Hunter v. McCammon , 104 N.Y.S. 402 ( 1907 )

Houghton, J.:

By her industry and economy the plaintiff had acquired real ■ property of the value of about $20,000, besides some additional money, with which she had made unfortunate investments.

On the 5th day of April, 1900, without any money being paid therefor, she conveyed this real estate to the defendant, her daughter and only -child, the conveyance containing a clause that the-defendant should execute to the plaintiff a life lease of the premises,, and further, as part consideration-for the conveyance, that in case-the plaintiff should, become destitute or unable to support or cam for herself the defendant would provide such care and support. The lease was executed and delivered, and in-1905 "this action was brought to set aside the conveyance on the ground that it was prov cured by fraud, duress and undue influence, a’nd that plaintiff was in such state of mind that she did not comprehend the' nature of her act. A decree setting aside the conveyance has been granted, from which the defendant appeals.

While the evidence is meagre, we think it is sufficient to uphold the judgment. The plaintiff was old and in feeble health and disturbed in mind, and had gone to Ithaca, H. Y., respecting some' money which she had loaned, and the defendant followed her there and demanded that she be given a deed of the real property, threatening if this was not done to have nothing further to do with the plaintiff. . According to her own statement the plaintiff did not understand the full purport of the transaction. She says that the defendant procured an attorney tó draw the papers, which was done without the title deed, so that any specific description of the property could be given, notwithstanding she pleaded to postpone the execution of the paper until she could consult her own attorney. In addition the defendant proceeded to acquire whatever else of value the plaintiff had by way of money or jewelry.

The plaintiff was ill from time to time and a patient in several hospitals, and frequently called upon the defendant to care for her and to give her money upon which to live. Both of these things the defendant refused to do, and for long periods the mother did not know where the'defendant was, and was in possession of no address at which she could communicate with her. In reply to the plaintiff’s importunities for care and assistance the defendant said that it was better for the plaintiff to work, and- that she never intended to keep her agreement to take care of her and furnish her money.

From the testimony it is apparent that the plaintiff’s mind at the time she executed the conveyance was greatly weakened from illness and anxiety, and that the daughter, by threats of abandonment and promises of comfort and care which she never intended to bestow, persuaded the plaintiff to divest herself of all the property which she possessed.

While it may be impossible to say that any .specific testimony ■ meets the legal definition of actual fraud or duress or undue influence, yet, the evidence taken as a whole, shows the existence of confidential relations between the mother and daughter, weakened and impaired intellect ón the-part of the mother, and a strong and overmastering will on .the part of the daughter. This situation imposed upon .the defendant the burden of showing that the transaction was fair, open, voluntary and well understood. Where the relationship between the parties is that, of parent and child, principal and agent, or. where one party is situated so as- to-exercise acontrol- • ling influence oyer the .will and conduct of another, transactions between them, are scrutinized with extreme vigilance, and clear evidence is required showing, that the transaction was understood, and .- that there was no fraud, mistake or-Undue influence. Where these relations .exist there must be -clear proof, .of .the integrity and fairness of the transaction, else any instrument thus obtained will be set aside or held .as invalid between the parties.- (Ten Eyck v. Whitbeck, 156 N. Y. 341; Green v. Roworth,, 113 id. 462; Rosevear v. Sullivan, 47 App. Div, 421.)

The defendant failed to meet this requirement-of law and to show that the mother fully, .understood the transaction and that the- deed ivas procured' without -any 'deception or-unfair advantage being' taken. ' The defendant confessed that her promise-of support was. not given in good faith, and-all of her subsequent conduct goes to show that her only object was to get possession-of her mother’s property by preying. .Upon her fears- and deceiving' her as to the necessity of the transfer.. '

The plaintiff’s right is not barred by her delay in bringing the action. The defendant-had promised to reconvey on more than one occasion. In view; of. the relations between the parties, such prompt action as'would be required against a stranger was not a . necessity.

.We are-of-the opinion that, the- judgment is right and-that it sjhonld .be.affirmed, with .costs.

Patterson, P. J., and Lambert, J., concurred; McLaugstlin ■and Scott, JJ., dissented. ' ' . ..