Whelan v. Whelan

3 Cow. 537 | N.Y. Sup. Ct. | 1824

Woodworth, J.

The bill seeks to be relieved against two. conveyances executed by the appellant—the one for a farm in Johnstown, the other for 100 acres of land in the county of St. Lawrence,

Relief is claimed, on the ground of undue influence and fraud. The respondents object, that the former is not alleged in the bill, and consequently not in issue.

Ground on which relief is sought.

What the bill charges.

The hill charges the respondents with fraudulent artifices, management, and undue influence, in obtaining the deeds. It is, however, sufficient, if from an examination of the whole bill, the facts stated shew that the respondents necessarily had undue influence or control oyer the appellant, so that the parties did not treat on equal terms. The rule that requires every thing essential to the appellant’s right to be alleged, is then satisfied. His equity will then appear, and the Court may administer the relief to which he is entitled. Whether undue influence has been used, is an inference from the facts alleged and proved, and does not require the averment of the pleader to put them in issue. It is enough if they authorize the Court to draw the conclusion, .

Undue influence is. in issue, if it appear, from the whole bill, to be charged,

ence^romfacts alleged and proved.

Leading feacase8 °f the

Causes for a-voicing a con-confidence; in'arÍceU-aCadvan"f tage from age StTSi tiaiity of apa-

. I will briefly state some of the leading features of this case. appellant is far advanced in years. He is probably not exempt from the infirmities incident to mind and body in the last stage of human life. In this second childhood, a surrender of business into other hands becomes indispensable. Something like a guardianship of the person and property is in most cases necessary. The appellant had reared a numerous family. For several years there appears to have been much family contention, arising from dissensions between his children, with respect to the. use and management of his estate. The appellant’s wife took part with some of the children. She and her husband lived unhappily, and separated. The bill alleges that the appellant had committed the management of his estate chiefly to his sons, John, Joseph and William ; that after his wife left her home, the farm was in the exclusive possession of the appellant and the respondents. It is in proof that the appellant was very credulous, and easily persuaded by those whom he believed his friends ; that he was easily led by Wi’lliam; that in the family strifes the appellant and the respondents were on o.ne side—-the wife and the other children in opposition ; that the appellant could be persuaded to do any act dictated to him, when apprehensive that his property was in danger. It cannot be doubted that he was placed in a situation highly favourable to the views of the respondents. They had full opportunity for operating on his hopes and fears. A contract obtained from one party, so much in the power of the other, cannot be sanctioned, if con-fiance has been abused, if there is inadequacy of price, or the inference is plain, that advantage has been taken of age ^nd imbecility, and the partiality of a parent has been artfully made use of to strip him of his property, and reduce him to a state of dependence and want.

it does not appear that Joseph was an active agent in procuring the deeds. The transaction was between the appellant and William. The first question is, whether fraud or undue influence was practised by the latter.

The farm is valued at $9000. The appellant’s debts were trifling. His wife boarded with Mrs. Shurtliff. The bill alleges that she charged, as William stated, $5 per week for his mother’s board; that the appellant was sued by her in a Justice’s Court; that William observed, if his mother was permitted to go on in that way she would involve the appellant in debt, and dissipate his whole estate ; and that unless the appellant would immediately do something to prevent it, the respondents would leave him. That he asked the respondents what could be done. William advised the appellant to convey to him and his brother the whole estate real and personal. That to prevent such consequences he consented to the proposition.

The respondent William, in his answer, admits, that in January, 1821, he returned from Albany with the appellant, and found that Mrs. Shurtliff had commenced an action by summons. That the appellant asked him what should be done ? That he then told the appellant, as he had often done before, that if the appellant had any thing to give him he wished to know it, otherwise he would abandon the farm ; that as the appellant and his zoife were acting, they would soon have little enough for themselves. That thereupon it was agreed that the appellant should execute a deed of the farm. The question here arises, what induced the appellant, at this time, to divest himself of all his property ? The answer is obvious—his fears that his estate would be swept away for debts contracted by his wife.

It is scarcely necessary to say that the supposition was groundless. His wife had been at board 13 weeks. The demand was afterwards settled for $25. A summons had issued to collect this small debt. This statement is enough to satisfy every mind that the appellant was bereft of ordinary understanding. If his ignorance and imbecility of mind were so great as to entertain such apprehensions, for such a cause, it is evident he would become an easy prey to any dp-. signing knave who happened to possess his confidence. How does William treat these suggestions ?• Every motive of duty towards a parent required him not to give a false coloring. He was bound not only to speak, but to speak truly. But such a course would not answer the purpose in view.

