160 N.Y.S. 624 | N.Y. Sup. Ct. | 1916
Mutual wills by an agreement of the defendant Joseph 0. Phillip and Nellie M. Phillip, his wife, with the plaintiff Harry G. Phillip have been shown. The two former executed identical wills devising a life use of the real estate in question in this action to each other with remainder over to the plaintiff upon the death of the survivor. These wills were executed pursuant to an agreement made between them to preserve the farm for the son in consideration of his remaining upon the farm after he became twenty-one years of age. He became twenty-one October 20, 1905, and the wills were executed October 16, 1909. The son remained upon the farm doing such work as was necessary until he was forced to leave his home through the efforts of the defendant Maggie W. Brown. The agreement to make mutual wills for the benefit of the plaintiff is shown by the testimony of the scrivener who drew the wills and by conversations between the plaintiff and his mother and father. The mother’s will was in the possession of the plaintiff and he had often seen the father’s will which was kept in the secretary in the house and it was understood among them that the wills were made so that the farm should go to the plaintiff upon the death of the father
This being the character of the transactions between the father, mother and son, the father had no authority to change his will after his wife’s death for the purpose of defeating the agreement and the conveyance and bond and mortgage given to defendant Maggie W. Brown are void for this reason. They were executed by him, however, not only in violation of the previous agreement but through the fraud and undue influence of the defendant Maggie W. Brown. In May, 1915, the defendant Joseph W. Phillip suffered a stroke of paralysis and about that time employed the defendant Maggie W.' Brown as a housekeeper and while in enfeebled health by fraud and undue influence she caused him to execute and deliver a bill of sale October 11, 1915, of one-half interest in his personal property excepting money in the bank. She then married him and« on December 13, 1915, he executed and delivered to her a bill of sale of the remaining one-half interest in said personal property. These transfers were followed by a bond and mortgage for $1,000 on. the farm
These facts amply support the decree asked for in this action. Edson v. Parsons, 155 N. Y. 555; Fisher v. Bishop, 108 id. 25; Ten Eyck v. Whitbeck, 156 id. 341. It was not necessary for the plaintiff to allege the details of the facts constituting undue influence. This influence is not always revealed in words and it is
The plantiff is entitled to a decree establishing an agreement for mutual wills of the father and mother for his benefit and setting aside and canceling the deed and bond and mortgage given by his father to the defendant Maggie W. Phillip,
Judgment accordingly.