
    Helen Milchman et al., complainants-respondents, v. William Jayson et al., defendants-appellants.
    [Argued May 21st, 1943.
    Decided November 4th, 1943.]
    On appeal from a decree in Chancery advised by Vice-Chancellor Stein, who filed the following opinion:
    “Jacob Jayson died intestate February 3d, 1939, seized of a number of parcels of real estate in Newark. He left him surviving as_ his heirs-at-law eight children. The instant matter is a suit brought by complainants for partition. One of the defendants, Louis Jayson, a son, filed answer and counter-claim in which he charges (a) that the complainant Helen Milehman is not entitled to share equally with the remaining children of the deceased because of alleged advances made to complainant in the 1’ifetime of her father; (b) that complainant holds certain real estate in her name which the defendant alleges she purchased with her - father’s money and that such real estate is held by complainant in trust for her father’s estate; (c) that the signature of her mother, Elora Jayson, to deeds purporting to convey to the complainant Helen Jayson certain property was forged and should be set aside and that the mother, Flora Jayson, having predeceased the father leaving a last will and testament in which the mother devised her entire estate to the father, this property should be included in the partition proceedings as part of the father’s estate.
    “The issues thus raised are purely factual.
    “It is charged in the bill of complaint that the complainant had no means of acquiring any moneys wherewith to purchase property; that she lived at home with her mother and father and that the father was enfeebled by old age and failing health; that the complainant wielded influence over him and dominated him.
    “The testimony in so far as it relates to the issues raised in support of the counter-claim came from the lips of members of the family. Quarrels, epithets and what would have amounted to fisticuffs except for outside interference were indulged in the court room both before and immediately after the hearings before me. One of the members of the family who testified had been convicted of crime. All of this, plus their demeanor and conduct on the witness stand and their signals from the audience to witnesses on the witness stand renders their testimony incredible.
    “I have not the slightest doubt that the complainant enjoyed the confidence of the mother and father in their lifetime. She remained at home with them and not only cared for them, but as I see the family picture from the evidence, was perhaps their only comfort. Complainant took care of the father’s business, collected the rents from his property, accompanied him to the bank, the lawyer’s office from time to time and went with him wherever it was that he had business to transact, but there is not the slightest evidence to indicate that she attempted to, or did wield any undue influence over him.
    “The consideration which the complainant paid for the various parcels of real estate conveyed to her from time to time she was able to pay and did pay from moneys which she withdrew from time to time from various bank accounts in her name. The bank records and the sources from which she obtained the moneys therein deposited were proven to my satisfaction. Some of this money on deposit was $5,252.47 and $2,263.71 in the savings account of the Fidelity Union Trust Company in the name of her mother, Flora Jayson. When the mother died, this counter-claimant, Louis Jayson, made an affidavit on file in the State Inheritance Tax Department in Trenton in which he said:
    “ ‘This savings account [referring to the deposits in the Fidelity Union Trust Company] represents an accumulation of gifts made to my sister, Helen Jayson, by my father and mother and members of the family. The gifts of money were deposited in the name of my mother as trustee for my said sister, Helen Jayson. I know of my own knowledge that my mother had absolutely no interest whatsoever in the account. On divers occasions during the past number of years I have presented my sister with various sums of money, which money I turned over to my mother to be deposited by her in the savings account aforesaid.’
    “The complainant also had $6,951.45, an account kept by her father in the same bank as trustee for her, which account was started December 12th, 1916, shortly after she was born and which was turned over to her after she became of age on June 16th, 1936. In addition, she had received income from the properties which were given to her by her mother and from the properties which she purchased. The evidence is conclusive that it was from these funds that she was able to and did pay the purchase price for the property which she bought.
    “Now as to the property which was conveyed to complainant by her mother in her lifetime. Without going into detail here as to the evidence which led up to this conveyance which clearly demonstrates a legal gift to the daughter, there are in evidence deeds by all of the heirs-at-law reciting these conveyances to the complainant and confirming such conveyances.
    “As to the proof of forgery in connection with the deeds made by the mother to the daughter, and as an example of the kind of evidence given in support of that charge and to show how unreliable was the testimony offered and the length to which the witness to the alleged forgery went, the following will suffice: Q. Now, I show you this deed, which'is dated December 7th, 1935, a deed of property in Bradley Beach, from Jacob Jayson and wife to Helen Jayson, and ask you if that is the deed which was used by your sister in forging these deeds? A. Yes, sir. Q. Now, I notice that the signature of Plora Jayson to this deed — that there appears to be a blurring of the letters. Can you explain how that got there? A. Yes, sir. Putting it up to the light on the window, it is very difficult to tell at the moment whether this is behind the one you are going to copy onto or in front of it, and at one time it was in front of it and she went right over these letters by mistake. Q. And then what did she do? A. Well, waited for it to dry and put it behind and made the copy again.’ ‘The court: I suppose you told your brothers and sisters about it the next day, didn’t you ? The witness: I did not. The court: Why not? The witness: Well, I was told not to tell anybody about it. I didn’t tell-The court: Are you so low in morals that you would not make known the fact that your sister forged your mother’s name to a deed? The witness: Well, it was not for the purpose of defrauding my brothers. - The court: What was it for? The witness: She said to eliminate all taxes that had to be paid on the property. The court: Then, do-I understand you are willing to enter into a conspiracy with her in order to defraud the state? The witness: Well, that is what we did.’ The witness went on to say that he kept this secret to himself for all these years. This witness, Murray Jayson, also testified that he took the acknowledgment on the deed to a notary public. There was also expert testimony by a handwriting expert that the signature- of the mother to the deed was genuine.
    
