68 A. 985 | Conn. | 1908
The subordinate facts found by the court establish beyond question the fact that Ann Mooney conveyed to Frank J. Mooney the land in controversy, of her own free will and unaccompanied by any trust in favor of his brothers, whether this conclusion be treated as one of fact or of law. The plaintiffs' claim, therefore, that the court erred in ruling that the plaintiffs were not entitled to a conveyance by the defendants of an undivided two thirds of this land, with an accounting for the income thereof, is obviously not entitled to consideration.
Upon the trial the plaintiffs produced as witnesses the plaintiff John T. Mooney and others, and offered to prove by them declarations of Ann Mooney, claimed to have been made by her subsequent to the execution of her deed of December 13th, 1892, tending to show that her intention in executing the deed was to convey the land in question to Frank upon the trusts alleged in the complaint, and not absolutely. Such evidence was excluded by the court, and the plaintiffs assign this action as error.
The evidence was purely hearsay, and did not come within the operation of § 705 of the General Statutes, which provides that in actions by or against the representatives of deceased persons, the declarations of the deceased, relevant to the matter in issue, may be received as evidence.
The representatives of Ann Mooney were not parties to the action, and the estate of Ann Mooney was not concerned with the result. The sole subject of contention was an alleged equitable claim in behalf of the plaintiffs against the estate of Frank J. Mooney, adverse to the claims of his devise. *451
The plaintiffs further urged the admissibility of the evidence, on the grounds that the declarations, or some of them, were made by Mrs. Mooney as owner and possessor of the land and against her interest; that the declarations were those of one in possession of land, explanatory of the character of the possession and of the claim of ownership; that the act of conveying the land was one continuous act from December 13th, 1892, when the deed was executed, to a short time before Mrs. Mooney's death on September 23d 1895, when the deed was delivered, during all which time Mrs. Mooney was in possession of the land, and so the declarations were a part of the res gestoe.
The rule as to declarations against interest clearly had no application to this case, and the trial court held that it did not in fact appear that the deed was not delivered on December 13th, 1892, and did not appear that Mrs. Mooney was in possession of the land after that date; and excluded the declarations.
There was no error in this. We cannot say, from an inspection of the extracts from the rulings and evidence before us, that the court was not justified in holding that at the time these declarations were offered the facts claimed as to possession and delivery of deed had not been shown. It did appear during the trial, and the court found, that the deed was executed and delivered on December 13th, 1892.
In the course of the trial the fact that a portion of the family expenses during Mrs. Mooney's life had been defrayed by Frank J. Mooney, became a relevant fact. The defendant Margaret E. Mooney, wife of Frank J. Mooney, being called as a witness for the defendants, testified to her husband's declaration of how much of the living expense of the family he had defrayed.
The court properly overruled the plaintiffs' objection to this testimony; it was plainly within the provisions of § 705. The witness was then asked: "What did he say, if anything, about the contributions of the other sons?" The plaintiffs objected to the question, because if any contributions *452 were made by the other sons they would naturally be made to the mother, and it must appear, before Frank's declarations could be admitted, that he had seen these contributions made. The court said that if the witness testifies that her husband told her as to the amounts contributed by the others, it would be taken as a matter of fact that he was talking within his knowledge, unless it appeared otherwise, and that it might be that the contributions were paid to him; and overruled the objection.
It does not appear what answer, if any, was made by the witness to this question. It is sufficient that it does not appear how the plaintiffs could have been harmed by this ruling. Evidence that the other sons had contributed to the living expenses was favorable rather than harmful to the plaintiffs.
Upon the trial the plaintiffs claimed that "upon the uncontradicted testimony before the court establishing fiduciary relations between Frank J. Mooney and Ann Mooney, the burden of proof was on the defendants to establish the fairness of the transaction, and that it did not proceed from undue influence."
The court properly overruled this claim. In so far as it may be regarded as one of fact, the court has found that the relations between them were those of mother and son; that he was the confidential adviser of his mother, who was dependent largely upon him for support; that he was the manager of her property, which was largely the result of his gifts, and one in whom she reposed special trust and confidence. The proof of such relations raised no legal presumption of undue influence and unfairness in the transaction between the mother and son. It is sufficient to refer to the discussion of this subject in Lockwood v.Lockwood, post, 513, 69 A. 8.
But it is immaterial in this case, whether the court ruled correctly upon the plaintiffs' claim of burden of proof or not. It plainly appears from the whole record that the defendants did undertake to establish affirmatively the fairness of the transaction between Frank and his mother, and *453 that upon the whole evidence the court was fully satisfied of the fairness of the transaction, and that Ann Mooney executed and delivered the deed to Frank of her own free will, and expressed therein her own wishes uninfluenced by any fraud.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.
