207 A.D. 521 | N.Y. App. Div. | 1924
Lead Opinion
The action is brought to have vacated a certain paper writing in form transferring to the defendants all the interest of Perry Willett in the estate of Arthur Willett in consideration of one dollar and an agreement that the defendants would support, care for and bury Perry Willett, the original plaintiff. Perry Willett died before the trial and this plaintiff was substituted. Perry Willett was one of two uncles who survived and were the only next of kin of Arthur Willett who died intestate.
The real parties in interest are Perry’s great grandnephew William Perry Bigelow, named after him, and the defendants, two of several nephews and nieces. Perry Willett made a will in 1905, in which he gave his property to this great grandnephew, who lives in Kansas. In 1919 he made another will, making the same disposition of his property, but naming the First National Bank of Coffeyville as executor in place of the person who had been named and giving a power of sale to the executor. This great grandnephew and his parents had in earlier years lived with Perry Willett and he apparently was very fond of the young man. Perry 'Willett’s one brother who had survived Arthur died within about one month after Arthur died and Perry’s nearest heirs at law and next of kin at the time of his death were nephews and nieces of different degrees. The defendants are brother and sister. During the years when the Bigelows came into Perry’s life, that is during the forty years he lived in Kansas, he was having no communication with and apparently knew nothing of these other relatives, and they were, until shortly before his death, entirely indifferent to him.
The testimony of Perry Willett was taken by deposition. As evidence of facts recited this testimony and certain declarations
Some forty-two or forty-three years before his death Perry Willett had purchased a mortgage upon lands in Kansas, knowing nothing more about those lands than the description in the mortgage and probably the statements of the man who sold it to him. Because he had weak lungs and dreaded the cold winters in the east, taking the mortgage procured in such a simple and innocent manner, he went to Kansas, sought out and identified the land, procured a deed and ever since lived there. He was never married. At the time of his death in 1920 he was ninety-three or ninety-four years of age. He had but little education. He had a considerable recollection of the events of his earlier life, but a poor memory of passing events. He was frail in body and health. He had lived in Kansas the forty years next prior to 1920. He had gained friends in his neighborhood and in 1919, under the advice of these friends, he had given to the First National Bank of Coffeyville (the executor of his will) a power of attorney to look after his business affairs. His attorney in fact procured tenants on his farm, who were to support and look after him. The cashier of this bank did the business and says that Perry was well looked after and comfortable. The Bigelows had moved away to a place more than 100 miles from his home. Strangers had not given much attention to his person. Perry at that time knew little about his money or business affairs. He stated that he had been robbed of much personal property, though there is no proof that his statement was founded on fact.
It was at first supposed that the cousins of Arthur were his next of kin and heirs at law; but it was later comprehended that the uncles were the next of kin and inquiries for them were made. At length a letter came from California stating that Uncle Perry was living in Coffeyville, Kans., and that John Bigelow reported that Perry was “ childish and quite feeble.” On the afternoon of the day this letter was received, the defendant John Wright, his brother Sam and his attorney, Pratt, started for Kansas. Pratt says that Arthur Willett’s estate had some interest in a second story of a building in Oklahoma, and that these three men were incurring the expense of a trip west, John at least being a man of almost
We pass now to what knowledge or means of knowledge Perry had as to Arthur’s estate. Pratt and the two brothers say that, in Kansas and on the trip back, they told him that Arthur was dead; that the two uncles, Perry and his brother John of Chautauqua county, N. Y., survived him; that Arthur’s estate was in bad shape, much confused; that Arthur’s father and mother had died, and there had been no inventories or statement of the amounts of their estates, but these were in Arthur’s hands and mixed with his property; and that there was a claim against Arthur’s estate of $18,000, but that would be fought to “ the last ditch.” Later they told him that the inventory of Arthur’s estate was about $30,000. They never told him that Arthur’s estate in fact inventoried $40,000, and, if any deduction was to be made on account of other estates mingled with it, that deduction should come out of the $40,000, and not out of the $30,000; or that Arthur’s father had died intestate and whatever personal property he had went to Arthur; or that he, Perry, was the owner of one-half of the personal property of Arthur’s estate. The evidence very plainly discloses that if Uncle Perry had intelligence enough to comprehend such a transaction, sufficient facts were not furnished him so that he knew what he was doing or so that he could make any reasonable estimate
In "our view the evidence discloses a distinct deception as to a principal element in the transaction. There never was any fair and frank statement to Perry Willett of the amount of Arthur Willett’s estate, or of his expected share in it. Because he was told that Arthur Willett left surviving him two uncles, it cannot be presumed that he knew that he was entitled to one-half of Arthur’s personal estate, since the attorney for the defendants did not know this for some time after the administrators of Arthur’s estate were appointed. Neither the defendant John nor his brother Sam claim that they advised Uncle Perry what his rights were in the estate; and, from the testimony of the defendant Katherine, the inference is that she did not advise him until after the papers had been executed and then only indifferently. The defendants would have it inferred that they told Perry that the amount of the inventory of Arthur’s estate was $30,000, because there was some $8,000 or $10,000 of his mother’s estate mingled with his; but they did not tell this to Uncle Perry. When they told him of the $18,000 claim for damages, adding that they were going to fight it to the “ last ditch,” they very plainly gave the impression that it was a serious claim. Deducting from $30,000 the estate of Arthur’s mother and the $18,000 claim, there would not be much left in Arthur’s estate to pass to any next of kin. It was lis interest in Arthur’s estate that was transferred to these defendants by this paper writing; and consequently it was of the greatest importance in fair dealing and honesty and in order that there be no deception, that he should be told frankly and fairly what the circumstances of that estate were and what his interest therein was before he was asked to sign the paper. These circumstances certainly furnish more than the slightest proof that an advantage was taken of the old gentleman and that more than the “ least speck of imposition ” was practiced upon him. (See Cowee v. Cornell, infra.)