      “Lastly I find no support in the evidence of advances in fact, or what could be deemed to be advances in law by the father to the complainant.
    “The answer and counter-claim will be dismissed, and there will be a decree for partition of the property described in the bill of complaint.”
    
      Messrs. Kalisch <§ Kalisch, for the appellants.
    
      Messrs. Schotland, Harrison ■& Schoiland, for the respondents.
   Pee Ctjeiam.

The decree under review will be affirmed, for the reasons expressed in the opinion of Vice-Chancellor Stein.

The case is purely factual and we conclude that the testimony fully supports the views of the Vice-Chancellor, except the statement that “there was also expert testimony by a handwriting expert that the signature of the mother to the deed was genuine.” We find no such testimony in the record. Nor could there be such testimony, for the deeds in question were not produced, there being a dispute as to the person in whose possession the controverted deeds were. Notwithstanding this apparent misstatement, we are of the opinion that the proofs amply support the decree. The decree being supported by the facts, it is unnecessary to discuss other questions Taised.

The decree below will be affirmed.

Bodine, J.

(Dissenting.)

I cannot agree with the opinion of the court.

The respondent Helen sought partition of real estate -situate in this state of which her father, a widower, died seized;, intestate, leaving seven other children. One of the defendants, by counter-claim, sought to charge her share by reason of certain transactions to be hereafter related.

The contention is that the respondent Helen procured apparent title to certain properties in her name by forged instruments purporting to be made by her mother, but in fact made by her after her-mother’s death. Further, that she obtained large sums of money and the conveyance of certain properties from her father by undue influence and used the money for the purchase of other properties specified, and that she still holds title to the properties so acquired and purchased.

The purpose of the counter-claim was to cause a trust to be imposed in favor of all the children and accounting by respondent for her misdeeds.

The learned Vice-Chancellor found against such claims, but we think erroneously.

As to the forged instrument her brother Murray testified that she antedated the forged deeds, which purported to be from her mother to her, as of December 10th, 1935, forged the signature after her mother’s death and he took acknowledgments of them as notary. One deed conveying Bradley Beach property he recorded. The deeds to the Newark properties she recorded. The recordings were not for some weeks after the date of the instruments. He is quite graphic in his testimony as to the way in which the forgery was made by tracing the mother’s signature from a deed dated December 7th, 1935, which was prepared by Mr. Appel, a lawyer, and this deed does show that the signature had been tampered with.

