
    George W. Carpenter, Ex’r of Anna Theall, Resp t, v. Carrie M. Mosher et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 12, 1890.)
    
    1. Appeal.
    An appellate court will not disturb the decision of a judge where the evidence was conflicting and evenly balance
    2. Deeds — Confidential relations.
    In an action to set aside a deed on the ground of fraud where confidential relations existed, the burden of proof is on the beneficiary.
    '3. Same — Fraud.
    Where a portion of the consideration agreed upon for a conveyance of property between persons holding confidential relations was the support of the grantor for life, an omission to put an agreement to that effect in writing is a strong evidence of fraud.
    Appeal from judgment of special term vacating and setting aside certain deeds of real estate and restoring the plaintiff, Anna Theall, to full ownership and possession.
    The action was brought by Anna Theall to set aside the deeds on the ground of fraud and undue influence. Defendant, Game Mosher, was her adopted daughter. At the time of the making of the deeds Mrs. Theall was seventy-two years old. She claimed and gave testimony to the effect that she was induced to sign the deeds on the representations made by defendants and others in their interest that one Henderson, who was a tenant of a portion of the premises, was not paying his rent, and that the only way to procure his removal was to sell the premises and so cause him to be dispossessed under a clause in his lease, and that such representations were in fact untrue.
    Defendants claimed and gave evidence to show that the deeds were given in consideration of love and affection and in further consideration of an agreement of defendants to support and "care for said Anna Theall and her husband during their lives. Ho such agreement, however, was executed.
    
      Q-. 0. & L. S. Hulse, for app’lts; JohnH. Clapp and Jarvis Wl Mason, for resp’t.
   Pratt, J.

The case presents a fair question of fact with abundant evidence to sustain the decision.

As the trial judge had the advantage of seeing the witnesses it would be manifestly unwise to interfere with his conclusions in a case where the testimony is so evenly balanced.

It may, also, be remarked that the burden of proof rested upon the beneficiary. Case v. Case, 49 Hun, 83 ; 17 N. Y. State Rep., 313.

The case of Sweet v. Bean, 67 Barb., 91, is also .in point, and the criticism made 'upon the agreement in that case as not containing the stipulation for support of the grantor is equally applicable here.

The judgment must be affirmed, with costs.

Barnard, P. J., concurs.  