Opinion
July Term, 1900.
William B. Crowley, for the appellant.
George H. Sears, for the respondent.
The facts stated show the existence of a relation of trust and confidence between the decedent and Sullivan similar to that existing between an attorney and client, bringing the case within the principle of the rule applicable to the latter relation, and the burden of proof was upon the defendant to show by clear, convincing and satisfactory evidence that the decedent perfectly understood the nature and effect of the assignment; that the execution thereof by her was free from fraud and was her voluntary act. (Pom. Eq. Juris. § 960; Story Eq. Juris. §§ 311, 312, 312b, 312d; Freelove v. Cole, 41 Barb. 318; Nesbit v. Lockman, 34 N.Y. 167; Barnard v. Gantz, 140 id. 249; Ross v. Ross, 6 Hun, 80; Tucker v. Dean, 21 Wkly. Dig. 519; Lansing v. Russell, 13 Barb. 510; Ridden v. Thrall, 125 N.Y. 572; Case v. Case, 49 Hun, 83; Matter of Manhardt, 17 App. Div. 1.)
In the Nesbit Case ( supra) the rule is well stated, as follows: "It is certain that the law regards a transaction, like the one in question, with great suspicion; that where persons, standing in a confidential relation, make bargains with, or receive benefits from, the persons for whom they are counsel, attorney, agent or trustee, the transaction is scrutinized with the extremest vigilance and regarded with the utmost jealousy. The clearest evidence is required that there was no fraud, influence or mistake; that the transaction was perfectly understood by the weaker party, and, usually, evidence is required that a third and disinterested person advised such party of all his rights. The presumption is against the propriety of the transaction, and the onus of establishing the gift or bargain to have been fair, voluntary and well understood rests upon the party claiming, and this in addition to the evidence to be derived from the execution of the instrument conveying or assigning the property."
In the Tucker Case ( supra) the court say: "When relations exist between two persons founded upon ties of blood, love and affection, to which are added those of confidence in fiduciary matters, and a contract is made or any proceeding adopted by which one disposes to the other of all his property, the law regards the transaction with great jealousy, and requires that it shall be established by testimony which must be so reasonably certain as to establish beyond reasonable doubt not only the fairness and validity of the transaction on its merits, but that it was not the result of undue influence exerted through the elements above stated."
In the case at bar the decision rests upon the testimony of Sullivan's wife, corroborated somewhat by his father and brother, but impeached by his silence and by his conduct and course of dealing with this stock subsequent to the assignment and prior to decedent's death. The testimony of Mrs. Sullivan is not convincing. It is improbable that the decedent, if she thoroughly understood the transaction, would have parted with the title to this stock, the income of which, apparently, was her only support, and it is still more improbable, in view of her advanced age and tendency to nervousness over business transactions, that she would or could have supervised the execution of this assignment, including the attaching of the seal, in this lawyer-like manner and have given such minute directions with reference to filling out the blanks to Sullivan, who had studied law and transacted her business for years.
In Farian v. Wiegel (76 Hun, 462) the court say: "We do not think the evidence by which the gift is sought to be established is `clear and convincing, strong and satisfactory.' All of the testimony tending to support the gift was given by the donee's wife, and, while she had no present legal interest in establishing it, experience has shown that the interest of a loyal wife in the affairs of her husband is as intense as his own, and quite as likely to warp her judgment and accuracy when testifying in his behalf as is the legal interest of the husband to warp his judgment when testifying in his own interest. Besides the fact that the title by gift is supported only by a witness who has, in all senses except the legal one, a strong interest, there are circumstances of great probative force which render the testimony of the wife improbable or, at least, far from satisfactory and convincing."
In Ridden v. Thrall ( supra) it was said: "Such a gift (referring to a gift causa mortis asserted after death) should be proved by very plain and satisfactory evidence, and if the case depended upon the evidence of the wife alone any court might well hesitate to uphold the gift."
In Matter of Manhardt ( supra) Judge FOLLETT, writing the opinion of the court, said: "The gift in the case at bar is sought to be sustained as a gift inter vivos, but when such a gift is not asserted until after the death of the alleged donor, the evidence to sustain it must be as clear, strong and convincing as the evidence required to sustain a gift causa mortis."
We regard the slight corroborative evidence of the wife of the donee in this case as itself unsatisfactory and improbable, and are of opinion that the defendant failed to sustain the burden of proof resting upon her. The judgment appealed from is, therefore, reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except ADAMS, P.J., who dissented.
Judgment reversed and new trial ordered, with costs to abide event.