There would probably be no trouble in establishing whether or not the instruments were forged, if they were available, but they were not produced, though the person who had possession of them is the alleged forger; and although she said that she gave them to lawyer Appel, when he was preparing certain other deeds, this is denied by him, and the receipt which she claims he gave her for the deeds was clearly shown to be for other deeds. The lawyers, who were familiar with her mother’s signature, never saw the alleged forged deeds. At the hearing, certified copies were produced which, of course, show nothing as to genuineness or forgery of the signatures. When Helen sought to have a confirmatory deed drawn, in order that the heirs might confirm the same to her, she caused the description to be short and the scrivener, who was familiar with her mother’s signature, was not furnished with the deeds.

Respondent’s mother had on deposit at the time of her death more than $7,000 in the Eidelity Union Trust Company. Thereafter, the daughter procured a transfer of this money to an account which she had that date opened in her own name in that company. The Trust Company afterward charged this money back, but by some means not explained, the father, the sole legatee of her mother’s estate, transferred the money to her, together with other moneys which he had accumulated, making in all about $14,000, which together with income received from these properties, she used to purchase other properties at length described in the counterclaim.

It is apparent that the transfer of real estate and money originated in a purpose to defraud the State of New Jersey. Mrs. Jayson left all of her property, consisting of the three parcels of real estate covered by the alleged forged instrument and the cash in bank, to her husband. The husband and the children, apparently for tax evasion purposes, told the story that their mother’s bank account was built up in trust for the daughter Helen by contributions from various members of the family. This was not so, because the account built up for her during her minority was duly transferred when she became of age. It was a distinct and different account from her mother’s account which became her father’s property and which she subsequently procured because of her influence over him.

The only person who could have disproved the evidence of forgery was the alleged forger and the proofs show that she studiously kept that evidence from the lawyers whom she employed to make other conveyances. Eor instance, when she was reconveying the Bradley Beach property to her father she, in part, prepared the conveyance putting in the description. Then she took it to her lawyer and he filled in the missing links, which she, as a lay person, did not know how to draw. It is noticeable that in preparing the forged deeds affecting the Newark property, the instruments recite that the previous conveyances were recorded in the office of the “Clerk” of the County of Essex. No capable Newark lawyer would have so stated, because Essex County has had since 1859' (P. L. 1859 p. 174) a registrar of deeds. The respondent evidently copied a Monmouth County deed made to’ her from which she traced her mother’s signature, since that deed was recorded in the Monmouth County “clerk’s office.” The testimony as to the forgery is to be believed, since it finds support in the proofs throughout the entire case.'

The zeal with which the respondent went after’her mother’s bank account demonstrates her cupidity. As before noted, on the day after her mother’s death she transferred, by 'some means, the money in her mother’s account to her own: This was later charged back. She must have had the paper effecting the transfer. If she had not been fearful she would not have concealed'the'instrument, and the deeds from the court and all who could have exonerated her if she' were guiltless. Further than that, her conscience was not' clear becaus'e, within two months of the recording of the forged deeds of gift, she was seeking a deed of confirmation from her brothers and sisters. If she had possessed a good conveyance she •needed to have nothing more done. She evidently desired tó bolster her position in the event of trouble.

•The family probably went along with her'plans, in order to build a case against the state’s claim for an inheritance tax, probably in the hope that when the state was defeated and the properties were available the respondent would bring the salvaged property in for a division among all.

