
    William H. Yeandle et al., App’lts, v. Celeste Yeandle, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 16, 1891.)
    
    Appeal—When judgment will not be disturbed.
    Where the case involves simple issues of fact, and there have been three trials, in the latter two of which the defendant has succeeded, and no substantial error is shown to have occurred on the last trial, the judgment will not be disturbed.
    Appeal from a judgment at special term dismissing the complaint on the merits.
    Action brought by plaintiffs as the heirs at law of William Yeandle, deceased, to set aside a conveyance made by him to the defendant, who was his wife, of real estate situated in the city of Elizabeth, New Jersey, on the alleged ground of the incompetency of the grantor, and of fraud and undue influence on the part of the grantee.
    The deed was executed on April 16, 1880, and was recorded the next day. The conveyance was made to Eliza H. Hobart, and by her to the defendant, and both deeds express a consideration of $3,000 received from the defendant. William Yeandle lived more than five years after the execution of the deed and died August 24, 1885.
    
      Marshall P. Stafford, for app’lts; Joseph A. Shoudy, for resp’t
   Bartlett, J.

This case now comes before the general term ior the third time. The action is brought by the heirs at law of William Yeandle, deceased, against his widow, to set aside a conveyance of certain lands at Elizabeth, New Jersey, made by Mr. Yeandle to his wife in 1880, when he was seventy-six years old and she was fifty. This conveyance was attacked on the ground that the grantor was of unsound mind at the time of the execution and delivery of the deed, and that it was obtained from him by the fraudulent exercise of undue influence on the part of his wife. On the first trial the plaintiffs prevailed; but the judgment was reversed by the general term on account of errors by the trial court in receiving evidence which had a direct and material bearing upon the issues. Yeandle v. Yeandle, 13 N. Y. State Rep., 586.

On the second trial the defendant succeeded; but the judgment was again reversed; this time by reason of the erroneous exclusion of testimony. Yeandle v. Yeandle, 24 N. Y. State Rep., 614. On the third trial, the record of which is brought up for review by the present appeal, the defendants have succeeded for the second time; and the plaintiffs for the second time ask us to reverse the judgment

The substance of the argument submitted in their behalf is that upon the undisputed evidence the burden of proof was cast upon the defendant of showing that the transaction between her and her husband was free from fraud and undue influence; that she failed to discharge the burden thus cast upon her; and that the evidence as a whole affirmatively established both the incompetency of the grantor and the exercise of undue influence on the part of the grantee at the time the conveyance was made. We find nothing to indicate, however, that the court below misapprehended or misapplied the rules of evidence applicable to the case, and, on the contrary, a very careful consideration of all the proof satisfies us that it is amply sufficient to sustain and justify the conclusion which was reached. We do not deem it necessary to discuss the facts in detail. It is enough to say that we agree substantially with the views expressed by Mr. Justice Ingraham on the second trial, and by Mr. Justice Lawrence on the trial which resulted in the present judgment. Only one error in the admission or exclusion of evidence is pointed out upon the brief of the appellants; and although the ruling to which our attention is thus called is undoubtedly subject to criticism, its effect can hardly have been seriously injurious to the case for the plaintiff; certainly not harmful enough to warrant a reversal.

We do not think there ought to be any more trials of this action. It involves simple issues of fact which two out of the three judges before whom the case has been tried have decided in favor of the defendant. No substantial error is shown to have occurred upon the last trial, and the judgment then rendered should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.  