73 N.Y.S. 643 | N.Y. App. Div. | 1901
The action is brought to compel the specific performance of a contract by which the testator, Joseph Thorne, agreed to give the plaintiff all his property; the contract having been ■entered into on the occasion of the adoption of the plaintiff by him and his wife during the plaintiff’s infancy. The defendants are the representatives of the estate, legatees and devisees, and grantees to ■whom the deceased transferred portions of his property during life, unduly influenced to do so, as the plaintiff alleges. On appeal from the judgment in favor of the defendants dismissing the complaint upon the merits at the first trial, the judgment was reversed, this ■court holding that the action could be maintained. See Brantingham v. Huff, 43 App. Div. 414, 60 N. Y. Supp. 157. The principle has twice since been affirmed by the court of appeals, viz. in Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, and in Healy v. Healy, 166 N. Y. 624, 60 N. E. 1112, affirming 55 App. Div. 315, 66 N. Y. Supp. 927. On the second trial of this case it was decided at the special term that the plaintiff was entitled to the relief demanded in the complaint as against the defendant Eunice Ellinor Huff, but that the remaining individual defendants were entitled to judgment dismissing the complaint upon the merits. Both sides appealed from the interlocutory judgment entered upon that decision, but the judgment was affirmed. See Brantingham v. Huff, 60 App. Div. 632, 70 N. Y. Supp. 1135. The present appeal is taken by the defendant Eunice Ellenor Huff ■from the final judgment entered upon the coming in of the report of a referee appointed for the purpose, among other things, of taking
“I handed this money over to her, and said: ‘This is what you have wrote me for. I have it. I couldn’t invest it in anything that would be satis-, factory. That’s what you want of me.’ She said to me then: T am glad*647 you got here as soon as you have, because I wanted that; because I have a place to place a payment on a house at Staten Island.’ ”
The other transactions referred to were also cash transactions, loans and payment by currency, never by check, and are of the character which precludes an appellate tribunal from reversing a judgment merely because they unsuccessfully challenged the credulity of the trial court. But, aside from considerations influenced by the belief that the appellant had nothing but what she received from the deceased, the legitimate evidence seems sufficient in every instance to support the findings. In reaching this conclusion I assume the findings and interlocutory judgment as affirmed by this court and the evidence then given to be entitled to full faith and credence. Tor example, the learned counsel for the appellant insists that, while it was proper to charge her with 500 shares of the capital stock of the American Press Association, because she is to that extent precluded on this appeal by the finding of the interlocutory decree, it was error to charge her with over 1,000 additional shares merely because they had been at some time received by her. But there is not the slightest question that they all came from the deceased. The appellant was required to file an account with the referee, and she did so. In this account she states that she had 500 shares of this stock in November, 1892, represented by certificate No. 3, which she subsequently surrendered, and received, on reorganization, certificate No. 193, for double the shares, viz. i,coo. This, she says, was her property, and never Mr. Thorne’s. The stock ledger of the association, however, and other evidence in the case, shows that all this stock, amounting to 1,510 shares, was and remained in the name of Mr. Thorne until May 8, 1896, when the shares were surrendered by him, and certificates for a like number of shares were issued to the ■ appellant, who then for the first time became a shareholder on the books of the company. Moreover, the record on the original trial, which resulted in the interlocutory judgment, and -which is available on this appeal, shows that certificate No. 3 for the 500 shares was issued to Mr. Thorne on October 30, 1888,—four years before he became acquainted with the appellant; that it was transferred to her by his indorsement; and that the 1,510 shares issued to her on May 8, 1896, was a reissue of the precise stock which he surrendered and had canceled on 'that day. It would be profitless, as well as wearisome, to analyze in detail the countless objections and exceptions to the referee’s rulings and findings presented by the appellant. In his original decision, after finding in support of the agreement by which, for an adequate consideration, Mr. Thorne engaged to devise and bequeath all his property to the plaintiff, the learned trial justice, Mr. Justice Wilmot M. Smith, found “that the defendant Eunice Ellinor Huff, between the years 1892 and 1897, with the knowledge of the aforesaid agreement, and with intent to defraud the plaintiff of all her interest therein, and of the benefit thereof, and by the use of undue influence fraudulently exerted, procured the said Joseph Thorne in his lifetime to transfer and deliver over to her without consideration all his personal-property, and also -to purchase and
The judgment should be affirmed.
Judgment affirmed, with costs. All concur.