The opinion of the court was delivered by
Powers, J.
Courts of equity look with a jealous eye upon all dealings between persons sustaining confidential relations to each other. They will not allow guardians, trustees, attorneys or other persons, whose duty it is to guard the interests of others to reap any advantage from the trust relations. They will not allow the promptings of self-interest to come in conflict with the requirements of duty.
This rule does not rest upon the theory that any actual fraud is present in the particular transactions; but upon the broader ground that in such relations no opportunity to commit fraud shall be tolerated. The chance to do a wrong is the lifons et origo malorum.” The jurisdiction, of courts of equity to set aside dealings in cases of this character, has long been established ; but the courts have always been careful not to fetter their jurisdiction, by defining the exact limits of its exercise.
At the time the gifts were made in this case, Sarah M. and Mary P. Allen were both minors, and Charles P. was their legal guardian. In addition to the influence incident to this relation, Charles P. sustained the nearer and more potential relation of a brother, enjoying the unlimited confidence and affection of his sisters. The father and mother had both deceased, leaving Charles as the substantial head of the family. The girls, undoubtedly, had but little practical knowledge of the large fortune left them by their father, nor of the very considerable additions made to it by the death of their mother. Charles held in his hands the [62]*62entire estate that came from both sources; and controlled and managed the same at his own will, doubtless, without consultation with his sisters or any one acting in their behalf. The most that is learned respecting the circumstances under which the gifts were made, comes from the testimony of Sarah, who details the circumstances under which hers was made. We have no information as to what was said to, or by Mary, when she made her gift; but the instrument attesting it would raise the inference that is was brought about substantially as Sarah’s was. Charles being dead, it is apparent that Sarah’s testimony, respecting the details of the transaction by which she turned over to Charles a portion of her estate which she now seeks to recall, cannot under our statute be used. The exclusion of her testimony, however, does not we think aid the defendants. It is an universal rule that a guardian seeking to hold a benefit conferred by his ward, takes the burden of showing that the ward, with full knowledge of the character of the act he was doing, freely and voluntarily made the gift. Kerr on Fraud and Mistake, 151. In the absence of such proof, the presumption arises that the gift was prompted by the influence and pressure of the confidential relations subsisting between the parties. And the scrutiny which courts apply to gifts in such cases is more searching than in cases of contracts made between the parties.
Bispham’s Equity, 3d ed. 291 : “ The relation of guardian and ward is one in which the presumption (of undue influence) exists, perhaps in the highest degree, and a transaction between persons thus situated during the continuance of the relationship, and especially if it takes the form of a gift, can rarely, if ever, stand.” Bispham’s Equity, 294.
Therefore discarding the testimony of Mrs. Wade, the case is barren of facts tending to show that these wards made the gifts voluntarily or understandingly. It is true that the masters say on page thirteen, printed report, that “ considering the lapse of time and other circumstances as well as what the witness (Mrs. Wade) stated, they are fully persuaded that Charles P. fairly and fully stated to the witness the reason for his asking for the [63]*63transfer, and that the witness freely and under standingly signed the transfer.”
Eliminating from this summary of the grounds upon which the masters base their conclusions, the testimony of Mrs. Wade which they had no right to weigh, and the -conclusion to which they arrive is left to stand upon “lapse of time” and “other circumstances.” But lapse of time is no evidence that Charles imparted to Sarah the reason for soliciting the gift, nor that she understandingly and freely made it. Indeed, as we have seen, when the relation of guardian and ward is shown to exist, the presumption at once arises that the gift was not freely made. And it is equally true that time never puts an end to this presumption. Lapse of time might support a claim that Sarah had acquiesced in the transaction if it had been followed by a long delay, unexplained, before she called it in question. But acquiescence is not predicable of a valid gift; such gifts are always good. It is only when the gift is originally voidable that it is made irrevocable by acquiescence. The protection afforded by lapse of time therefore, can be invoked only, when the original gift was not freely and understanding^ made. There are no “ other circumstances ” in the case that throw any light whatever upon the manner in which the gifts were originally made.