Appellant Was induced to convey by Tin-founded fear that his prop, erty would be swept away by his wife’s debts.

TT , ^ William, tho’ tosjeaktruly1'

Be had too much discernment not to perceive that this was Bvourable moment to profit by the appellant’s, fears. Instead of quieting the idle apprehensions of his father, he renews his request. “ If you have any thing to give, I wish to. know it, otherwise I will abandon the farm”—and adds, that as. the appellant and his wife were acting, they wou.ld soon have little enough for themselves. The impression such remarks were calculated to make cannot be mistaken. It was., i,n substance, saying, “ Your estate will be dissipated by the expense of supporting your wife, and the only way to avoid it is to give me your property.” The allegation was untru.e in point of fact. There was no ground for alarm. The conduct of William, on this occasion, was not only undutiful, but fraudulent. The appellant was thereby deceived, and became'the dupe of the artifice practiced on him. The proceedings gt Mr. Reynolds’ office are in exact accordance with the view I have taken. William admits that the appellant stated to. Reynolds he was apprehensive his wife would run him in debt; the merchants would, trust her ; that he understood, he should be charged $b per week for her board ; thgt he was determined to get rid of all his estate, so. that he could not be kept in gaol but a short time.

His conduct fraudulent ^

The question here.occurs, from whom did the appellant derive his. information? Reynolds testified, that the appellant stated he had been prosecuted for the maintenance, of his wife; that a recovery had been had against him; and he was fearful he should be harrassed with lawsuits, from timeto time, for his wife’sboard and maintenance. He believed the above were among the inducements to convey his estate, Glary testified, that the appellant declared he made the conveyance for the purpose of saving it from his wife’s creditors. • William stands by, and does not attempt to remove these erroneous impressions. Had the business been fairly explained, I doub.t not that Mr. Reynolds would have informed the appellant iliere was no cause for alarm. The next day, when the bond and mortgage and bill of sale were executed, M^Nanghton testifies, that the appellant declared it was a hard case for him to make an assignment of his property—it was done for the express purpose of preventing Martha, his wife, from spending his estate. Here also William is silent. He suffers his father to remain under the delusion. Hé perceives his Unwillingness to reduce himself from affluence to dependence ; and yet quietly takes possession of the papers, and permits the fraud to be carried into effect. A strong confirmation of the fraudulent intentions of William is derived from his declarations to Charles Whelan, in 1823. “He had got tlie old man into the situation he wanted—that he had worked to get the appellant into that situation for these ten years.”

There is another fact that marks the influence of William, ever the appellant, as well as his incapacity to protect himself. Mr. Reynolds says, after the appellant had conveyed his property to the respondents, he appeared not to be prepared or anxious to exact a stipulation from them for the support of himself and wife, until the propriety of this had been suggested to him. At length a bond and mortgage were prepared, with condition to give the appellant and his wife a comfortable support, in sickness and in health, and the sum of §50 annually, during life; but that the respondents should not be required to provide such support, except in their own dwelling-houses, which they or one of them should occupy. As the appellant seemed not to have thought of any consideration to be paid, nor anxious to require any, he was of course willing to accept any thing William would give. The spectre, of law suits, his wife’s debts, and imprisonment, had so haunted his imagination, that his own future support seems to have been lost sight of; or, if not, he reposed on the filial affection of his favourite sons. The consideration, then, was grossly inadequate, and not suited to the exigency of the case. It may well be considered as one item that gives the character of fraud to this transaction. There is no ground for upholding this deed on the principle that this was an advancement, or that it was founded on natural love and affection. All the declarations of the appellant of hia intentions respecting the respondents, must be considered as relating to his future bounty. They can have no effect in supporting the present deed.

whichPl<equh heve™1* r6'

One making tíontoPanotter" dealing on the make it good,

One bar-another cing confidence éhowTreaTné able use made dence?1 C°nfi"

One falsely snpposing his estate m danger conveys it causeS the\atter knowing tion toPP°be groundless and neglecting to correct the should6 * avoid the conveyance"

