1911, Mrs. Freeman gave a power of attorney to Daniel E. Freeman. This instrument was recorded in the records of Columbia County January 25,1911. On the advice of counsel who drew the deed in controversy, the power was revoked by Mrs. Freeman immediately prior to the execution of the deed. The powers granted by this instrument were very broad, but it appears by uncontroverted testimony that it was executed in order to empower Daniel E. Freeman to withdraw a deed which his mother had left in escrow with a Portland bank at a time when the sale of the property was contemplated. There is also some testimony that the power of attorney was given with a view to “some road matters down on the farm.” This last circumstance explains the fact that the power of attorney was placed of record. It does not appear that the power of attorney was used except for the purpose of withdrawing the deed from the bank.
2. There is testimony to the effect that Daniel E. Freeman, prior to the bringing of this suit, offered plaintiff $10,000 for her interest in the property if she [435]*435would wait till lie could sell the property. This was in the nature of a compromise offer which was not accepted. Apart from the fact that Daniel E. Freeman denies making the offer, the circumstance is unimportant. This denial is in conflict with the testimony of five witnesses and we cannot doubt that the fact is as contended by plaintiff. In this and in other respects the testimony of Daniel E. Freeman is unsatisfactory, but the controlling facts in the case are established by testimony other than that of this defendant. Some weight must be given to the fact that the lower court which saw the witnesses determined the issues in favor of the defendants: Scott v. Hubbard, 67 Or. 498, 505 (136 Pac. 653); Hurlburt v. Morris, 68 Or. 259, 272 (135 Pac. 531); Goff v. Kelsey, 78 Or. 337, 348 (153 Pac. 103); Shane v. Gordon, 84 Or. 627, 630 (165 Pac. 1167); Tucker v. Kirkpatrick, 86 Or. 677, 679 (169 Pac. 117).
3,4. It is contended by plaintiff that a relation of trust and confidence subsisted between Daniel E. Freeman and his mother and that therefore the burden of proof devolved upon him to sustain the deed made in his favor. It is also contended that in order to sustain the deed it is essential for him to show that in executing the deed his mother acted pursuant to independent advice. If a fiduciary relation existed as contended, the burden of proof devolved on the defendants to sustain the transaction: Jenkins v. Jenkins, 66 Or. 12, 17 (132 Pac. 542); Clough v. Dawson, 69 Or. 52, 60 (133 Pac. 645, 138 Pac. 233); Baber v. Caples, 71 Or. 212, 224 (138 Pac. 472, Ann. Cas. 1916C, 1025). Plaintiff’s contention as to the necessity of independent advice finds some support in Jenkins v. Jenkins, 66 Or. 12 (132 Pac. 542). Plaintiff also cites on this point Rhodes v. Bate, 1 Ch. App. 252, 257; Haydock v. Haydock’s Exrs., 34 N. J. Eq. 570, 575 (38 Am. Rep. 385); [436]*436Slack v. Rees, 66 N. J. Eq. 447 (59 Atl. 466, 69 L. R. A. 393); Post v. Hagan, 71 N. J. Eq. 234 (65 Atl. 1026, 124 Am. St. Rep. 997); Hensan v. Cooksey, 237 Ill. 620 (86 N. E. 1107, 127 Am. St. Rep. 345). The principle that a deed from cestui que trust to trustee will be upheld only when the former has acted under independent advice must be limited in its application to cases where by reason of ill health, mental infirmity, immaturity or otherwise, the party whose deed is attacked is unlikely to act wisely in the premises without disinterested advice. A party of normal mentality is entitled to dispose of his own in such manner as he sees fit: Carnagie v. Diven, 31 Or. 366, 368 (49 Pac. 891); Dean v. Dean, 42 Or. 290, 299 (70 Pac. 1039); Reeder v. Reeder, 50 Or. 204, 206 (91 Pac. 1075); Deckenbach v. Deckenbach, 65 Or. 160, 165 (130 Pac. 729); Wade v. Northup, 70 Or. 569, 578 (140 Pac. 451). While courts of equity are vigilant to redress fraud and imposition, the rules adopted for that purpose must not trench on the power of disposition which is incident to the right of private property.
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McCAMANT, J. —
1. It appears that Bridget M. Freeman was illiterate, but the preponderance of the evidence is that she was abundantly competent and that she had a mind of her own. She was in normal health when the deed was executed; she died of pneumonia eight months thereafter.
