Ferris v. Ferris , 54 N.Y.S. 523 ( 1898 )

PEE CURIAM.

The learned judge at special term held, in substance, that the relation between the defendant and his mother in reference to the estate of her deceased husband was an agency involving an element of trust, the bare proof of which raised a presumption adverse to the releases, making it incumbent upon the son to show affirmatively, in the language of Cowee v. Cornell, 75 N. Y. 91, “that no deception was practiced, no undue influence was used, and that all was fair.” He was of the opinion, however, that the defendant had sustained the burden of overcoming this presumption by the evidence which he offered of his mother’s long • and happy home life with him and his family during her 10 years of widowhood, and her strong and constantly growing affection for the defendant as compared with her other children, which the learned judge deemed only natural, under the circumstances disclosed by the proof. Counsel for the plaintiffs concedes that great affection is always a sufficient explanation of testamentary dispositions. If its existence is, satisfactorily proved,—and we cannot say that it was not so proved in this case,—we are unable to see why it may not also suffice to remove all suspicion of unfairness concerning dealings inter vivos, by which property rights are affected. In this view, there is no ground for disturbing the judgment so far as the plaintiffs have appealed from it. We think that the defendant is right, however, on his appeal, in the contention that the releases should have been adjudged effective to discharge him from liability for interest on the $3,000 mortgage up. to the date of the latest release. The award of costs against the defendant at this time must also be stricken out, as the judgment is only interlocutory, and the case is not that provided for in section 3232 of the Code of Civil Procedure.

Interlocutory judgment modified so as to exclude from the accounting thereby directed the item of interest on the $3,000 mortgage, except for a period subsequent to January 13, 1896; also further modified by striking therefrom the award of costs to the plaintiffs; and, as thus modified, interlocutory judgment affirmed.