. The principles which govern a Court of Equity, abundantly prove that the appellant is entitled to relief. In Evans v. (6 Ves. 182) the Chancellor observed, it is. a very old head of Equity, that if a representation is made to anotber person, going to deal in a matter of interest, upon the faith of that representation, the former shall make that representation good, if he knows it to be false. So also in Gibson v. Jeyes, (6 Ves. 278) it is laid down as a general rule in Equity, that he who bargains in matter of ad-van*:aSe> w*th a person placing confidence in him,,is bound to show that a reasonable use has been made of that confidence 5 a rule applying to trustees, attorneys, or any one else. We cannot shut our eyes to the fact that William well knew, that the appellant’s large real estate was not in danger of being wasted, by the inconsiderable expense of paying his mother’s board in the country, and supplying her wants for a few years; she then being nearly seventy years of age, and in delicate health. The supposition would be puerile, and inconsistent with the intelligence and management discovered by William, in effecting his object. The áppellant, in great distress, makes inquiry what is to be done t r ’ ° . , . f , • He seems to be entirely ignorant, that his estate and person were n°t in danger. William had the power to make known to him his true situation, but he withholds the information, It would therefore be unconscionable to hold the appellant f-0 the bargain ; this concealment is alone a sufficient ground ° . for avoiding it. When transactions of this kind are between Parties standing in such relations to each other, they ought to be conducted with all imaginable fairness. In Bowles v. Stewart, (1 Sch. Lef. 209) it was held, that concealment of a material fact was sufficient to avoid a release obtained by (he person whose duty it was to make the disclosure. I fully subscribe to the reasoning of Sir Samuel Romilly in Huguenin v. Basely, as applicable to this part of the case j that “ if the Court sees that any arts or stratagems, or any undue means have been used; if it sees the least speck of imposition, at the bottom ; if there be the least scintilla of fraud, this Court will, and ought to interpose ; and by the exertion of such a jurisdiction, they are so far from infringing the right of alienation, which is the inseparable'incident of property, that they act upon the principle of securing the full, ample and uninfluenced enjoyment ofit.”

Consideration inadequate.

Conveyance cannot be upheld as an advancement,

From this examination, it seems to me, there is little difflculty in deciding that the respondent William procured the deed from the appellant to the respondents by fraud and imposition ; and that so far as he is concerned# it ought to be held utterly null and void.

William^pro* faiud, and it should ha set him.

The next question is whether the fraud of William in procuring the deed, renders it void as to Joseph, the other respondent. It is a general rule, that in ordinary cases of r ° . t l fraud, Equity undoes the whole transaction, and replaces the parties in their former situation. (Daubney v. Cockburn, 1 Mer. 644.)

Whether^ his a3t0 in ordinary cases of fraud, equity undoes {^ansaetim!°le

The case of Bennet v. Wade, (1 Dickens, 84) is very much in point. The facts were briefly these: Sir John Leigh was seized of a large real estate ; his mind was so weak, that he was easy to be imposed upon ; the defendant was a surgeon and apothecary, who attended him, took advantage of this weakness, and prevailed on him, then aged sixty, to marry Wade,s daughter, aged sixteen, and to execute a settlement in favor of his daughter. The daughter dying soon after, Wade obtained a will from Sir John in his favor, and also indentures of lease and release as he alleged in consideration of the will. After the testator’s death, Wade set up the deeds, under which the defendants claimed beneficially, and they entered on the estates. A part of the estate was conveyed to Wade in fee*; a bill was filed to set aside the deeds, and a cross bill to establish them. It was argued on the part of the plaintiffs, that whatever fraud or imposition had been practised on Sir John Leigh, by the defendant Wade, they were not privy to, or concerned in it; that it would be hard to involve the innocent with the guilty, and punish them, by setting aside the deeds in toto. But Ld. Hardwicke was of opinion, that the deeds were founded in fraud, and being sd¿ it vitiated the whole; that they were obtained from Sir John Leigh, by fraud, imposition and circumvention, by means of *he undue influence of the defendant Wade over his weakness; and that the same ought to be set aside. This case fully establishes the principle, that the respondent Joseph cannot be protected. So, also, in Davidson v. Russell, (2 Dickens, 761) the question was, whether a deed could be set aside in part for fraud, and the rest established. Ld. Thurlotu was decidedly of opinion it could not. He directed the contract to be set aside, and observed, there could be no hesitation though it appeared that innocent persons were interested un» der it. This cause was afterwards reheared and affirmed by Ld. Loughborough, in 1794.

