25 N.Y.S. 179 | N.Y. Sup. Ct. | 1893
This action was brought to set aside certain transfers of property made by one Aurelia Bemis to Katharine B. Bemis, her daughter-in-law, and for an accounting. The plaintiff Katharine Bartow is a daughter of Aurelia Bemis, and the executrix of her last will and testament, which was executed in the year 1847, discovered in 1890, and shortly thereafter admitted to probate. Aurelia Bemis had two sons, named Asaph and Elijah St. John Bemis. Katharine B. Bemis was the wife of Asaph Bemis, and a sister of the defendants Jonathan and Franklin Sidway, who are her only heirs at law. Aurelia Bemis, the mother, Asaph Bemis, the son, and Katharine B. Bemis, his wife, died before the commencement of this action. Formerly Aurelia Bemis was the owner of a tract of land in the city of Buffalo, being a part of outer lot 93, commencing 173|- feet from the intersection of Michigan and Seneca streets, on the south side of Seneca street, and being 82£ feet in width on Seneca street, extending southerly to the Little Buffalo creek, a • distance of nearly 1,000 feet. She also, in 1852, purchased a house and lot on Franklin street, known as “No. 147.” At the time of the purchase the Franklin street property was incumbered by a mortgage executed by David Burt and Benjamin Fitch, July 15, 1841, for $6,200. This mortgage was assigned by Fitch to Seth Grosvenor, July 15, 1841, and by Grosvenor and Seth G. Babcock to Henry W. Burt, June 3, 1859, at which time there remained unpaid thereon the sum of $3,600. It was again assigned by Burt to Katharine Bar-tow, the plaintiff, July 21, 1859, reciting the balance unpaid as
It is claimed on the part of the plaintiff that Asaph Bemis was the agent and trusted son of Aurelia Bemis, and that as such agent he bid in the several parcels upon the sheriff’s sale in the name of his wife, who took title thereto under such bid, and that under the circumstances she must be deemed to hold the title of
“That in consideration of the conveyance of the real estate to said Katharine It. Bemis by deeds from the sheriff and the said Aurelia Bemis, * * * and in addition to money paid, it was agreed by said Katharine It. Bemis that she, said Katharine R. Bemis, would support and maintain for and during the period of their natural lives the said Aurelia Bemis and her said son Elijah St. John Bemis; that in pursuance of such agreement the said Katharine R. Bemis did from and after the making of said agreement properly support and maintain said Aux*elia Bemis until" the death of said Aurelia, and did properly support and maintain said Elijah St. John Bemis until the date of the death of said Katharine R. Bemis, which occurred on the 15th of March, 1890; that said Katharine R. Bemis before her decease provided for the support of said Elijah St. John Bemis during the period of his natural life by her said brothers and heirs, Jonathan and Franklin Sidway; that said Jonathan and Franklin Sidway, soon after the decease of said Katharine R. Bemis, and before the commencement of this action, executed and delivered proper instruments charging upon their property inherited by them from said Katharine R. Bemis the support and maintenance of said Elijah St. John Bemis for and during the period of his natural life, which instrument so executed was and is effectual for the purpose aforesaid, and the said Sid-ways have since the death of said Katharine R. Bemis supported and maintained said Elijah St. John Bemis according to the agreement between said Aurelia and Katharine R. Bemis; that the agreement between said Katharine R. Bemis and Aurelia Bemis for the support and maintenance of said Aurelia and Elijah St. John Bemis was a fair one, and the obligation incurred by said Katharine R. Bemis was a just and fair equivalent for any equity of redemption or other claim which Aurelia Bemis then had or might assert with reference to any of the property of which said Aurelia had been seised.”
As to this agreement it is claimed on behalf of the respondents that Asaph was not acting as agent for his mother. We are inclined to concur in this view, for in our examination of the case we fail to find any evidence tending to show that he acted as such agent. He undoubtedly acted for his mother as to many of thvtransactions appearing upon the record. She undoubtedly trusted him, and relied upon him to a large extent; but when it came to the making of the contract between his mother and his wife, in which, he and his wife agreed to support and maintain his mother during her life, and her son Elijah St. John during his life, there is no evidence that he acted, for her.. An individual who is shown to have acted as agent for another during a long series of years in business transactions may be presumed in certain instances to continue his agency as to transaction's with others, but such presumption will not continue as to transactions between the principal and the agent or his wife. The question, therefore, is as to whether there was such a contract The agreement does not appear to have been in writing. The only direct evidence we have of the agreement, is the admission by Aurelia Bemis, made in her lifetime to one Jane Fickey, who testified that on one occasion Elijah St. John Bemis was lamenting his position in life, and that his mother replied to him, saying: ‘TTou need not trouble. I have made provisions for you.” She further testified, that afterwards Mrs. Aurelia Bemis said to her that “she had.
Was the contract a fair and just one? As we have shown, Katharine received nothing out of the Franklin street property. It was reserved for the support of Mrs. Aurelia Bemis and her son during their lives, and it then goes to the plaintiff. It was used by them as a dwelling, and produced no income. Katharine had to support them and pay the taxes out of the Seneca street property. We are left in some doubt as to the value of this property in 1876. It appears that the Buffalo Savings Bank took a mortgage thereon for $6,500, and that it refused to take a mortgage thereon for any greater sum. Dr. Orson St. John offered $10,000 therefor, but it was not accepted. The plaintiff claims that it was worth $20,000. On behalf of the plaintiff it is claimed that Asaph and Katharine Bemis had been more than paid for any money that they had expended in behalf of Aurelia or Elijah, while on behalf of the defendants the accounts of Asaph were put in evidence, showing in detail the amount of payments made, which, after deducting the credits received upon the sale of the lots to Root and to the New York Central Railroad Company, with the rents collected, left a balance his due of $14,908.41. The trial court has found that the agreement was a just and fair one, and that the obligation incurred in the support of Aurelia and her son Elijah was a fair equivalent for any equity of redemption that existed; and this finding we think is supported by the evidence.
Was there deception or undue influence practiced upon Aurelia
We have examined the other exceptions taken, but find none that require a new trial. The judgment should be affirmed, with costs. All concur.
Code Civil Proc. § 531, provides that the party alleging an account in his pleading must deliver to the adverse party, within 10 days after a written demand therefor, a copy of the account, and “if he fails so to do, he is precluded from giving evidence of the account. ”