
    Sears et al. v. Shafer and another.
    
      Cancellation of deed. — Undue influence. — Limitation.
    Equity will annul a voluntary conveyance, obtained by persons standing in such relation to the grantor, as to give them a controlling or very strong influence over his conduct, upon slight evidence of its improper exercise. In equity, the statute of limitations does not bar relief, on the ground of fraud, unless the facts constituting it were discovered, more than six years before the Sling of the bill.
    The statute of limitations must be pleaded, or insisted on, by way of defence, in the answer.
    Sears v. Shafer, 1 Barb. 408, aifirmed.
    Appeal from the general term of the Supreme Court, in the second district, where a decree, made at special term, annulling a release, on the ground of undue influence, had been reversed, and the plaintiffs' bill dismissed, with costs. (Reported at special term, 1 Barb. 408.)
    This was a bill in equity filed by the children and heirs-at-law of Elizabeth Sears against John and George Shafer, the sons of Frederick Shafer, deceased, who was a brother of the said Elizabeth Sears, to set aside and annul a deed of release executed by the latter to her brother Frederick, on the 5th February' 1820, on the ground of undue influence, and absence of consideration.
    Dederick Shafer died seised of certain real estate in the county of Orange, on the 25th March 1807, leaving three sons, Dederick, Daniel and Frederick, and one daughter, the said Elizabeth Sears. By his will, he devised to his three sons the farms severally possessed by them, without words of inheritance, in the following terms: “ I give unto my son, Dederick Shafer, the farm he now *lives on, or has in possessionthe de- # vises to the other sons were in the same terms. L To his daughter, Elizabeth, he bequeathed the sum of 7201 to be put at interest, and the interest paid to her yearly, and the principal to be divided among her children, after her decease, by her brothers above named, who were appointed executors.
    The executors duly proved the will, and letters testamentary were issued to them; they paid a part of the income of the 7201 to Mrs. Sears, up to the time of her decease, and the balance thereof to the plaintiffs in this suit, in 1832 — the principal sum having been paid to them in 1824.
    On the 5th February 1820, about five months prior to the death of Elizabeth Sears, the three brothers executed to each other mutual releases of their reversionary interests in the farms devised to them for life, in which Mrs. Sears was induced to join; the releases recited that it was the intention of their father to give his sons an estate in fee, and that they were anxious and willing to carry such intent into effect. No consideration was in fact paid for such releases, and they were not recorded until 1841.
    In 1839, an arrangement was made, whereby Frederick Shafer charged the farm devised to him with the sum of $800, for the benefit of Jacob Shafer, which sum was also secured by the bonds of the defendants, his children, payable three and four years after the decease of both their parents, provided Jacob should indemnify them against any claim of the heirs of Elizabeth Sears to the farm.
    Elizabeth Sears died on the 28th July 1820, leaving the plaintiffs, her children and heirs-at-law, surviving. The three brothers, Dederick, Daniel and Frederick all died between 1840 and 1844.
    In March 1846, the defendants, sons of Frederick Shafer, deceased, served notices upon the plaintiffs, requiring them to assert their claim to the lands in * 270 1 O.1168^011) *pursuant to the statute for the determination of claims to real estate. The plaintiffs, thereupon, filed declarations in the supreme court, asserting their respective claims to undivided portions of the farm, in fee, and issue was joined thereon. They then commenced this suit to set aside the release from Elizabeth to Frederick, on the ground of fraud and undue influence.
    The bill set forth the facts above stated, and charged that the interest of their mother in the farm, at the time of the release, was worth $1000; that the release was obtained without consideration, and by means of the undue, influence and fraudulent representations ¡of the brothers of their mother, who were trustees of her estate, at a time when she was in a very feeble condition, both of body and mind, shortly prior to her decease, when she was incapable of understanding her rights, without the knowledge of her family, or the advice of her friends, or of any one capable of advising her as to her rights. It was also alleged, that their mother was unable to read the English language, having been instructed only- in German, and that the recitals in the release were false. That the plaintiffs’ father died in 1817, in embarrassed circumstances, leaving their mother with very small means of support, with a family of children, who were all minors, and that she was in a great measure dependent for advice upon, and under the influence of, her brothers. That the two eldest children were absent from home, prior to their mother’s death, and did not return, except about once a year, on a visit.
    The answer admitted the principal facts alleged in the bill, and among other things, that no consideration was paid for the release; but averred that-it was the intention of the testator, Dederick Shafer, the elder, to [*271 devise a fee in the farms to his *said three sons, and that the releases were executed, with a full knowledge on the part of the plaintiffs’ mother, that such was his intention, and because she felt morally bound to effectuate the same.
    It appeared from the evidence, that Mrs. Sears was habitually of an uncommonly mild and amiable character, and, in cases of difficulty, very yielding in her disposition. That during the winter of 1820, immediately preceding her death, she was in a hopeless condition, from the effects of a cancer which had been pronounced incurable by her physician, and which was rapidly hurrying her to the grave. And that during this period, while she was mostly confined to her bed, suffering excruciating pains, and enduring great mental prostration, Daniel had many secret and confidential interviews with his sister, and at one time carried her in a sleigh to his own house, where some writings were executed; presumably, the releases in question. A witness testified to having heard her say to Daniel, that he had compelled her to sign papers against her will, and she was very sorry for it.
    The learned judge before whom the case was brought to a hearing at special term (Barculo, J.), made a decree in favor of the plaintiffs, setting aside the release, as having been obtained by undue influence. The general term, however, upon a rehearing, reversed this decree, and dismissed the plaintiffs’ bill, with costs, without prejudice to the pending actions of ejectment; whereupon, the plaintiffs took this appeal.
    
