183 A.D. 502 | N.Y. App. Div. | 1918
The learned trial judge held that the decedent Elizabeth had technical testamentary capacity at the time the transfers were made, but that she was of weak mind, queer, eccentric and advanced in years, and that her cousin Leonard, defendant’s testator, occupied a fiduciary relation towards her. ■ If Leonard were now living, the burden would rest upon him of showing that the transfers were freely made and that the transactions so far as his conduct was concerned were fair and honest, and the court held that the same burden was on defendant, his widow and executrix. The legal conclusion reached by the trial judge is well established. (Cowee v. Cornell, 75 N. Y. 91; Matter of Smith, 95 id. 522; Barnard v. Gantz, 140 id. 249.) But we think that the defendant executrix, with this burden placed upon her and with the added burden of the death of her husband who is charged by the plaintiff with defrauding his cousin Elizabeth, has shown by a preponderance of the evidence and conclusively that there was no fraud, undue influence or overreaching on the part of Leonard, but that the transactions were natural, honest and fair in every way. The deceased Elizabeth was a woman about sixty-seven years of age at the time of her death, and she lived on a small farm in the town of Greenburgh in Westchester county, which had belonged to her grandfather and later to her brother Stephen, who died in 1910. Stephen, as well as his sister Elizabeth, was single, and the- two lived there alone, doing the work about the farm with occasional outside help hired by them. The farm had not been well kept up, and the farm house was dilapidated. Elizabeth worked about the farm in her brother’s lifetime and after his death. She did men’s work, wore coarse clothes, heavy boots, and it is claimed that she was not a very good housekeeper. When Stephen died in 1910, he left a will by which the farm was devised to a cousin, Daniel Lefurgy, who lived in Mich
The judgment is reversed, with costs, and the complaint dismissed upon the merits, with costs. The 3d, 6th and 12th findings of fact and all of the conclusions of law are reversed and the court finds as matters of fact the matters set forth in the 8th, 9th, 10th, 11th and 12th proposed findings of fact, and all of the conclusions of law proposed by the defendant, appellant, and further that the transfers and changes made in the savings bank accounts were made by Elizabeth Lefurgy, deceased, of her own free will and without any undue influence, duress or fraud on the part of Leonard T. Lefurgy, deceased, or any other person, and that said Elizabeth was of sound mind and understood the nature of her transactions.
Jenks, P. J., Thomas, Putnam and Blackmar, JJ., concurred.
Judgment reversed, with costs, and complaint dismissed upon the merits, with costs. Order to be settled on notice before Mr. Justice Kelly.