¶1 dissenting:
¶2 The principal contention of the appellant is that she made a prima facie case by introducing in evidence proof of the execution of the deed during the existence of an engagement to marry, and that no further proof was necessary until appellee overcame the presumption of undue influence thus raised. The majority opinion sustains her position, but it seems to me that appellant should have further shown that appellee was the dominant party to the transaction in order to complete her prima facie case. In Mahan v. Schroeder, 236 Ill. 392, notes and mortgages, properly endorsed and assigned by Maria Schroeder to her husband, Herman Schroeder, were in his possession at the time of her death. We said that the presumption was that he owned them, although it was insisted that he was trustee ex maleficio. Reliance was placed on the presumption arising from the existence of a fiduciary relation where the gift is from the dependent to the dominant party, and it was contended that the existence of the relation of husband and wife cast upon the husband, or those claiming through him, the burden to prove that the transaction was free of undue influence. We denied this contention and said that although confidential relations necessarily exist between husband and wife, it is a question of fact as to which is the dominant party. See, also, Scully v. Wilhelm, 368 Ill. 573. The authorities relied on by appellant are all inapplicable. They fall into two groups. In the first are cases like Suchy v. Hajicek, 364 Ill. 502, Hensan v. Cooksey, 237 id. 620, and Beach v. Wilton, 244 id. 413, where the evidence clearly established a fiduciary relationship by reason of the kinship of the parties, the disparity in their ages and physical condition, and the abuse of confidence by the dominant party. The question of what constitutes a prima facie case was neither presented nor passed upon. The second group of cases relied on by appellant are those involving ante-nuptial contracts, as in Geiger v. Merle, 360 Ill. 497, Debolt v. Blackburn, 328 id. 420, and Yockey v. Marion, 269 id. 342. They hold that one seeking to enforce an ante-nuptial contract entered into during an engagement to marry, must show that a fair disclosure of the property of the intended husband was made at the time it was entered into. In Geiger v. Merle, supra, we said, (p. 315,) that if the provision is so small as to be disproportionate to the extent and value of the intended husband’s estate, the presumption is raised of an intentional concealment of the extent of his estate, and the burden is on those asserting the validity of the contract to prove that it was fairly entered into. So, even in this class of cases, the presumption of fraud is not raised by mere proof of the execution of the ante-nuptial contract, but some evidence is required showing concealment or an inadequate provision for the wife, before a presumption of fraud or undue influence arises. Transactions such as the one here involved should be closely scrutinized in equity, because of the opportunities for fraud and overreaching, but if the only showing made is that a man received a conveyance of property from his fiance, the law does not raise a presumption of fraud from that alone. She could lawfully give him her property, and her heirs could not be heard to complain, if the gift were voluntarily and understanding^ made. See, also, Brenneman v. Dillon, 296 Ill. 140.