
    Barclay Haviland, Resp’t, v. Martha T. Willets et al., Adm’rs, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Release — Fraud.
    Plaintiff’s brother executed a will by which he left the larger part of his estate to two nephews of his wife, but one of said nephews died before the testator, and his share lapsed aud went to plaintiff, who was the sole heir-at law. Plaintiff was a farmer, seventy-four years old, and before he was informed of his rights in 1lie matter, the other nephew, who was the executor, induced him to go before an attorney and sign a release and agreement to a division of the estate in accordance with the terms of the will. At such meeting the attorney mentioned to the executor, in technical language, that the legacy to the nephew had lapsed, and that plaintiff was entitled to half the property, but plaintiff testifies that he did not hear him. ' Seld, a proper case for cancellation of the release.
    Motion for new trial and to set aside an interlocutory judgment in plaintiff’s favor.
    The action is brought to have set aside a certain agreement in the complaint set forth, on the ground that it was executed by the plaintiff in ignorance of his rights, and in ignorance of the facts upon which such rights depended; and that its execution was procured by the other party thereto, who had full knowledge of all the facts in question.
    Isaac E. Haviland, then a resident of the county of Dutchess, made his will in the year 1855. A copy of the will is annexed to the complaint. By its terms, after giving $2,000 to the plaintiff, his brother, and $2,000 to his father, Eleazer Haviland, and some small legacies of inconsiderable amount, he devised all of his estate to Stephen Taber and Samuel T. Taber, share and share alike, they being the nephews of testator’s deceased wife.
    At the time of making the said will the testator was worth about $40,000, a considerable portion of which had come to him from his deceased wife.
    Shortly after making the will, the testator became insane, and so remained until his death, about Thanksgiving Day, in the year 1885. A committee was appointed of his estate in 1860, and at the time of his death the estate had increased to a value of $177,223.71.
    The testator left him surviving no descendants, and no widow, father, mother, or sister, and left the plaintiff herein as sole heir at law and next of kin.
    Samuel T. Taber, one of the nephews and residuary legatees named in the will, died before the testator, and as to the share devised and bequeathed to said nephew the testator died intestate.
    Immediately after the funeral of the testator, and on the same day (about December 1, 1885), Stephen Taber, the surviving executor and residuary legatee, suggested going to examine the will.
    The plaintiff, in response to such suggestion, and in company with a married daughter, Mrs. Otis, went to the Brooklyn Trust Co., where the will was got out and read by Stephen Taber. Martha Willetts and Phebe Willetts, defendants herein, and being the two daughters of the deceased nephew, were also present.
    The question of the validity of the will, or any of its presents,, does not seem to have been discussed, but a proposition was at once made by Stephen Taber, that the increase of the estate over and above the $40,000 the testator possessed when he made the will should be divided pro rata among the beneficiaries named in the will, according to the amount of their respective legacies or devises. For the purpose of such division, the $2,000 given the deceased father of the testator and the plaintiff was to be treated as if given direct to the plaintiff, making his legacy $4,000. To this there was to be added $15,000 (being the one-tenth of the increase of $150,000), making a total of $19,000 for the plaintiff.
    Some time afterwards Stephen Taber drew up in his own handwriting a memorandum of agreement of the way in which the estate was to be divided. It provides for division upon the basis of the sources from which were derived the $40,000 assumed to have been owned by the testator at the date of his will, the result being precisely the same as the division proposed to be made on the day of the funeral.
    This agreement w'as signed by the plaintiff, by Stephen Taber and by Martha T. Willetts.
    On March 18, 1886, the plaintiff accompanied Stephen Taber to the office of Garrettson & Eastman, the attorneys for the latter, and the' agreement, to set aside which this action was brought, was executed by the plaintiff and by Stephen Taber, individually and as executor.
    Under its terms the plaintiff received $18,000. the remaining $1,000 being held in abeyance to await the final settlement of the estate. The plaintiff was at the time an aged man, seventy-three years of age, had no attorney to represent him, and was unaccompanied by his wife or any of his children.
    He was ignorant of the fact that his brother had died intestate as to that share of the estate bequeathed to Samuel Taber, the deceased nephew, and was ignorant of the fact that he, as the sole heir at law and next of kin of his brother, was entitled to such lapsed share.
    Stephen Taber, the surviving executor and residuary legatee, had been apprised by his counsel that the provisions of the wall in favor of the dead nephew had lapsed, and that Barclay Haviland took such share.
    In April, 1886, Stephen Taber died. Subsequently the defendants, Martha T. Willetts and Thomas T. Taber, were appointed as administrators, with the will annexed of Isaac E. Haviland.
    Subsequent to the death of Stephen Taber, the plaintiff was advised of his rights, of which he had before been ignorant, and brought this action.
    