Accordingly, by force of the rule above cited, which calls upon the guardian to supply this proof, the presumption of undue influence arises, and the gifts must be treated as voidable when made, and as voidable now unless they can be supported upon the ground of acquiescence. In the consideration' thus far given to the transactions in question, no prominence has been given to the fact that the girls were minors when the gifts were made ; because the age or capacity of the persons making the gift is of little importance in cases where a confidential relation exists. It is not the incapacity of infancy, but the incapacity of wardship that enables these girls to complain. It is not a question involving dealings between an infant, incapable of binding himself, with an adult, who may be bound. It is a question between a ward who is incapable of giving, and a guardian incapable of accepting. The relation between the parties thus creates a mutual disability. [64]*64The disability would exist all the same if both parties were of full age and unquestioned capacity.
The presumption that arises from the relation of the parties, that the gifts were not originally freely and understandingly made, but were the result of pressure, is so inexorable, that no loss of evidence that would support their validity will induce the court to waive or bend the rules. Says Turner, L. J., in Gresley v. Mousley, 4 DeGex & Jones, 98, speaking of the validity of dealings between solicitor and client: “ Solicitors who deal with their clients must take care not only that the transaction is fair, but that they are in a condition to prove that it was fair.” In the case just cited decided in 1859, a transaction between a solicitor and his client was set-aside on a bill filed two years after the death of the solicitor and nearly eighteen years after the death of the client. This case is adopted as the true rule in Kerr, P. and M. 307 ; has been often cited with approval in later English decisions, and is now the unquestioned law upon the subject. Some members of the court are inclined to hold, in consonance with some of the early cases, that these gifts are absolutely void, and so incapable of confirmation. But the better rule deducible from the cases is, that though prima facie void, they may be confirmed by the subsequent acts or conduct of the wards.
The question then arises whether these gifts have been confirmed, or so long acquiesced in, as to bar the orators of the relief they seek. It is not claimed that the wards have done any affirmative act expressly confirming the gifts. But it is said, that, by reason of the lapse of time, the examination made by the wards of the guardian’s accounts with the aid of their husbands and attorneys, their declarations in the presence of Mrs. Powell, and other facts and circumstances referred to in the report, the wards are now concluded on the ground of acquiescence from questioning the defendants’ rights to retain the gifts.
This defence is met by the orators with the claim that during all the time since the final settlement of the guardianship accounts both wards have been married women. “ One under a disability cannot be presumed to have released a right.” 2 Perry on Trusts, 2d ed., s. 867.
[65]*65In this case, however, it is to be noted, that both wards, after their marriage, held their property as their own separate estate, and in equity could deal with the same, as freely as they could if unmarried. It is not apparent, therefore, why they might not, as to such estate, be bound by acts of confirmation or by acquiescence as effectually as if sole. 1 Perry on Trusts, s. 467 ; 21b. s. 849.
Acquiescence is matter of defence. It is not a line of conduct that, by relation back, makes the gifts valid ab initio ; but is a state of facts arising ex post facto ¡ that enables the defendant to say that no remedy is available to the claimant to set aside the gift. Hence the burden of proof to show acquiescence is upon the person claiming to hold the gift. Kerr, Fraud and M., 301. And this burden is discharged not by guesswork; but substantial facts must be proved, or the defence fails. To make out the defence it must be shown, 1st, that the wards knew that the gifts were invalid, and that they have the right to set them aside; 2d. that knowing these facts they have consented for an unreasonable time that the gifts might stand unquestioned; and 3d, that this consent is the result of their free and intelligent choice and not the product of the pressure and influence of the confidential relations existing between the parties.
I. The wards must know that the gifts were invalid and their right to have the property restored to them.
“ A man cannot be said to acquiesce in what he does not know, nor can he be bound by acquiescence unless he is fully apprized as to his rights, and all the material facts and circumstances of the case.” Kerr, Fraud and Mistake, 300.
In Stump v. Gaby, 2 De G. M. & G. 628, 631, the Lord Chancellor, speaking of an alleged confirmation of former dealings between an attorney and his client, says: “ The attorney has to show that the confirmation was made by the client with a full knowledge of his rights to set aside the conveyance.”
Lord W estbury uses similar language- in Farrant v. Blanchford, 1 De G. J. & S. 118. Lord Redesdale in Murray v. Palmer, 2 Sch. & Lef. 474, has epitomized the doctrine of the cases as follows : “ Now I take it that nothing will amount to a confirma[66]*66tion of a fraudulent transaction but an act done by the party after he has become fully aware of the fraud that has been practiced ; he must be aware that the act he is doing is to have the effect of confirming an impeachable transaction.” In Kemp-son v. Ashbee, 10 Chan. App. 15, Lord Cairns lays down the same rule. Applying this rule to the facts reported, we shall see that the defence of acquiescence cannot be sustained ; that no one of the three enumerated conditions by which it is to be upheld, exists in the case.