      Noyes, for the appellants.
    
      Wilkin, for the respondents.
   Gridley, J.

— On the 2d day of April 1804, Dederick Shafer made his last will and testament, by which he devised to his three sons, Dederick, Daniel and Frederick, the three farms on which they then resided; and bequeathed to his daughter a legacy, the interest of which he directed to be paid to her annually, by his executors. The testator died in 1807, leaving the will unrevoked and in full force. In the winter of 1820, the three sons concluded to release to each other the remainders in the farms they respectively occupied under the will of their father; in which release, their sister, Elizabeth Sears, was induced to unite, on the ground, as was stated on the face of the release, of a conviction that it was the intention of the testator, to devise an estate in fee-simple, instead of a life-estate. The release in question in the present suit was executed to Frederick Shafer, under whom the defendants claim title; and the plaintiffs are the heirs-at-law of Elizabeth Sears, who filed their bill to set aside the release, on the ground that it was procured by fraud and undue influence. The cause was brought to a hearing before Mr. Justice Barculo, at a special term, who granted the relief sought by the bill. A re- * ova i heai’in& *was had, and the supreme court in the y -* second district reversed the decree of Justice Barculo; but without prejudice to the right of the plaintiffs to prosecute an ejectment, at law, to recover the remainder, to which they preferred their claim. From that decision the plaintiffs have appealed to this court.

It is not our purpose to go into a detailed examination of the voluminous mass of evidence contained in the case, but simply to state some general propositions of fact, which we regard as established by the testimony, and which are abundantly sufficient to authorize a court of equity to grant the relief sought by the bill.

A court of equity interposes its benign jurisdiction, to set aside instruments executed between persons standing in the relations of parent and child, guardian and ward, physician and patient, solicitor and client, and in various other relations in which one party is so situated as to exercise a controlling influence over the will and conduct and interests of another. In some cases, undue influence will be inferred from the nature of the transaction alone; in others, from the nature of the transaction, and the exercise of occasional, or habitual, influence. The following authorities will show the existence of the principle, and the character and degree of influence against which the court will relieve. (Casborne v. Barsham, 2 Beav. 75; Hill on Trustees 156, 157, 158, 159, 162; Dent v. Bennet, 7 Simons 539; Story’s Eq. Jur. §§ 308-324; Wood v. Downes, 15 Ves. 120; Huguenin v. Basely, 14 Id. 273.)

I. The relation which the Shafers, who procured the execution of the release, bore to Elizabeth Sears, was that of brother; they were executors of their father’s will, and the trustees of the legacy bequeathed to her; and were the habitual and confidential advisers of their sister, who was then a widow, and in ill health. It is scarcely possible to imagine a more intimate and influential relation than that held by Daniel, one of the brothers, toward his sister, at the time when the release was executed. She was accustomed to rely on his advice, in all her business matters, and to follow it implicitly. This influence on the one side, and a yielding compliance on the other, was increased by the circumstances *in which Mrs. Sears was placed during the last part of her life. She was, habitually, of *• an uncommonly “ mild and amiable character, and in cases of difficulty, very yielding in her disposition.” During the winter of 1820, immediately preceding her death, she was in a hopeless condition, from the effects of a cancer, which had been pronounced incurable by her physician, and which was rapidly hurrying her to the grave. During this period, while she was mostly confined, to her bed, suffering excruciating pains, and enduring great mental prostration, Daniel had many secret and confidential interviews with his sister, and at one time, carried her in a sleigh to his own house, where some writings were executed. It is not clear from the evidence, whether the release in question was executed there or not.

