
    Margaret Kelly and Margaret Kelly, as Administratrix, etc., of Duncan Kelly, Deceased, Appellants, v. Edward Ashforth and Others, Respondents.
    
      Undue 'influence—action to set aside conveyance of mortgages in trust because of undue influence—presumption of fraud.
    
    Appeal from a judgment entered upon the decision of the court at Special Term.—Judgment affirmed,, with costs, on the opinion of.' the court below. (Reported in 47 Miso. Rep. 498.) Order filed. Present — O’Brien, P. J., lúgra-' ham (concurring.in opinion), Laughlin and Clarke, JJ.
   Ingraham, J.

(concurring): I concur in the affirmance of this- judgment "and

generally in the opinion of the learned trial court.. The plaintiffs, as representatives of the decedent, are not seeking to prevent the enforcement of an executory contract. They are seeking.to set aside a transfer of property made in-Novem-■ ber, 1896, in trust for the benefit of the plaintiff’s intestate and his wife during their lives, with a remainder over to the defendant Ashforth, on/the ground that this arrangement was procured by undue influence exercised by Ashforth. The complaint alleged that the transfer of the property and the trust agreement were procured by Ashforth from Kelly ‘‘by means of undue influence,..fraud and threats against the said Duncan Kelly,” and “that the statement of the considera■•tion for the execution of the said alleged trust agreement * * * was.a trick or device for the purpose of giving to said alleged trust agreement an appearance of validity, and for the purpose of inducing the said Duncan Kelly and the defendant The Farmers’ Loan & Trust Company to believe that said alleged trust agreement was founded .upon a valuable consideration,” but in fact there was no consideration therefor. The evidence disclosed that this property, transferred to the Farmers’ Loan and Trust Company in trust, consisting of tw'o mortgages of .the value of $25,000, was the property of Duncan Kelly, who had a perfect right to do with it as he saw fit. -He could have spent it, given it away, bequeathed it by a last will and testament,, or treated it as any one has the power to treat his own property. He transferred the property to the Farmers’ Loan and Trust Company by valid transfers, and at the same time there was executed a written agreement by which the trust company agreed to hold the bonds.arid-'mortgages upon certain trusts specified. There was-no evidence‘that Kelly was not perfectly sane and in the full possession of all bis faculties at the time he made this agreement; that he did riot know what he was about, or did not intend to do just what he did, and for almost nine years after the trust was created he acquiesced in it, received the income from the trust property under,the trust agreement, and never expressed-any-dissatisfaction with the arrangement. There was no evidence that this arrangement was suggested by the defendant Ash-forth; that it was through his influence that Kelly transferred the property and executed the trust agreement, or that he had' anything to do with the transaction, except that he was present at the time that the trust agreement was executed and joined in its execution. There certainly was nothing in the situation, in the relations between Ashforth and Kelly, the acts of Ashforth in relation to the transaction, so far as they appeared on the trial, or from the provisions of the instrument itself, which raised a presumption of fraud; and there being no presumption of frau i, the burden was upon the plaintiffs to show that fraud or undue influence existed. The case being entirely bare of any such evidence, the plaintiff failed to establish any cause of action.  