Cases to this

In Huguenin v. Basely, (14 Ves. Jun. 289) the same doctrine is recognized. Ld Eldon observes, “ I should regret that any doubt could be entertained, whether it is not competent to a Court of Equity 'to take away from third persons the benefits which they have derived from the fraud, imposition or undue influence of others.The case of Bridgeman v. Green, (2 Ves. 627) was considered by his Lordship as an express authority that it is within the reach of the principle of this Court, to declare-that interests so gained by third persons cannot possibly be held by them. This last cause after-wards came before the Lords Commissioners, and Lord Chief Justice Wilmot expresses himself thus : “ There is no pretence that Green’s brother or his wife, was party to any imposition, or had any due or undue influence over the plaintiff-, but does it follow from thence, that they must beep the money ? No. Whoever receives it must take it tainted and infected with the undue influence and imposition of the person procuring the gift. His partitioning and canfoning it out amongst his'relations and friends, will not purify the gift, and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet if it comes through a polluted channel, the obligation of restitution will follow it.” (Wilm. 64. 14 Ves. 289.)

It is unnecessary to pursue this doctrine through all the cases, to be found in the books. It is believed that the rule is irmly established. If it were otherwise ; that a person could ©vade the principle, by giving interests to third persons, instead of reserving them to himself, it would be almost impossible ever to reach a case of fraud. The deed, then, is bad in toto, and must be set aside as to both the respondents.

But it is contended, that in as much as the respondents were unmarried at the time the estate was conveyed, and afterwards married, and the appellant declared to the friends , . „ . . r , , - and connexions of their wives that the respondents were the ©wners of the estate, it would be against public policy and contrary to equity and good consciense, to permit him now to avoid that conveyance.

Whether the respondents should affect question,

The evidence of Thomas Goff is, that in 1820 the appellant stated that he intended to convey all his property in Johnstown to the respondents. Catharine Goff testified, that the appellant said he had conveyed or intended to convey his farm. But there is no testimony that any declarations were ever made to the respondents’ wives, before their marriage ; nor does it appear that the conveyance made by the appellant was among the inducements to the marriage. Indeed, it does not appear that they had any previous information or knowledge respecting the transaction between the appellant and the respondents.

No evidence wa8 induced by convey-

The facts, then, do not present the question raised by the counsel, or form any objection to the interference of the Court. Marriage is a valuable consideration ; and if the ° . grantee of a voluntary deed gains credit by the conveyance, and a person is induced to marry on account of the provisions made in the deed, the conveyance, on. the marriage, ceases to be voluntary. This principle was decided in Sterry & wife v. Arden & others, (12 John. 536.)

Therefore, it influence.

Marriage is a. valuable consideration.

ae^ cease^a he so, if a marcef by its™rqvisions.

In the case of Barrow v. Barrow, (2 Dickens, 504) cited by the respondents’ counsel, it was held that a settlement in consideration of marriage, procured by fraud and imposition. in which the wife was not concerned, sho.uld not be s.et aside. In that case, the daughter of the person who, practised the fraud revolted at first, but was prevailed on to marry the person who made the settlement, although his intellects were quitp impaired, and he in a state of childhood. The Court refused to interfere, on thp ground that there was a Valuable consideration proceeding from the party not privy to the fraud.

Case of a tíement^ma^é »00<1 bY mar na°e"

All persons concerned m the demand, or who may be affected by the relief prayed, ought to be parties, if within the jurisdiction of the court.

Charles not a necessary party, for he could not enforce the ¡execution‘ of the trust,'