Fraud vitiates all contracts, and it is the general rule that the burden of establishing the fraud rests upon the parties alleging it as a ground for defeating a contract. But there is an exception to this rule as generally recognized, which is stated in Cowee v. Cornell (75 N. Y. 91, 99) as follows: “ Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge
We think under the circumstances of this case the defendants were required to make explanation and that “ without any decisive proof of fraud ” the duty rested upon them of satisfying the court that the making of the contract was the free and intelligent act of Perry Willett and that the contract was procured without overreaching and without deception on their part, and was such as a court of equity can approve. One cannot read this record without being strongly persuaded that Perry Willett, suddenly called upon to act without counsel or advice, did not deal on terms of equality with these defendants and their attorney. The defendants were represented by counsel. Evidently the defendants knew beforehand the contents of the paper; it is the fair inference that it was the result of a plan agreed upon between them and Pratt, perhaps Sam being their instrument. We repeat that, when Pratt stated to Perry what the paper was, he did not mention in any way the obligations which the defendants were called upon to assume under the proposed contract. He did not ask them if they were satisfied; it seemed at once to be thoroughly understood by every one except Perry. We must accept the conclusion that Pratt was acting solely for these defendants and not at all for Perry Willett. The facts and conditions above recited leave the firm impression that Perry was a dependent old man, who relied upon other people for “ maintenance and guidance and cleanliness,” as expressed by Forest Kenyon, a witness for the defendants, and that he, without personal choice, trusted, and took his views from, those relatives with whom he was at the time and acted as they suggested.
This paper was prepared at the sole instance of the grantees, the grantor never having had it submitted to his consideration. This circumstance renders it subject to suspicion and “ ‘ raises a presumption of fraud. * . * * For where an instrument is prepared by direction of the party who seeks advantage from it, and the other party has no person with whom he consults on the subject, * * * a great degree of jealousy attends the instrument.’ ” (Sears v. Shafer, supra, 415.)
There is another bit of evidence in the case. On the same day the contract was made Perry Willett acknowledged the execution of a waiver of the service of a citation upon him to attend the judicial settlement of the- accounts of the administrators of Arthur Willett’s estate; and therein it is recited, “ I do hereby consent and request that a decree may be entered herein settling the said account as verified by the said Samuel P. Wright and Howard M. Hall, or either of them, whenever the same shall be presented to the
We believe the cause of action above discussed is within the allegations of the complaint; but if there is evidence tending to establish a cause of action broader than that alleged such evidence was received without objection thereto.
In the complaint plaintiff “ offers to return to defendants all that he received under, or as a consideration for said assignment.”
The judgment should be reversed, with costs, and the case • returned to the trial court to determine what amount should be paid to defendants for moneys expended, services rendered or expenses incurred in behalf of Perry K. Willett under or as a consideration for the assignment.
We disapprove of findings 8, 12, 25, 28, 30, 31, 37, 44, 45, 46, 47, and find that, at the time of the execution of the assignment, Perry K. Willett was dependent upon and subject to the control of the defendants; that he did not deal on terms of equality with the defendants and their attorney; he placed confidence in them and signed the paper writing induced thereto by deception and concealment; that the paper when executed was not understood by him and its execution was not his free and voluntary act, the result of his deliberate judgment; that he did not ratify or confirm the assignment after its execution; that the assignment be set aside; and that the plaintiff recover from defendants any money or property received by them by virtue of such assignment.