We start in this inquiry without any evidence that the wards understandingly made the gifts in the first instance. The masters say that there was no evidence that Sarah and Mary ever talked with Charles after coming of age in regard to these gifts; and as to Sarah, that she never consulted any one in regard to her gift or her right to annul it until a short time before this suit' was brought.
The case is entirely barren of .facts to show that the girls were ever informed by their husbands, their attorneys or any other persons that they might undo these transactions. The talk testified to by Mrs. Powell proves nothing on this point. She heard Mary say she wanted Charles to have as much as she did; and Sarah said “ I don’t regret it now.” A mere fragment of a conversation without showing the connection, and testified to years after it occurred, is pretty slim evidence to prove any fact. But the language testified to cannot be tortured even into a guess, that the girls knew they might set aside the gifts.
The investigation made at St. Albans Jan. 1, 1872, throws no light upon the question. In the first place the subject-matter of Mary’s gift was not mentioned there by Charles, Judge Stewart, Mr. Somers, Mr. Beauclerk, or anybody else. The meeting was not appointed to consider that subject, but to examine Charles’s account. It is true the account contained a reference to the gift; but no witness can say that anything was said about it. The attention of Mary was called to the inventory of a large amount of real and personal property belonging to her, and Mr. Somers and Judge Stewart discussed values, as the examination went on.
Mr. Royce and his wife, who would naturally have an interest [67]*67for Mary, are ignored in the investigation. Judge Stewart before going to St. Albans had prejudged the case and determined to allow the account. He professed to act as Mary’s attorney; but his appointment was void as she was a minor without authority to appoint an attorney. The time was the day before Mary’s appointed marriage. Mary could know and appreciate but little of the business that was being done. It is absurd to conclude that Mary learned anything respecting her right to set aside her gift, or anything from which her consent to let it stand can bo implied. The time, the place, the surroundings, the parties present, the parties absent that ought to have been present — all concur to show that her understanding of the business actually transacted, must have been quite meagre, and altogether less so, of business that was not attended to. Nor is the examination made Feb. 6, 1872, at Irasburgh of Charles’s account by Sarah, aided by her counsel, Mr. Hyde, any more satisfactory. No one of the accounts of Charles that came under review at that examination, contained any reference to Sarah’s gift. There is nothing to show that any mention was made of it by any of the parties present, nor that Mr. Hyde ever knew that such a gift had been made. Mr. Hyde’s testimony was not taken as it doubtless would have been if it would show anything favorable to the defendants. There is nothing on which to ground the claim that Sarah had the benefit of disinterested counsel. She sought counsel for another purpose; she did not ask advice respecting the gift, and her attorney had no occasion to volunteer any. It is not enough to show the presence of an adviser. It must appear that the subject-matter, claimed to be protected on the score of disinterested advice, was up for consideration, and that counsel was given respecting that.
The endorsement made upon the settlement, “ The above account having been examined and approved by our attorney Henry D. Hyde, we do hereby express ourselves as satisfied, and this account is settled as above,” and signed by Mr. and Mrs. Wade, attests the scope of Mr. Hyde’s examination, and limits the acquiescence of Sarah to that account alone.
The point to be made out is that Sarah and Mary Tmew their rights. Whatever knowledge Mr. Thompson or anybody else [68]*68might have, cannot be imputed to the girls. It is to be noted that this is the case of a gift; that the girls have received no advantage from their act. Accordingly the argument based upon the ground of lapse of time, loses much of its force. It is said in 1 Perry on Trusts, s. 467, that acquiescence will not be presumed from mere lapse of time, if the cestui que trust has done nothing to acknowledge the breach of trust, nor received a benefit from it. In Murray v. Palmer, supra, the bill was brought,to set aside a conveyance made by a woman of full age, but ignorant of her rights, after the conveyance had stood, and the interest on the purchase money had been paid to her, for twelve years. The court held that she was not estopped by this fact. Many cases can be cited where a much longer delay has been excused ; and many to show that much less time has been sufficient to raise the bar. But the cases all show that lapse of time, standing alone, is an unsatisfactory defence to the establishment of a clear right. But there is another answer to this branch of the defence. The masters say: “From Charles’s knowledge of the property, and the relations between him and his sisters, the masters are persuaded that he advised with and aided them more or less about their property so long as Mary lived, and Mrs. Wade so long as she lived.”
