42 N.Y.S. 987 | N.Y. App. Div. | 1896
This action was brought to set aside two deeds of real estate, one executed by Lee Folger Nutting to his grandmother, Mary Ann Folger, dated May 15,1890, and one executed by said Mary Ann Folger to the defendants in this action, dated June 13,1890, both of which deeds were recorded in March, 1895. The said Lee Folger Nutting died March 24, 1891, intestate, never having been married, leaving his father, the plaintiff in this action, as his sole heir at law. Mrs. Folger, his grandmother, died in March, 1895. It appears from the testimony that in March, 1889, William B. Folger died in the city of Brooklyn seized and possessed of a considerable amount of real estate, of which that conveyed by the deeds in question was a part. He left surviving him his widow, Mary Ann Folger ; a daughter, Mary E. Pell, and a grandson, the said Lee Folger Nutting, who was a son of a deceased daughter. He left a last will and testament whereby he devised, with a few exceptions, all his property to his widow, to be used and the income thereof applied during her life, for the use and benefit of herself and her sister, Emily Grant. He devised a house and lot, known as 212 South Third street, in the city of Brooklyn, to his grandson, if living at the time of his death, and to his daughter he bequeathed a legacy of $500. The will then provided as follows: “ Knowing my wife will dispose of the little I have to leave when she has no further use for it, with justice and equity, to her daughter and grandchildren, I make no further disposal, believing they will each receive according to their merits.” Upon the proceeding instituted for the probate of said will, a guardian cod litem was appointed for the said grandson upon the petition of the plaintiff, on the ground that he was mentally incapable of protecting his rights, and objections were filed to the pro
The deeds which are the subject of this action were made for a nominal consideration of one dollar.
The plaintiff alleges in his complaint, as the ground for the relief he seeks: (1) That said Lee Folger Nutting at the time of the execution of the deed to Mrs. Folger was mentally incapable of understanding or comprehending the nature of the transaction; (2) that the deed was the product of undue influence and fraud. The trial court determined both of these questions in favor of the defendants, and from the judgment entered on that decision the plaintiff has appealed to this court.
Upon the question of the mental incapacity of the deceased, we deem-it sufficient to say that we think the finding of the Special Term is supported by the weight of testimony. It is impossible to give credit to the testimony of the defendants’ witnesses on this branch of the case and reach any other conclusion. While the deceased was of weak intellect, his acts and conversations and his letters which appear in the record before us indicate quite clearly that he understood the character and extent of his property and was possessed of sufficient mental power and capacity to deal with the same and to understand the character and effect of the deed he executed to his grandmother. It is necessary, therefore, that we consider only the relations existing between the deceased and his grandmother and determine whether, upon the law and the testimony, a case was made which would justify a court of equity in declaring void the conveyance to Mrs. Folger.
Lee Folger Nutting was born in November, 1867. From the age of seven years until his death he was an epileptic. He was con
Two questions arise upon this testimony : First,, was the relation between the deceased and his grandmother of such a character as to impose the burden of proof upon the defendants of showing that the transaction was just and fair and that no undue advantage was taken by Mrs. Folger of her grandson’s weak physical and mental condition; second, if their relations were of such a character, was that burden successfully met and the presumption that the deed was the product of fraud overcome by the testimony ? The rule of law applicable to a case of this character, where a fiduciary relation is shown to exist, is well settled. It is stated in Pomeroy’s Equity Jurisprudence (§ 951) as follows: “Where an antecedent fiduciary relation exists, a court of equity will presume confidence placed and influence exerted ; where there is no such fiduciary reliction, the confidence and influence must be proved by satisfactory extrinsic evidence; the rules of equity and the remedies which it bestows are exactly the same in each of these two cases.” In Cowee v. Cornell (75 N. Y. 91) it was said by Judge Hand : “ 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
In Fisher v. Bishop (108 N. Y. 28) the court said: “ The rule is not limited to cases of attorney and client, guardian and ward, trustee and cestui que tncst, or other similar relations, but it holds good wherever fiduciary relations exist, and there has been a confidence reposed which invests the person trusted with an advantage in treating with the person so confiding.” And in Cowee v. Cornell (supra) it is further said: “ While the doctrine is without doubt to be extended to many other relations of trust, confidence or inequality, the trust and confidence, or the superiority on one side and weakness on the other, must be proved in each of these cases; the law does not presume them from the fact, for instance, that one party is a. grandfather and old and the other a grandson and young, or that one. is an employer and the other an employee. The question as to parties so situated is a question of fact dependent upon the circumstances in each case. There is no presumption of inequality either way from these relations merely.”