Grant Watts, the notary public who took the acknowledgment of the deed, testifies that he had previously advised Mrs. Freeman to execute a deed to this effect, that on the day when the deed was executed Mrs. Freeman was in her right mind and seemed to know what she was doing.. He further testifies that he read the deed, told Mrs. Freeman that “it was a deed with a life [433]*433lease in it”; that he (Watts) wrote Mrs. Freeman’s name as a signature and made her mark, while she held the top of the pen.
E. W. Price, one of the subscribing witnesses, corroborates this testimony in part. He says, “They told me it was a deed to Dan,” and that this remark was made in the presence of Mrs. Freeman. This was the only real estate which the grantor owned and she must have understood the remark as applicable to the property in question.
A. Bonser testifies that in April, 1912, Mrs. Freeman told bim she had conveyed the property to Dan. On May 21,1912, Mrs. Freeman joined with the defendants in a mortgage of the property to the Investors’ Mortgage Security Company Limited. O. M. Washburn, who took her acknowledgment of the mortgage, explained to her that her signature was necessary because of her interest in the place. Mr. Washburn testifies that Mrs. Freeman said she understood the transaction.
On the other hand, Mrs. H. A. Ehlers testifies that in August, 1912, Mrs. Freeman told her: “Dan has no deed; he has only a lease. ’ ’ Whatever the explanation of this testimony, the preponderance of the evidence is to the effect that Mrs. Freeman understood the purport of her deed when she executed it and that she realized several months thereafter that her son Daniel E. had a title to the property.
There is evidence that Mrs. Freeman was dissatisfied with the conduct of the • defendant Daniel E., but it nevertheless appears that in the last year of her life he was the only member of the family who saw anything of Mrs. Freeman, except only Carrie Freeman. This daughter died six months before her mother, after a lingering illness, during the latter part of which she [434]*434was helpless. Mrs. Freeman seems to have doubted whether plaintiff was still alive. In a letter written by plaintiff after the death of her mother she admits that she was at fault in failing to write her mother during the last twelve years of the latter’s life. In another letter plaintiff intimates that she had been advised of the death of her brother Jack, who died in 1911, and that of her sister Carrie, who died in April, 1912. Plaintiff sent no message of condolence to her mother on either of these occasions. The excuses offered for this long silence are that Mrs. Freeman was illiterate and that plaintiff’s relations with her sister Carrie were not cordial. There is evidence that Mrs. Freeman did not regard these excuses as adequate.
On January 17,1911, Mrs. Freeman gave a power of attorney to Daniel E. Freeman. This instrument was recorded in the records of Columbia County January 25,1911. On the advice of counsel who drew the deed in controversy, the power was revoked by Mrs. Freeman immediately prior to the execution of the deed. The powers granted by this instrument were very broad, but it appears by uncontroverted testimony that it was executed in order to empower Daniel E. Freeman to withdraw a deed which his mother had left in escrow with a Portland bank at a time when the sale of the property was contemplated. There is also some testimony that the power of attorney was given with a view to “some road matters down on the farm.” This last circumstance explains the fact that the power of attorney was placed of record. It does not appear that the power of attorney was used except for the purpose of withdrawing the deed from the bank.
2. There is testimony to the effect that Daniel E. Freeman, prior to the bringing of this suit, offered plaintiff $10,000 for her interest in the property if she [435]*435would wait till lie could sell the property. This was in the nature of a compromise offer which was not accepted. Apart from the fact that Daniel E. Freeman denies making the offer, the circumstance is unimportant. This denial is in conflict with the testimony of five witnesses and we cannot doubt that the fact is as contended by plaintiff. In this and in other respects the testimony of Daniel E. Freeman is unsatisfactory, but the controlling facts in the case are established by testimony other than that of this defendant. Some weight must be given to the fact that the lower court which saw the witnesses determined the issues in favor of the defendants: Scott v. Hubbard, 67 Or. 498, 505 (136 Pac. 653); Hurlburt v. Morris, 68 Or. 259, 272 (135 Pac. 531); Goff v. Kelsey, 78 Or. 337, 348 (153 Pac. 103); Shane v. Gordon, 84 Or. 627, 630 (165 Pac. 1167); Tucker v. Kirkpatrick, 86 Or. 677, 679 (169 Pac. 117).
