138 N.Y.S. 1039 | N.Y. App. Div. | 1912
The plaintiffs are the sons and daughter of the defendant, and they bring this action to have adjudged as void a certain deed made by one Johanna Donlon, their mother, to Stephen A. Donlon. This deed bears date of March 8, 1910, and Johanna Donlon died on the tenth day of March in the same year, being survived by the defendant and the plaintiffs in this action, the latter being her only heirs at law and next of kin. Johanna Donlon was, at the time of her death, about sixty years of age, and had been married to the defendant for about forty years, the latter being about seventy years of age. In other words, Johanna Donlon appears to have been married at the age of twenty to a man ten years her senior, and to have become the mother of his children and to have lived with him up to the time of her death, and there is no suggestion in the evidence that this relation was not as harmonious and happy as that of the average couple who have traveled over life’s road together. The complaint alleges insanity on the part of Johanna Donlon; alleges, upon information and belief, that “ on or about March 8th, 1910, and during the time and while said Johanna Donlon was in the physical and mental condition aforesaid, and while she was of unsound mind and incapable of knowing what she was doing, and While she was incompetent by reason of her said mental condition, the defendant by undue influence, inducement, coercion, procured from said Johanna Donlon, a certain instrument in writing, without any consideration whatsoever, but for an express consideration of one dollar, which instrument purports to be a deed by said Johanna Donlon conveying all her real property to the said
After hearing the evidence the learned court at Special Term gave an opinion, in which it is said: “ In this case, I do not find that there was any fraud whatever practiced by the husband upon the wife. Neither do I find that there was any evidence of undue influence exercised by him. Neither do I go to the extent of finding that she was insane,” so that there is not a single finding in the case (for the formal findings are in harmony with this opinion) upon which a judgment could be rendered in harmony with the allegations of the complaint. “ But,” continues the learned court, “I do find that she was over sixty years of age, weak and infirm, unable to walk or speak, of very low physical vitality, and a very weak mentality, and under these circumstances the burden is upon the husband to show that the deed received by him, a day before her death, was made as a voluntary act of hers, and was clearly and distinctly understood by her, all of which I think he has failed to do, and therefore I shall have to grant the relief asked for and set aside the conveyance.”
We have examined with care the cases cited by the respondents in support of this judgment, but we are clearly of the opinion that none of them go to the extent of holding that there is any presumption of fraud arising as between a husband and wife, where the latter makes a gift of her property to the former
It is true, of course, that there is a well-established rule that the relation in which the parties to a transaction stand to each other is often a material circumstance and may of itself in some cases be sufficient to raise a presumption of the existence of undue influence, which is a species of fraud (Barnard v. Gantz, 140 N. Y. 249, 257), but the relation existing between husband and wife has never been held to operate as presumptive evidence of fraud in a transaction as between themselves.
In none of the adjudicated cases have the courts gone to the extent of holding that the relation of husband and wife, sanctioned by civil and ecclesiastical law, and jealously guarded by the public policy of the State, constituted a condition which raised a presumption of undue influence, even where one of the parties was old and feeble both in mind, and body,, and in the present case the person presumed to have been guilty of a fraud is older by ten years than his alleged victim, and there is not a fact or circumstance from which the inference can be drawn that he was anything, less than a dutiful husband and father, whose children are unwilling to await the orderly procession of life in order to enjoy the estate which their parents have undoubtedly brought together by their common efforts. We think this is not a case for the extension of the rule of presumptions, that the facts do not bring it within the exceptions to the general rule that fraud — which is criminal in its essence — must be proved, and that the judgment in all cases
The judgment appealed from should be reversed and a new trial granted, costs to abide the final, award of costs.
Jenks, P. J., Carr and Rich, JJ., concurred; Thomas, J., concurred in result.
Judgment reversed and new trial granted, costs to abide the final award of costs.