A trust must fee manifested and proved by writing."'' "' -

The remaining inquiry, is whether Charles Whelan is a a necessary party, in consequence of the deed given by the appellant to 'William in trust for Charles. All persons concerned in the demand, or who may be affected by the relief prayed, ought to be parties, if within the jurisdiction of the Court. The question here, is whether Charles Whelan, could enforce the execution of thp trust. If he cp.uld, not, hq is not a necessary party. The farm in St. Lawrence county, on the face pf the agreement wás pqnyeyed unconditionally to William. He admits in his answer, that he agreed to com yey it to Charles, as the appellant should direct. There, was po declaration qr evidence of trust in writing, and the deed is absolute. This case cannqt be taken out of th,e. statute of frauds. A trust need not be, created by writing, but it must be manifested and proved by writing. The nature of the trust, and the terms and conditions of it, must sufficiently appear ; so that the Court may not be palled on to execute, the trust, in a manner different from that intended. (Steere v. Steere, 5 John. Ch. 12. 3 Ves. Jun. 696, Foster v. Hale.). It follows then, that Charles Whelan could not compel the execution of the trust. The deed for the St. Lawrence farm, rests on the same foundation as the conveyance to the respondents jointly. I am of opinion, that the, decree of his Honor the Chancellor, be reversed ; and that a decree’he entered, declaring, that the deed from the appellant to the respondents for the farm in Johnstozm, and the deed to William Whelan for the S.t. Lawrence farm, be annulled and held, for nought, and that the appellant recover against the respondents- his costs in the Court below, to be taxed.

Savage, Ch. J. Bowman, Bowne, Borrows, Burt, Clark, Cramer, Earll, Gardiner, Green, Haight, Keyes, Mallory, M’Call, M’Intyre, Morgan, Nelson, Stbanahan, .Thorn and Wheeler, Senators, concurred»

ato am, Senator, went into a very full examination of the pleadings. He said the points for the consideration of the the Court, are—r

L. Whether the conveyance of the 19th January, 1821, wo.1: fraudulent and void, by reason of William?s false repyesentations; or by bis suppression of the truth when he was bound to speak.

, ^

2. If not, was the appellant sq much under the influence of the respondents, or either of them, that the conveyance was not the execution of a free, unbiassed purpose of bounty ?

3. Whether the Court can compel a re-conveyance of the Si. Lawrence farm; Charles Whelan not being a party to the bill.

Upon the first point he went at large into the facts conpeefed with and immediately preceding the conveyance, as those upon which the opinion of the Court must rest. The subsequent transactions, he said, may be regarded as circumstances, but not of primary importance, in the decision of the cause. They may aid in the conclusion, but cannot be the basis of our judgment. The Johnstown farm was worth at least $8000, and the personal property there amounted to about $400 ; but there is no evidence as to the value of the Si. Lawrence farm, or the personal property upon it. The respondent was 74 years of age, and his wife about 67, at the time of the conveyance. According to the admissions of the answers, he had, some time previous to the spring of 1819, resigned the charge of his real estate at Johnstown to his sons, John, Joseph and William ; the reason of which, as stated by William, was to make them men of business ; though Joseph says he did not know the reason. How long they had occupied the farm does not appear. In 1819, Carr, the appellant’s son-in-law, came into possession and occupied it till the fall of 1820; when all the children then at home, except the respondents, removed to Indiana3 leaving the respondents in full possession, with the appellant. About the same time, Martha, the appellant’s wife, left the house, and took lodgings with Mrs. Shurtliff. The respondents admit thpre had been dissension in the family, but ^eny, in the first part of their answer, that it arose from dis=. agreement as to the management of the farm. In June, 1820, the appellant had, of his own motion, executed a deed of the farm in question to Joseph and William,, taking a bond and mortgage from William alone, for $3000. These papers were drawn at Johnstown, and the transaction was known to Joseph. In September following, William being dangerously ill, this was rescinded, on the mere request of the. father, the respondents releasing to him all their right; the- appellant t¡ius becoming re-seized o| the farm about the time his wife and children left him. Cut off from all communication with the rest of his family, the appellant continued to reside with Joseph and William till January, 1821 ; when, on the latter returning from Albany, they found the copy of the summons from Mrs. Shurlliff. In relation, to this., William admits that his father asked him what was to be done ; to which he replied, and had often told him before, that if he had any thing to give him he wished to know it, otherwise he would abandon the place— that as the appellant and his wife were acting, they would soon have Utile enough for themselves. That it was then agreed, as the father, had long intended, to execute the conveyance and bill of sale. On the 19th, William and his father, with John Clary, who appears to have been a mutual friend, went to the office of Mr. Reynolds, an attorney and counsellor at law, an entire stranger, 10 miles miles distant, for ffie purpose of having the proper conveyances ' drawn. William's answer, as to what passed there, concurs, in the main, with the evidence of Mr. Reynolds as to the cause of the conveyance. That it was owing to fear of the wife’s extravagance, and the consequent law suits. But Reynolds omits the declaration of the father, set up iri the an- . swer, that he had intended the farm for his sons, and might as well give it to them to-day as to-morrow ; and his mentioning-the consideration he was to receive. So far from this, he appeared not to be prepared or anxious to exact any stipulation from the respondents, for his and his wife’s maintenance, till the propriety of this had been suggested to him* and then he and William agreed on the bond and mortgage.

