The opinion
HOUSER, Commissioner
(dissenting).
I respectfully dissent from the proposed opinion for the reason that I do not think there is clear, cogent and convincing evidence justifying cancellation on the ground of mental incapacity, fiduciary and confidential relationship, or undue influence amounting to a substitution of Sylvester Bohnert’s will for that of plaintiff.
The opinion, which upholds the cancellation of this deed on the basis of a fiduciary relationship and undue influence, depends upon the following to show confidential relationship : that plaintiff rented the farm to Sylvester under an indefinite arrangement; acquiesced in his statement at the end of the crop year that he was unable to produce a crop of value; did not complain of not receiving any rent; relied upon Sylvester to select an attorney to handle the transaction, and that Sylvester drove plaintiff to Farmington several times for outpatient visits to the mental hospital there. The opinion concedes that plaintiff did not otherwise rely upon Sylvester in business matters. I do not think this is sufficient to establish a fiduciary or confidential relationship between the parties.
The opinion depends upon the following to show undue influence: the fact that her mental state was not normal and that she was undergoing treatments at a mental hospital in close proximity to the date of the execution of the deed; that the transaction finally agreed upon was not what plaintiff had originally suggested; that plaintiff was reluctant to accept the arrangement finally worked out, and that she was not fully informed regarding the consideration. I do not think that this is sufficient to establish undue influence or that the court can infer undue influence therefrom. The most that can be said is that it shows an opportunity to exert undue influence, but this is not suf-ficent to invalidate a deed — its actual existence must have been shown. Cruwell v. Vaughan, Mo.Sup., 353 S.W.2d 616 .
From the recital of facts in the opinion I would reverse the judgment on the Boh-nerts’ appeal.