When Mrs. Jayson, and her husband, conveyed a property on December 7th, 1935, to respondent they employed Mr. Appel to prepare the instrument. If on December 10th of the same year, three days later, they were conveying to her three other properties, it seems strange that they should have the instruments prepared by' an amateur and have them acknowledged before their son Murray, who was said to be a man of poor repute. The question recurs, if these deeds did not bear the earmarks of forgery why were they so promptly concealed? If the daughter was so anxious to secure her mother’s bank account that she went after it by an instrument that was later dishonored by the Fidelity Union Trust Company, there is good reason to conclude that she would by the same means have tried to secure the. real estate, and her subsequent concealment of the instruments from those who would have detected the invalidity of the signature is eloquent proof that she did not dare to show them.

So much for the properties secured by the forged instruments. The complainant should take nothing thereby. She could not and did not offer an expert to prove the genuineness of the signature because she did not produce the instruments themselves, if she possessed them, and if she had destroyed them her guilt would be beyond denial.

The circumstances surrounding the later transfer by her father of the moneys left by her mother in the Fidelity Union Trust Company would indicate a definite purpose to defraud the State of New Jersey. Nothing should she. take thereby, and a trust should be imposed to bring in to the father’s estate the properties so acquired by forgery, as well as those secured with the money obtained in the manner established by the proofs in this case. As to the properties acquired by conveyance from her father and those purchased with moneys obtained in a like manner, a trust should also be imposed.

Jacob Jayson was injured in an automobile accident in 1931 and sustained a fractured skull. His accident affected his' hearing and memory. After the death of his wife, he became an old and infirm man completely under the domination of his avaricious daughter. His hands trembled; he could get about only with difficulty. She had access to all his papers and documents, even his safe deposit box. She tried to induce him to make a will in her favor at a time when he could not comprehend what he was doing. When he transacted any business the respondent was always present. She had forced other members of the family out of the house so that her domination would be complete. She read his letters, prepared the answers and in every way guided his every action.

Appellants contend that the Bradley Beach conveyance was an advancement by Jacob Jayson to his daughter and the value thereof should be deducted from her share of his estate in the event of partition.

The law pertaining to advancements of real estate and construing a similar provision to N. J. S. A. 3:3—3 is to be found in Vice-Chancellor Bergen’s opinion in Schlicher v. Keeler, affirmed, 73 N. J. Eq. 738. He said: “A conveyance of land in consideration of natural love and affection, for a nominal consideration, by a parent to a child, has been held to be an advancement, within our state, unless a contrary intention is made to appear, and the presumption arising from such condition is overcome. Speer v. Speer, 14 N. J. Eq. 240; Hattersley v. Bisset, 51 N. J. Eq. 597-601; 29 Atl. Rep. 187; 40 A. M. St. Rep. 532." See, also, N. J. S. A. 3:3-3.

This presumption was not overcome and the appellants were entitled to take proofs as to value.

As to the two Newark properties conveyed by Flora Jayson to her daughter, the only consideration to support them is the recital of the natural love and affection of the parent. The proofs, however, that these properties were held in trust for Jacob Jayson are not so satisfying as to justify the conclusion that the advancement was made by him and the value thereof should be deducted from respondent’s share of his estate.

Suffice it to say that the respondent was proved, by overwhelming evidence, to have been an avaricious, self-seeking woman who had no source of income save on the hypothesis that her brothers and sisters had created the nucleus of her fortune by gifts over a long period of years. This, however, was but a comparatively small amount of money — perhaps a little more than $5,000. Using her position of dominance, she obtained moneys from her father which she used to purchase properties. She obtained conveyances of other properties from him. During the period from her mother’s' death till her father’s death she used eveiy opportunity to acquire his property to his impoverishment and that of his heirs. To prevent profit from such unlawful conduct a trust arises in equity.

The case should have been remanded to the Court of Chancery for such accounting as might be necessary.

Mr. Justices Parker, Heher, Perskie 'and Colie join me in this dissent.

For affirmance — Case,- Donges, Porter, Dear, Wells, Baeeerty, Hague, Thompson, JJ. 8.

For reversal — Parker, Bodine, Hbher, Pbeskie, Colie, JJ. O.

For modification — The Chiee-Justice. 1.  