34 A.D. 144 | N.Y. App. Div. | 1898
The learned judge at Special Term held in substance that the relation between the defendant and his mother in reference to the estate of her deceased husband was an agency involving an element of trust, the bare proof of which raised a presumption adverse to the releases, making it incumbent upon the son to show affirmatively, in the language of Cowee v. Cornell (75 N. Y. 91), “ that no deception was practiced, no undue influence used, and that all was fair.” He was of the opinion, however, that the defendant had sustained the burden of overcoming this presumption by the . evidence which he offered of his mother’s long and happy home life with him and his family during her ten years of widowhood, and her strong and constantly growing affection for the defendant as compared with her other children, which the learned judge deemed •only natural under the circumstances disclosed by the proof. Counsel for the plaintiffs concedes that great affection is always a sufficient explanation of testamentary dispositions. If its existence is satisfactorily proved — and we cannot say that it- was not so proved in this case — we are unable to see why it may not also suffice to
In this view there is no ground for disturbing the judgment so far as the plaintiffs have appealed from it. We think that the defendant is right, however, on his appeal in the contention that the releases should have been adjudged effective to discharge him from liability for interest on the $3,000 mortgage up to the date of the latest release.. The award of costs against the defendant at this time must also be stricken out, as the judgment is only interlocutory, and the case is not that.provided for in section 3232 of the Code of Civil Procedure.
All concurred.
Interlocutory judgment modified so as to exclude from the accounting thereby directed the item of interest on the $3,000 mortgage except for a period subsequent to January 13, 1896 ; also further modified by striking therefrom the award of costs to the • plaintiffs; and as thus modified, interlocutory judgment affirmed, without costs of this appeal to either party.