The relations between Charles and his sisters were always of the most affectionate character. Mary gave expression and emphasis to this fact when she said as.Mrs. Powell testifies, “ that if he (Charles) should die, she should not wish to live.” The whole tenor of the report indicates that at all times after the marriage of Mary and Sarah, as well as before, Charles held their unlimited confidence and affection. His technical discharge as their legal guardian, did not disturb the dominion he held over them, springing from their confidential and kinship relations. “ Acquiescence goes for nothing so long as a man continues in the same situation in which he was at the date of the transaction.” Kerr on Fraud' and Mistake, 801.
The silence of Sarah and Mary since their marriage — the absence of all evidence that they or Charles ever made any allusion to the gifts, and the continued confidence that the girls reposed in [69]*69Charles, that gave him, to some extent the continued management of their property, and at all times turned them to him, as their adviser; are facts that raise the presumption, in the absence of evidence to the contrary, that whatever acquiescence existed in the case is traceable to the same influence that vitiated the gifts when originally made. Under such circumstances their claim to relief would never outlaw nor grow stale. On the contrary their cause of action would be new every morning and fresh every evening.
It is said that the orators have an adequate remedy at law, and that chancery, therefore, has no jurisdiction of the suit. The court acquired a rightful jurisdiction to enjoin the distribution of the guardian’s estate, and the removal of the assets beyond the jurisdiction of our courts. This, by the settled practice of the court, would be a sufficient ground upon which to retain the suit and accord proper relief. It may be that some remedy would be open to these orators at law; but it is not apparent that any such remedy would be adequate to meet the exigencies of the case. But the jurisdiction of equity, over the trust relations subsisting between guardians and wards, and other persons standing in fiduciary relations ; to give relief against breaches of trust, is one of the most ancient, best settled and most salutary instances of the-exercise of chancery power, known to the system of equity jurisprudence. The defendants further contend that the bill is multifarious, in that the claims of the. orators represent distinct interests against a common defendant.
. The technical learning displayed in some of the early cases respecting the subject of multifariousness in bills in equity, is not regarded with much favor in modern times. In ancient times the pleadings in equity conformed very nearly to the common-law system; and dilatory matters clogged the progress of causes to the great annoyance of the court as well as suitors. But from time to time, the courts, ever anxious to reach the very merits of controversies, have broken away from the restraints of technicality, until eventually all the proper subject-matters of allegation on the part of a complainant, which under the old system would find their proper place in the bill, replication, surrejoinder or surre[70]*70butter were incorporated into the bill, or some amendment or supplement thereof; and all defences, that formerly appeared in any of the successive pleadings open to a defendant, were condensed into the answer. This simplification of the system of equity pleadings necessarily cleared away many of the technical and dilatory impediments that barred the approach to a consideration of causes upon their merits. A demurrer, however, is available now as formerly; but courts confine it to its proper scope, and require that it be interposed in limine. Its proper scope is to protect the defendant from making answer to the bill. If, therefore, the defendant submits to answer the bill, fully upon its merits, he is taken to have waived his technical protection. Clark v. Phelps, 6 Johns. Ch. 214.
There is no well-settled definition of multifariousness laid down in the books. Lord Cottenham, in Campbell v Mackay, 1 Mylne & Craig, 603, has discussed the subject with great learning and perspicuity. He says: “ The cases upon the subject are extremely various ; and the court in deciding them seems to have considered what was convenient in particular circumstances rather than to have attempted to lay down any absolute rule.”
In Adams’ Equity, 6 Am. Ed. 616, it is said that the rule forbidding the joinder of different matters in the same suit is a rule of convenience only, and is not binding, and may be dispensed with if the claims be so far connected that a single suit is more convenient.
The Master of the Rolls in Coates v. Legard, L. R. 19 Equity, 59, says: “ The objection of multifariousness is a question of discretion to be determined upon considerations of convenience with regard to the circumstances of each particular case.” The same doctrine is laid down in Carroll v. Roosevelt, 4 Edw. Ch. 211, and in Story Eq. Plead, s. 539.