3,4. It is contended by plaintiff that a relation of trust and confidence subsisted between Daniel E. Freeman and his mother and that therefore the burden of proof devolved upon him to sustain the deed made in his favor. It is also contended that in order to sustain the deed it is essential for him to show that in executing the deed his mother acted pursuant to independent advice. If a fiduciary relation existed as contended, the burden of proof devolved on the defendants to sustain the transaction: Jenkins v. Jenkins, 66 Or. 12, 17 (132 Pac. 542); Clough v. Dawson, 69 Or. 52, 60 (133 Pac. 645, 138 Pac. 233); Baber v. Caples, 71 Or. 212, 224 (138 Pac. 472, Ann. Cas. 1916C, 1025). Plaintiff’s contention as to the necessity of independent advice finds some support in Jenkins v. Jenkins, 66 Or. 12 (132 Pac. 542). Plaintiff also cites on this point Rhodes v. Bate, 1 Ch. App. 252, 257; Haydock v. Haydock’s Exrs., 34 N. J. Eq. 570, 575 (38 Am. Rep. 385); [436]*436Slack v. Rees, 66 N. J. Eq. 447 (59 Atl. 466, 69 L. R. A. 393); Post v. Hagan, 71 N. J. Eq. 234 (65 Atl. 1026, 124 Am. St. Rep. 997); Hensan v. Cooksey, 237 Ill. 620 (86 N. E. 1107, 127 Am. St. Rep. 345). The principle that a deed from cestui que trust to trustee will be upheld only when the former has acted under independent advice must be limited in its application to cases where by reason of ill health, mental infirmity, immaturity or otherwise, the party whose deed is attacked is unlikely to act wisely in the premises without disinterested advice. A party of normal mentality is entitled to dispose of his own in such manner as he sees fit: Carnagie v. Diven, 31 Or. 366, 368 (49 Pac. 891); Dean v. Dean, 42 Or. 290, 299 (70 Pac. 1039); Reeder v. Reeder, 50 Or. 204, 206 (91 Pac. 1075); Deckenbach v. Deckenbach, 65 Or. 160, 165 (130 Pac. 729); Wade v. Northup, 70 Or. 569, 578 (140 Pac. 451). While courts of equity are vigilant to redress fraud and imposition, the rules adopted for that purpose must not trench on the power of disposition which is incident to the right of private property.
5. Did Daniel E. Freeman sustain a relation of trust to his mother? The chief reliance of plaintiff on this branch of the case is on the power of attorney executed in his favor. We agree with the California Court of Appeals that this is a circumstance to be given weight in the determination of the question: Nobles v. Hutton, 7 Cal. App. 14 (93 Pac. 289). We also agree with the Pennsylvania Supreme Court that this circumstance does not of itself establish a fiduciary relation: Crothers v. Crothers, 149 Pa. St. 201, 205, 206 (24 Atl. 190).
The law applicable to the question in dispute is all based on the principle that no man can serve two masters. Where one owes a duty to another, he will not be permitted to take a position in which his interest [437]*437conflicts with his duty. He who is obligated to secure a maximum price for property will not be permitted to buy it, because of the conflict between duty and interest created by the purchase. An attorney must give disinterested service to his client, as must an agent to his principal. If, while the relation subsists, the attorney or agent secures an advantage to himself in his dealings with the client or the principal, equity will lay on him the burden of proving the transaction free from fraud and imposition. The purpose of the rule is to insure disinterested service, to protect against the misuse of a position of trust and confidence for purposes of spoliation.
6, 7. As attorney in fact for his mother, the evidence fails to charge Daniel E. Freeman with any such duty as makes the foregoing principle applicable. The only use made of the power of attorney, so far as the record shows, was the ministerial act of withdrawing a deed deposited in escrow. This act was done more than a year prior to the execution of the deed in question. The power of attorney was revoked just prior to the execution of the deed. If the relation had constituted a disqualification, its termination destroyed the disqualification: O’Reiley v. Bevington, 155 Mass. 72, 76, 77 (29 N. E. 54); Munn v. Burges, 70 Ill. 604; Bush v. Sherman, 80 Ill. 160, 171, 172; Watson v. Sherman, 84 Ill. 263, 266; Silverthorn v. McKinster, 12 Pa. 67, 71; First Nat. Bank v. Bissell, 4 Fed. 694, 698 (2 McCrary, 73); Chatham Bank v. McKeen, 24 Can. Sup. Ct. 348.