It is very plain that the deceased had no occasion to ask or seek advice as to his property. He was not in the possession or enjoyment, of it, and he had no occasion to be advised about its management or disposition, and his grandmother had no duty to perform towards, him in that respect other than such as grew out of their blood relationship. But I do not deem it material in this case to determine-whether the relation between the. deceased and his grandmother is. to be deemed as fiduciary or confidential or otherwise. The plaintiff offered no testimony upon the question of undue influence. All his evidence was directed to the mental incapacity of his son. All the knowledge we have of the transaction in question or the-conversations that led up to it, or the inducement or motive that.
Upon the first view of a case of this character it shocks one’s sense of justice that a youth of weak and feeble intellect should, for no consideration whatever, absolutely strip himself of every dollar of property that he possesses; and, where such a transfer is made to a relative of strong, vigorous mental and physical condition, it is difficult to resist the conclusion that it must have been the result of over-persuasion and the influence of a strong mind upon a weak one. And were the validity of such a conveyance attacked by the grantor in his lifetime, I think the result undoubtedly would be that it would be declared void and set aside. On the other hand, had the deceased made precisely the same disposition of his estate by will which he made by the deed or deeds in question, that is, had he given all of his property either to his grandmother or to Iiis cousins, I think no one would, in the absence of testimony of actual fraudulent representations or over-persuasion, have questioned the entire propriety and validity of such an instrument.
In considering the case, therefore, the natural inquiry is as to the state of mind of the grantor in reference to the disposition of his property, and to his probable term of life. Upon this inquiry the defendants’ testimony is quite satisfactory, provided it is worthy of belief. It comes from four witnesses: Mrs. Grant, his grandmother’s sister, with whom he lived a greater part of his life; his aunt, Mrs. Pell, the mother of the defendants, and from two other witnesses, Myra L. Bates and Catherine Cook. None of these witnesses have any direct interest in the result of this litigation. But Mrs. Pell may be assumed to desire the success of her sons who are the defendants, and Mrs. Grant may be assumed to be interested in sustaining the integrity of her sister’s conduct. The other witnesses do not appear to have any interest of any kind in the result of the action, but both did admit upon the trial that they desired to see the
I am not unmindful of the fact that by keeping the deed from the record and suppressing all information of the fact of its execution the deceased may have been deprived of advice which might have induced him to make other disposition of his property. But, assuming, as I do, what I think the testimony fairly establishes, viz., that the deceased desired his property to go ultimately to his cousins, and that he believed his own death was to occur at an early date and very probably before the decease of his grandmother, I do not regard it as indicative of any fraud or undue influence that a method of transfer was advised by the grandmother or adopted by him, the effect and tendency of which was to avoid a contest during his lifetime and that of his grandmother in reference to the control and disposition of his property. It was natural that he should have intrusted the execution of his wishes in reference to the disposition of his property to his grandmother; and as she had the sole right to the possession and enjoyment of the estate during her life, there was no necessity that the deed should have been put on record until after her death.
It appears quite clearly that she was dissatisfied with the settlement of her husband’s estate, especially with that part of it which deprived her of the management of the property. It may be that she also thought that she had, under her husband’s will, a power of disposition over the estate, a power which, by the settlement, she had given up. The question of the construction of Mr. Eolger’s will in reference to this power, is one that is not entirely free from donbt. If such was the case, if the will did give to her the power of the final disposition of the estate, there was nothing wrong or suspicious in the fact that the deceased conveyed the property to her rather than directly to his cousins. The explanation of the form of the transaction is thus found in the terms of Mr. Eolger’s will and in the final settlement of the estate and the dissatisfaction of the grandmother and the deceased which grew out of that fact.
In my judgment the vital question in this case is whether the transfer of the property was in accord with the wishes of the deceased. The manner in which that disposition was made is not of great consequence if it was his free and voluntary act. There is
The judgment should be affirmed, with costs.
All concurred, except Bartlett, J., not sitting.
Judgment affirmed, with costs.