Bronx County Trust Co. v. O'Connor , 234 N.Y.S. 414 ( 1929 )

■O’Malley, J. (dissenting).

In my view the findings of the trial court have support in the evidence and should not be disturbed. The issues presented for determination were whether (1) plaintiffs had established that the relations between the defendants and the deceased were of such a character as to render it certain that the parties did not deal on terms of equality, due to the defendants’ superiority of knowledge, the fiduciary relation that existed between them, the weakness and the dependence of the deceased and the trust which she reposed in them; and (2) whether the defendants had established affirmatively that all was open, voluntary and well understood. This was the effect of bur decision on the appeal from the order which denied the motion for an injunction pendente lite in the trust action. (Bronx County Trust Company v. O’Connor, 220 App. Div. 340.) Our opinion in that appeal concluded with these words: “If the facts alleged in the moving papers are established, the plaintiffs will undoubtedly be entitled to relief in this or some other appropriate action.”

This case was tried in the light of that decision. The trial justice saw and heard the witnesses and was in a much better position to judge of their credibility than are we who must have resort only to the printed record.

Assuming, without conceding, that the plaintiffs failed in establishing some of the facts alleged in their moving papers on the motion for an injunction, certain important and outstanding facts are not in dispute. The decedent, Ellen Campbell, was at the point of death when the transactions in question took place, and died within a few days thereafter. She was extremely deaf and practically all witnesses concede that she could be made to hear only when the person addressing her stood close beside her, and then only by speaking in a loud voice. After having gone to live with the O’Connor family she was unable to leave her bed at any time and had access to the trunk which contained her securities only through the O’Connor sisters and their mother. During such time she was without the advice of counsel, which advice she had had prior to her coming to live with the O’Connors.

The trial justice found that she was familiar with neither the value nor the extent of her property. In this connection he said: “ I am satisfied that she did not know the value and extent of her remaining property. She certainly could not have known, because there is no satisfactory evidence that she was ever told the value of what the deed of trust was to cover. Her acknowledgment of her act and deed, assuming she was correctly understood to make such an acknowledgment, thus lacks meaning or legal force.”

This finding has additional and strong support in other evidence adduced. It appears that there were some sixty odd thousand dollars of securities in the possession of Sadie Kaplan, of which the deceased had no knowledge, and which securities were turned over to the administrators several months after the decedent’s death. It is true that the latter was under the impression that Mrs. Kaplan had retained some property belonging to her, but at no time did she ever claim it to exceed the sum of $25,000, and there is evidence that she at one time stated, that it was not more than $10,000, and that her information that it was $25,000 came from the O’Connor sisters.

The trial justice was not impressed with the evidence offered by the defendants in their attempt to show that the decedent fully appreciated the amount of her property or the amount of the proceeds of the stock sold through the brokers by whom Madelon O’Connor was employed. The latter had testified under examination before trial that she had shown the decedent the check which she herself had received from the brokers. In commenting upon this the trial justice stated: “ In her examination before trial Madelon testified that she had shown deceased her own check, thus received, and described in detail her conversation with her aunt about the matter, but on the trial she admitted under cross-examination that the testimony was untrue and that she had never shown (after it was demonstrated to her that she could not have shown) her own check to Miss Campbell. * * * Madelon appears in the light of a witness willing to invent the detailed account of a conversation with her aunt which could never have taken place, and her explanation that she meant a different check is unconvincing.”

The trial court has found that the decedent did not fully comprehend the trust agreement or the amount of property transferred thereby. It is conceded that this agreement was read' to her only in part. While it is true that this was at the deceased’s own request, the trial justice would have been justified in concluding that this request on her part was due to physical and mental exhaustion, and that even if it had been fully read, the deceased, had she been in a better state of health, would have had difficulty in comprehending its full force and meaning.

Through the decision about to be made practically all of the decedent’s property will pass to the O’Connor branch of the family. During the decedent’s life the evidence shows that she had made practically an equal distribution between the O’Connor family and the family of her sister, Mary Haas. The effect of the decision at Special Term, on the other hand, is to return to the estate all of the decedent’s property, with the result that this equal distribution, which the decedent when in possession of her full physical and mental faculties apparently attempted to make, will be accomplished.

It follows that the judgments should be affirmed.

Finch, J., concurs.

In each action: Judgment reversed, with costs, and complaint dismissed, with costs. Settle order on notice reversing findings inconsistent with this determination and containing such new findings of facts proved upon the trial as are necessary to sustain the judgment hereby awarded.