Now, we can only conjecture, what was the subject of the most of those secret interviews, because her own confessions to her nurse, which are detailed in the case, are not evidence in favor of her children. But there is one interview which was in part overheard by a witness, which gives us a clue to the others. Mary Sears testifies as follows: “ I was in the room, when her brother came in, and I went down stairs, and left him with my. stepmother, and after he had been there some time, I went up stairs again, to go into the room, and the door was standing a little open and I heard her speaking quite loud for her, in such a feeble state, which induced me to stand a moment at the door to hear; and I heard her tell him, that she was not willing to sign any more papers; that he had compelled her to sign those papers that she had signed before, against her will, and she was very sorry for it; and he appeared to be quite • out of humor.” We are not advised of any other papers, which she executed during this period, than the release in question ; and we are justified in believing, that this conversation had reference to some one of the releases executed to her brothers, during that winter.

II. The release (though a pecuniary consideration appears upon the face of the deed) is conceded to have beengranted without any other consideration than a belief that it was the intention of the testator to devise * 274 1 an es*a*e inheritance *instead of an estate for •i life, and a desire upon her part to effectuate that intention. The releases were prepared beforehand, and probably as early as November 1819, judging by the date of that executed to Daniel, which is in November 1820, some four months after the death of Mrs. Sears. Nqw, November is the time when she went to New York to take surgical advice in relation to her disease, and when she returned with the information that the cancer was incurable. The release was, doubtless, then prepared, with a blank for the year, which was afterwards filled up, without altering the month. It is not clear, that Mrs. Sears understood the full effect of the paper she executed; she could not read or write English, and though it is said by the widow of Daniel, that the paper was read over, before it was executed, yet the witness was so far advanced in years, and her memory so feeble, that but little reliance can be placed on the accuracy of her recollection; she herself says, that though she thinks she and her husband signed the release, at the same time, yet “ it appears like a dream to her” And if we should suppose it to have been read over in her presence, how accurately she comprehended the technical language of the instrument, in her feeble state of body and mind, and with her imperfect knowledge of the English language, it is impossible to conjecture.

III. The conduct of the grantees in those releases is indicative of a want of confidence in their validity. They were not put on record, till after the year 1840, and just before the death of the tenants of the life-estates. The arrangement, too, between Frederick Shafer and Jacob his brother, and the execution of bonds by the defendant to Jacob, to pay eight hundred dollars, “provided Jacob should indemnify them against the claims of the heirs of Elizabeth Sears, to the farm,” affords strong proof that there were great doubts, entertained by the parties, of the validity of those releases.

IV. Another striking feature of the transaction in question is/that the remainder which Mrs. Sears was induced to release was the inheritance of her children, and could not, in the ordinary ^course of things *275 ] be enjoyed by her; she was, at the time, a hopeless invalid, hastening .to the grave, under the effect of a most painful malady, and with only a few months of life before her. Could she expect to survive her brothers, and enjoy the estate she was releasing? And does it comport with the instincts of maternal love, to strip her children of their legal rights, and cut them off from their inheritance ? And would it not require the application of powerful motives to a mother’s heart, to induce her to surrender to her brother, the pittance which the law had given to her children ? It does not appear, that there was any other proof of the intention of the testator, than what was derived from the language of the will itself, which, by a fixed legal construction, gave only a life-estate to the devisees.

V. The respondents have made a point that the court will hold the plaintiffs barred by lapse of time, in analogy to the statute of limitations; and it is said, that Mrs. Sears died in July 1820, and, therefore, that twenty-six years elapsed before the bill was filed. It is sufficient to say to that argument, that there is no such ground assumed in the defendants’ answer, and if there had been, then, there is no evidence that the fraudulent procurement of the release was known to the plaintiffs, till they were placed on record, and less than five years elapsed from that event, before the filing of the bill. By the 51st section of the title of the revised statutes, “ Of the time of commencing actions,” it is provided, that, “bills for relief on the ground of fraud, shall be filed within six years after the discovery, by the injured party, of the facts constituting the fraud.” This bill was filed within that period; this circumstance seems to afford a sufficient answer to the objection,

The decree of the supreme court at general term should be reversed, and the decree made at the special term affirmed, with costs in the court below.

Decree reversed, and that of the special term affirmed. 
      
       It is well settled, that where parties occupy a confidential relation to each other, a contract between them must be affirmatively shown to he fair and lust, and not procured by fraud or undue influence. Siemon v. Wilson, 3 Edm. Ch. 36 ; Fish v. Miller, Hoff. Ch. 267 ; Bergen v. Udall, 31 Barb. 9 ; Gould v. Gould, 36 Ibid. 270 ; Comstock v. Comstock, 57 Ibid. 453 ; Ross v. Ross, 6 Hun 80.
     
      
       Erickson v. Quinn, 47 N. Y. 410
     