Evidence ss to

This is the evidence of a person Wholly disconnected with ihe parties, swearing in direct contradiction to William, as •to any moving cause beyond the fears of the father. If the -conveyance was the mere consummation of a prior intent, why did the appellant divest himself of all his real estate, including that in Si. Lawrence ? And where is the force of the other motive assigned by William, that the appellant wished to divest himself of all freehold, to evade imprisonment for debt; when the respondents both admit that they were to pay all subsisting debts, and were to prevent future ones by maintainingbolh the appellant and his wife ? Itis clear thatthe appellant acted under erroneous impressions in regard to his legal liability ; that his object was not to advance any of his children, or settle his estate. But he conveyed because he bélieved, from information, that it was necessary to prevent his estate being squandered by his wife, and to ensure only a temporary imprisonment for debts contracted by her. John Clary’s testimony goes distinctly to these two causes. True, according to his testimony, the appellant protested to God, that a child belonging to him should not have one cent, except the respondents ; for the others had robbed him of all he had, and had not left him a chair to sit on. This declaration is made at the very moment when he is conveying a valuable estate in Johnstown, and a farm in St. Lawrence, with the personal property there, for the use of his son Charles. If this evidence proves any thing, it is, that the appellant was influenced by considerations different from those set up by the respondents ; and, indeed, that he knew not what he said, or what he did. Bis declarations were directly at variance with the truth and with his acts. He declared that he could not trust the people of Johnstown ; which was the reason of his applying to Mr. Reynolds. Clary was also present when the bill of sale was executed, and he states that the reasons for this were the same as for conveying the real estate. This comes from a witness produced by the respondents. M’Naughton was also present with all the parties, and witnessed the bill of sale and bond and mortgage; and the appellant complained that his case was a hard one 5 that the whole was done for the express purpose of preventing his wife from spending the estate.

The evidence shews fraud, should he set r«a«onf°r ^

Was here, then, misrepresentation by William, or a studied silence on the part of the respondents when they ought to have spoken, which led to and confirmed the opinion of their father in the fancied danger to his estate ? Had William before said any thing to strengthen that opinion l Upon a careful and laborious analysis of the evidence, I am of opinion that the appellant’s case has been made out, on this point. The sole management of the appellant’s affairs was in the hands of his sons. Aged, weak, credulous and solitary, he looked to them for advice. Deserted by the rest of his family, whom he abhorred for fancied injuries, and to whom he believed he could never be reconciled, he was left dependent upon these two sons. To the feuds and distractions of his family, was added the pursuit of his property by legal process. He goes for advice and consolation to William, the most favoured of his two remaining children, and the one in whom he particularly confided. And who but William, under such circumstances, would have added poignancy to a father’s wretchedness by a threat of desertion mingled with harsh reproof, and by advice which was immediately followed by a conveyance of his estate ? The facts which the appellant stated as the cause of the alarm which led to the conveyance, must have been derived from one or both of the respondents. At any rate, his fears were countenanced by them both. Both were present when the bill of sale and mortgage were executed, and both then heard the true cause assigned by the appellant. As his children and confidential agen|-S) they were bound in duty to set him right, and to see that he did not act upon such motives. In my opinion, here was Palpable delusion and fraud; and the deed should be set aside for that reason.

How far Charles Whelan is to be credited.

I have arrived at this conclusion, independent of Charles Whelan’s evidence. Though I think him competent, the prospect he has of a portion of his father’s property, and bis stating a conversation between him and William alone, undoubtedly go to his credit; yet he is so entirely supported by the other facts, I think him entitled to much credit. And if he is to be believed, the case presents positive proof of a pre-concerted fraud, compassed by the labour of years.

2. But there is another point in the cause well worthy of consideration. It is that the respondents had an undue influence over the appellant, to such an extent as to preclude our saying that he conveyed the farm and personal property at Johnstown as a free, unbiassed act of bounty.

2d point.