The question in all cases where the objection is interposed, is whether the court can accord full and substantial relief to ail parties in interest without embarrassing the chances for defense. But the objection of multifariousness must be taken by demurrer, and insisted upon before final hearing. Lord Redesdale, the highest authority we have upon the subject of equity pleadings, [71]*71says in Whaley v. Dawson, 2 Sch. & Lefr. 371, that the objection must be taken by demurrer, and that it is too late to complain after the cause has proceeded to a hearing. Sir J. Wigram, Y. C. in Benson v. Hadfield, 4 Hare, 39, says that, except in special cases, this objection will not be allowed to prevail at the hearing.
Judge Story, speaking for the Supreme Court says, in Oliver v. Piatt, 3 How. 412: “ And at so late a period as the hearing, so reluctant is the court to countenance the objection, that, if it can get on in the cause to a final decree without serious embarrassment, it will do so, disregarding the fault or error when it has been acquiesced in by the parties up to that time. A fortiori, an appellate court would scarcely entertain the objection, if it was not forced upon it by a moral necessity.” To the same effect, Wellborn v. Tiller, 10 Ala. 305.
The reason given in the cases why the objection should be taken in limine, is the saving of the expense of a trial on the merits. If, therefore, the defendant answer the bill fully on its merits and incorporates into his answer a demurrer for informality in the pleadings, but does not bring the case to a hearing upon the demurrer, he must be treated as having waived it. Some of the cases imply that a demurrer may be incorporated in the answer ; but it is manifest that this is inconsistent pleading. It is in effect answering the bill, and at the same time claiming to be protected from answering. Mitford, Tyler’s Ed. 203, says a demurrer and answer may be joined, provided each relates to a separate and distinct part of the bill. Chancellor Kent says, in Clark v. Phelps, 6 Johns. Chan. 214: “ It is a settled rule in pleading that a defendant cannot plead or answer and demur to the same matter — the former will overrule the latter. It is inconsistent for a defendant to say, he ought not answer to a bill, and yet to answer it fully. Lord Chancellor King, in Jones v. Earl of Strafford, 3 P. Wms. 81, says: “ As answering to the same thing overrules a plea, so a fortiori pleading or answering to the same thing overrules a demurrer.”
But waiving this point, if the demurrer is allowed to slumber until all the expense of a trial is incurred, it is waived. In Hendricksons. Wallace, N. J. 9 Reporter, 411, the vice chancellor says of-this objection: “As a general rule, a defendant must [72]*72avail himself of it by demurrer, or lose it forever. If he attempts to answer the complainant’s case by answering on the merits, the objection will be considered waived, so far as he is concerned, and the court will proceed to make a decree regardless of it, if it can do justice to all parties.”
1 In 1 Dan. Chan. 352, it is said that the “ objection will be considered to be waived by a defendant who answers the bill.” See also, Underhill v. Von Cortlandt, 2 Johns. Chan. 369. Nowit is obvious that the defendant can stand no better by incorporating a demurrer into his answer than he could if he first demurred and then answered. He waives his technical defence in the one case as in the other. In Cousens v. Rosse, L. R. 12 Eq. Cas. 366, a demurrer to the bill on the ground of multifariousness was incorporated into the answer, the answer being full respecting the merits. The objection was first urged to the court on final hearing. Lord Romilly, M. R. said : “ The suit constituted in this manner, is obviously multifarious, and like most suits so constituted, is in a most inconvenient and irregular frame; but as objection has not been taken to it by way of demurrer, it is too late to do so now.” This case seems to be on all fours with the case at bar.
If a demurrer had been interposed to the bill in this cause at the outset for want of technical formality, it would have been well taken. The gifts were several, and entirely independent of each other. If the suit had abated, two suits would have followed incurring the expense. The defense has in no way been hampered in the progress of the cause by reason of the misjoinder, and to overturn the suit at this stage is simply to delay judgment, not to avert it. No reason is apparent — none is urged — why a decree cannot be made according full relief to the parties in interest as effectually as it could if separate suits had been instituted.
We are justified, therefore, in holding, upon the doctrine of the cases, as well as the reason of the thing, that the cause shall not be arrested by a lurking fatality after the defendants have tried their chances on its merits.
The pro forma decree is reversed and cause remanded, with directions to enter a decree for the orators as per mandate on file.