      Wm. H. Arnoux and John R. McArthur, for app’lts; Frank B. Lown, for resp’t.
   Pratt, J.

We concur in the conclusions of the learned trial judge in this case. The agreement in question was made between Taber, who was the surviving executor of a will, and plaintiff, who was a legatee and sole heir at law of the testator. It is, therefore, apparent that the executor sustained a relation of trust and confidence to the plaintiff, and that, if the writing shall stand, the trustee and his friends thereby became substantially the donees of that which must have been regarded as quite a fortune by each of them, a fortune which belonged to plaintiff and which it was this trustee’s duty to preserve for and deliver over to him. in due course of administration. The case, therefore, falls within a class which courts always regard with just suspicion. This one presents features which offend the moral sense. An aged man, living on and working a farm, unused to the ways of business, suddenly became entitled to a fortune through events dependent somewhat upon questions of law which, although familiar to lawyers and perhaps to shrewd business men, were, nevertheless, quite abstruse, not to say intricate to an old farmer like the plaintiff. It is conceded that the executor was a remarkably shrewd, experienced, and, as we judge by the result, very thrifty person.

Plaintiff was somehow induced to give an apparent assent to a division of the- testator’s estate, including his share therein, upon a basis totally at variance with his legal rights. He was subsequently taken to the office of a lawyer, not of his own choice, but selected by the trustee. He was utterly without professional advice or assistance of his own selection. The only remark made in his presence, which would even tend to suggest his legal rights, although intended as it is said for his benefit, was not even addressed to him, but to the trustee. It was couched in technical language, which could have had but little meaning to this old farmer then about seventy-four years of age. It is by no means clear that he even heard the remark or felt at liberty to inquire about its meaning since it was not addressed to him. The result was a long, carefully drawn and somewhat involved paper covering five pages of the printed case, three and a half of which are occupied with recitals which become conspicuous chiefly because they fail to disclose the point upon which this old man’s rights depended, and which was the subject of the lawyer’s remark above referred to.

The paper, though in form of an assignment and release, in reality attests an act of simple bounty towards this trustee and his relatives. There was nothing in the relations between these donees and this old man which would naturally suggest such a disposition on his part. He gave none of the instructions which led to the preparation of these carefully drawn recitals. Indeed, these recitals strike us rather as an apology than as the true reason or consideration for the operative clause which follows.

A case so striking could scarcely have failed to impress its details, or, at least, leading incidents upon the memory of the person who prepared this paper. And yet the significant fact appears that the draughtsman was unable to recall but little of anything important save the single remark above alluded to.

We cannot detect with exactness the influences whicli led this old man to do this thing; nor is it necessary that we should do so. The rule to which we allude rests in a great measure upon the improbability that one thus situated should ever be able to prove to a court, or even explain to himself, just what did induce the act in question. The court looks upon the relations and their results. Story Eq. Jur., § 319; Fulton v. Whitney, 66 N. Y., 548.

We fully agree with the trial judge that this old man executed this paper under a mistaken notión of bis rights. But it is said that there is no evidence of mutual mistake. The answer is that mistake on the one hand and fraud on the other is quite sufficient to justify the conclusion reached in this case.

It is unnecessary to consume time in an effort to show the application of this observation ; and we, therefore, without farther-discussion, affirm the judgment, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  