The counsel for the respondents meet this point, firstly by saying that it is not made a substantive allegation in the bill; and if this be so, it cannot be available here. The bill charges, that the appellant was led to convey by the false representations and persuasions of the respondents that his wife was spending the whole estáte—that he conveyed not for the purpose of making a settlement or disposition of his estate, but for the purpose of removing it out of her reach—and that there was no other moving cause for the conveyance than the persuasion and representation of the respondents that such a step was absolutely necessary to prevent the estate being dissipated by the mother. The bill also states the dissensions in the family, with their cause, and the manner in which the appellant lived with the respondents. The parties have gone on to examine witnesses to the point of undue influence, and I think properly ; for, in my opinion, it is substantially involved and sufficiently stated in the bill, though not named undue influence, in terms,

Whether undue influence is put in issue.

su.^ta°tt-all^I jDg it undue is e" Charging it

I have already adverted generally to the situation of the property and the family, their dissensions and ultimate dispersion, and the age of the appellant and his wife, the latter of whom was in delicate health for several years, of an irritable and peevish disposition, and bad taken part with several of the children, against their father, in the dissensions of the family, which arose relative to the use and enjoyment of the real estate at Johnstown. The answers admit, that previous to the lease of 1819, under which Carr possessed the farm, John, William and Joseph had the management of it, and that during this lease, the appellant and respondents resided in a log house, on the same farm, while the wife resided, with Carr, at the homestead. The answers admit the previ°us agency and management of the estate, the separation of the family during the lease, and its dispersion after the lease had expired; virtually saying that the appellant was under the keeping of the respondents, and residing With them for some years previous to the transaction in question. It is abundantly in proof, that the appellant was a credulous man, and easily led, especially by William, who, with Joseph, uniformly took sides with his father, in the dissensions of the family, against its other members. Taking into account the age of the appellant, the double relations of parent and child and principal and agent, the-general credulity of the appellant, and the ease with which he might be led by William, connected with the circumstances attending the conveyance, and the case is brought most emphatically within the principle of those cases cited by the counsel for the appellant which forbid a contract'between persons holding certain relations to each other, which imply, from their nature, an influence and confidence too great to be trusted in the hands of one who may wield them to his own advantage. It was, indeed, truly said at the bar, that no case had been shown in which a conveyance from aparent to one of his children had been set aside for these or the like causes ; but that relief had been refused in such cases.. These refusals were in cases of English family settlements, where provisions were made for children, which the Court adjudged to be reasonable in reference to the estate of the party making the settlement. No case can be cited, in which an aged man, under the custody and influence of one of his relations, disposed of his whole estate to such relation in exclusion of others having equal natural claims upon his bounty, where a Court of Equity would not look into the transaction with an éagle eye. Besides, the English decisions are doubtless influenced by their law recognizing the rights of primogeniture and entailment. In this country these rights are unknown. But it is not sought here to avoid the deed, because the whole property is given to the respondents. That the appellant clearly had a right to do, if he chose. But the objection is, that when he made this conveyance he was, and had been for some time, so much under the influence of the respondents, that he would take their suggestions as his rule of conduct; so that the conveyance was not his act but theirs—it was not the result of his own free will, but an act done under the pressure of circumstances, aided by the suggestions or advice of the respondents. At .any rate, they made no attempt to correct the erroneous impressions under which the appellant laboured, though they were acting as his agents in relation to his real and personal estate, and indeed were bound to this by other powerful considerations of duty. They have, in a word, betrayed the trust and confidence reposed in them, and made a profit of their treachery. This view of the case is, I think, fully sup-? ported by the answers and evidence. It is also a remarkable circumstance, that this conveyance was only about 4 months after the re-conveyance to him of this very property, by William, of whom he had before taken a bond and mortgage of $3000. The first conveyance, it seems, was for fear of a judgment, and the property was, on the appellant’s request, surrendered by the respondents. According to their account, they received the first deed without inquiry, William alone gave the mortgage, and the whole property was readily surrendered. Would these things have taken place, if, as pretended, it had been the long and settled purpose of the appellant to convey by way of advancement ? The truth seems to be, that he had surrendered himself as well as. his estate, to the charge of the respondents. His age, his education, his infirmities, and his passions, all combined to. make him a fit subject to be operated upon by trifling causes. He bad no benefit from the advice of counsel, or of any one except Claiy, who was also the friend of the respondents. From these considerations, followed by the hurried, secret and suspicious manner in which the business was transacted, I feel constrained to say, that if there ever was a case in which a Court of Equity ought to avoid a deed for undue in- . T- j o- ..... fluence, this is one.