8-10. A fiduciary relation may exist in the absence of a trust or agency. It is found with its accompanying burdens- and disqualifications wherever there is confidence reposed on one side and resulting superiority and influence on the other: Walker v. Shepard, 210 Ill. 100 (71 N. E. 422); Irwin v. Sample, 213 Ill. 160 (72 [438]*438N. E. 687); 2 Pomeroy’s Eq. Jur. (3 ed.), § 956. The-evidence indicates that Bridget M. Freeman transacted very little business. Grant Watts cashed her pension checks for her. She lived simply at Scappoose on this pension and the rent paid by Daniel E. Freeman. The latter visited her from time to time, kept her supplied with fire wood and ministered 'to her in other respects as a son would ordinarily do for his mother. The evidence fails to show that he had an ascendancy over her mind or that his mother looked to him for counsel in respect to her property. The relation of parent and child, accompanied by the affection and the companionship incident thereto, does not make the child a fiduciary within the rule invoked: Bonsal v. Randall, 192 Mo. 525, 531, 532 (91 S. W. 475, 111 Am. St. Rep. 528); Jones v. Thomas, 218 Mo. 508, 536 (117 S. W. 1177); Gibson v. Hammang, 63 Neb. 349, 352 (88 N. W. 500); Burwell v. Burwell, 103 Va. 314, 316 (49 S. E. 68); Mackall v. Mackall, 135 U. S. 167, 172 (34 L. Ed. 84, 10 Sup. Ct. Rep. 705). Plaintiff has failed to show the existence of a fiduciary relation, and the burden of proof is therefore upon her to establish the facts relied on to set aside the deed.
11. This case is distinguished in important respects from most of the authorities relied on by plaintiff. Bridget M. Freeman did not strip herself of her property; she reserved a life estate, the revenues of which were adequate to her necessities. The importance of this circumstance is emphasized in Post v. Hagan, 71 N. J. Eq. 234, 242 (65 Atl. 1026, 124 Am. St. Rep. 997), and Oliphant v. Liversidge, 142 Ill. 160, 170 (30 N. E. 334). The deed was promptly placed of record and immediately after Daniel E. Freeman got in communication with plaintiff he advised her of its exist[439]*439ence. The circumstantial evidence is strongly against plaintiff’s contention that Daniel E. Freeman procured the execution of the deed with the fraudulent purpose of depriving plaintiff of her inheritance. The fact is that plaintiff had not been heard from for ten years; she had dropped out of the life and thought of the family. The grantor in the deed was in good health and of normal mentality at the time when the deed was executed. Mrs. H. A. Ehlers, a witness for plaintiff, testifies, “she was bright enough for her age.” The grantee was not living in the same house with the grantor. In view of the circumstances the deed was a natural one for the grantor to execute. It is true that the grantee employed the attorney who drew the deed. This has been held to be a circumstance of but little significance: Teter v. Teter, 59 W. Va. 449, 463 (53 S. E. 779). It is probable that the deed was executed at the suggestion or request of the grantee. But this does not constitute undue influence, nor does it in any wise vitiate the conveyance: In re Blair’s Will, 16 Daly, 540 (16 N. Y. Supp. 874, 876); Doran v. McConlogue, 150 Pa. St. 98, 116 (24 Atl. 357); Schofield v. Walker, 58 Mich. 96, 106 (24 N. W. 624); Yoe v. McCord, 74 Ill. 33, 44; Teter v. Teter, 59 W. Va. 449, 460 (53 S. E. 779).
“It is true that a court of equity is by the settled law of this and other states required to, and it will, scan a transaction of the kind here in question with the utmost vigilance and scrutiny. But that is an entirely different thing from presuming the existence and actual exertion of undue influence from the circumstances mentioned”: Slayback v. Witt, 151 Ind. 376, 382 (50 N. E. 389).
12. No presumption of invalidity attaches to the deed in question: Sawyer v. White, 122 Fed. 223, 225 (58 [440]*440C. C. A. 587). Plaintiff has failed to prove the allegations on which she relies. The decree of the Circuit Court was right and it is affirmed. Affirmed.
McBride, C. J., and Bean and Benson, JJ., concur.