All concur, except Cochrane, P. J., and Hinman, J., dissenting, each with a sepaiate opinion.
Dissenting Opinion
(dissenting):
The action was originally begun by Perry K. Willett. Alter his death the present plaintiff was substituted. The original plaintiff naturally would not and legally could not effectively allege in his complaint his own incompetency. He did not attempt to do so. The gravamen of the action is fraud and undue influence. (See Aldrich v. Bailey, 132 N. Y. 85.) While there is a general allegation of fraud the complaint specifies with considerable particularity that such fraud consisted in stating and representing to the plaintiff that the paper he signed related to the estate of Franklin Willett.
Dissenting Opinion
(dissenting):
I have not been persuaded by the prevailing opinion in this case. It overlooks elements in the case which are undoubtedly established by most credible testimony which as a starting point furnish the foundation for the giving of credence to the defendants’ theory of this whole transaction. Mr. Justice Van Kirk likewise brushes aside all of the testimony of Perry Willett, whereas it seems to me that testimony should be carefully considered because it clouds the whole of the plaintiff’s case and discredits it utterly. The majority of the court have reached a conclusion which is absolutely contradictory to the theory of Perry Willett when he brought the action. They have decided the case upon a theory foreign to that expressed in the complaint and to that upon which the plaintiff tried the case throughout. Because a recovery is now being allowed in violation of the rule of secundum allegata et probata, I fully concur in the opinion written by Cochrane, P. J. Moreover, I wish to express my dissent upon the facts.
Perry Willett’s testimony taken upon open commission tells a story which is not incoherent or inconsistent with itself but which is consistently false and in many material details as shown by the testimony of disinterested witnesses, like Dr. Ingraham, Thomas O’Brien, Forest Kenyon and others.
In view of this wholly incredible testimony on the part of Perry Willett and the disinterested testimony as to just what took place at the time of the transaction and as to the apparent satisfaction that he expressed during his two months’ stay there with the kind of home that he had obtained and was enjoying, it seems clear to me that Mr. Justice Van Kirk has placed the emphasis in the wrong place and that a reversal of this judgment would be doing a great injustice.
I am thoroughly convinced that Perry Willett understood just what he was doing; that he did just what he wanted to do at the time and that he had all the knowledge that he cared to possess when executing the agreement. He simply suffered a change of
There is absolutely no testimony to show that Perry was dependent, physically or mentally, upon those present at the time of the transaction, or that he was in any way subject to their control. He was not weakened in mind or body by disease or mental infirmity. This action was not brought upon any theory that Perry Willett was incompetent to manage his affairs. If so, a committee should have been appointed to bring the action for him. Moreover, in August of the previous year he had made a will and one of his own witnesses, Mr. Wettack, cashier of the bank at Coffeyville, said that at that time Perry had sufficient mental capacity to understand the nature and character of his act, "the amount of his property and the objects of his bounty. His act in making this assignment to John and Katherine Wright did not take the property away from the natural objects of his bounty. There was no more reason for his leaving this property to Bigelow than to John and Katherine Wright. He had known John from boyhood and had expressed great sympathy for him because of his blindness and he expressed the same feeling to
Moreover, we must not lose sight of the fact that this assignment of his interest in Arthur’s estate was not a gift, but as he expressed it to one of the witnesses, it was a “ trade.” There is no reason to believe that the arrangement was not what ought to have been for his own best interests, namely, to live with relatives who did and would care for him rather than to live with a tenant on his farm and save whatever interest he had in Arthur’s estate for the benefit of a relative who for many years had taken no care of him and who suddenly became personally interested and pretended to care for him and led him away from Cambridge by some deception so that he could be the more likely recipient of Perry’s bounty. Too little importance is given to all of this by Mr. Justice Van Kirk, who places his chief reliance upon a conclusion that Perry’s appreciation of what he was transferring was too indefinite. I believe that Perry knew all that he wanted to know; that apparently he was not interested in the amount of money due him from Arthur Willett’s estate. What he wanted at the time was a woman’s care and a comfortable home. Of what interest was money to him at the age of ninety-four, when he had plenty for
For all of these reasons, I feel compelled to dissent and to vote for an affirmance of the judgment.
Judgment reversed on the law and the facts, with costs, and the case returned to the trial court to determine what amount should be paid to defendants for moneys expended, services rendered or expenses incurred in behalf of Perry K. Willett under or as a consideration for the assignment. The court disapproves of findings of fact 8, 12, 25, 28, 30, 31, 37, 44, 45, 46, 47, and finds that at