Evidence of undue influence.

The case is "brought within the principle of those authorities which disallow a contract between persons standing in certain confidential relations to each other.

Deed void foe undue ence-

3. William having submitted, in his answer, to re-convey the St. Lawrence farm, and there being no written declaration of trust, I can see no reason why we should not adjudge a re-conveyance. On a bill filed by Charles, or his children, William might set up the statute of frauds, and defeat a conveyance 5 and he admits that this farm was given, to him in trust for such purposes as the appellant should direct.

Charles Whecessary party"

Though Joseph appears only to have assented to the act of William, yet I think the deed is void as to both.

I am, therefore,"of opinion, that the decree of his Honor the Chancellor should be reversed ; a'ud that a re-conveyance of the two farms should be decreed.

For reversal, 23—foraflñm»

Bronson, Dudley, Lynde, Redfield, Ward, Wooster ancj tVright, Senators, dissented.

A majority of the Court being for a reversal, the following, order was thereupon entered :

“ It is ordered, adjudged and decreed, that the decree, of the Court of Chancery, appealed from, be and the same is hereby reversed. And it is further ordered, adjudged and decreed, that the deed and conveyance executed by the appellant to the respondents, on the 19th day of January, 1821,»andinthe pleadings in this cause mentioned, whereby the appellant conveyed to the respondents, in fee, a certain farm of land in the town of Johnstown, in the county of Montgomery—and also another deed and conveyance executed by the appellant to the respondent William Whelan, on the day and year last aforesaid, and also in the said pleadings mentioned, and whereby the appellant conveyed to the said William Whelan, one of the respondents, in fee, a farm of land in the county of St. Lawrence—and also a bill of sale of certain personal property, executed by the appellant to the respondents, and also in the said pleadings mentioned —are, and the same are hereby declared to be, respectively, fraudulent, null and void. And it is further ordered, adjudged and decreed, that the respondents forthwith deliver up to the appellant the said several and respective deeds, to be cancelled ; and that the respondents, also, by a competent deed of conveyance for that purpose, release and convey to the appellant, in fee, ail their right, title and interest, of, in, and to the said farm of land in the said town of Johnstown, in the said pleadings mentioned, with proper and ^ipt covenants against their own acts and transactions, since the said 19i/i day of January, 1821, whereby the title to the said farm may be impaired, or in any wise encumbered. And it is further ordered, adjudged and decreed, that the respondent William Whelan, in like manner, release and convey to the appellant, in fee, all his right, title and interest, of, in, and to the said farm in the county of St. Lawrence, in the said pleadings mentioned, with like covenants; the said deeds to be settled by a Master of the Court of Chancery, if the parties disagree respecting the same. And it is further ordered, adjudged and decreed, that it be referred to a Master, to take and stale an account of the value of the annual rent of the said farm in Johnstown, from the said 12th day of January, 1821; in which account the respondents shall be debited the value of the said rents from the said time until the taking of such account, if the respondents shall then be jn possession of the said farm ; but if they shall have yielded up the possession thereof to the appellant, then to the time of so yielding up the same ; and the respondents shall be credited for the board, maintenance, support and clothing of the appellant and his wife, during the time they or. either of them were maintained and supported by the respondents, since the said 19iA day of January, 1821; and the respondents shall also be credited for any moneys paid to or advanced for the said appellant, since the day and year last aforesaid; and, also, that the. respondents b,e credited the balance of any permanent and beneficial improvements made on the said farm in Johnstown, since the said 19th day of January, 1821. And the said Master shall also take and state an account of the value of the goods and personal property conveyed by the said bill of sale, by the appellant to the. respondents, and which have been sold, disposed of, or appropriated to the use of the respondents, and which shall not be delivered up by the respondents to the appellant before the taking of such account. And it is further ordered, adjudged and decreed, that the appellant shall deliver up to the respondents to be cancelled, the bond and mortgage given by them to the appellant to secure the maintenance, of the appellant and his wife, and mentioned in the pleadings in this cause. And it is further ordered, adjudged anc$ decreed, that the appellant recover of the respondents his costs to he taxed in the prosecution of this suit in the Court of Chancery, and that this cause be remitted to. the Court of Chancery, to the end that this decree may be carried inte execution.”.