
    Emma L. Shaw, Resp’t, v. Winfield S. Shaw, App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    1. Fk add.
    Testimony of defendant that be took plaintiff’s money without intending to hold it for her benefit .taken in connection with testimony of other witnesses that it was given him for that purpose, is sufficient to establish fraud.
    
      2. Same — Transfers of property — Confidential relation.
    Defendant claimed that before their wedding plaintiff gave him her money without any trust, and in consideration of the marriage; that he had no affection for her and refused to marry her on any terms except an absolute conveyance of all her property. She was young and did not consult her friends, and her letters showed an infatuation which might, impel her to give him all her estate without conditions. Held, that the conveyance should not be allowed to stand.
    Appeal from judgment of special term in' favor of plaintiff, adjudging that defendant became the trustee of plaintiff with respect to the sum of $14,680.42 received by him from her in July, 1887, and requiring him to account therefor; declaring certain real estate purchased with such money to be the property of plaintiff, and adjudging a conveyance thereof to her, and also the delivery of certain furniture.
    The parties are husband and wife and the money was delivered to defendant two or three days before the marriage.
    The defendant alleges by his answer that this money was paid to him in consideration that he would marry the plaintiff, and that the marriage was made pursuant to this bargain. The plaintiff, on the other hand, insists that the defendant obtained the money from her by acts which constitute legal fraud, and under a promise to hold and invest the same for her.
    
      A. Britton Havens, for app’lt; Abner 0. Thomas, for resp’t
   Pratt, J.

Three witnesses testify that defendant received, plaintiff’s funds upon a trust to invest them for her benefit

The court below credited the testimony, and his decree requiring defendant to account must be sustained.

The defendant strenuously insists that the complaint charges him with fraudulently obtaining the plaintiff’s money, and claims that the judgment against him is erroneous for the reason that no fraud is shown. If his construction of the complaint is correct, his own testimony that he took plaintiff’s money without intending to hold it for her benefit, taken in connection with the testimony of the witnesses that it was given him for that purpose, seems sufficiently to establish fraud.

Defendant testified that plaintiff gave him her money three days before their wedding without any trust for her benefit, and in consideration of the marriage. He says-he had no affection for the plaintiff and refused to marry her upon any other terms than an absolute conveyance to him of all her property free from any trust, in her favor.

She did not consult her friends upon the subject, nor have legal advice. She had recently passed the age of twenty-one years. Defendant had some experience as a business man. The letters written by plaintiff to defendant and by him put in evidence abundantly establish an infatuation upon her part which might impel her to give plaintiff all her estate free from any conditions.

Upon the facts as stated by defendant we fail to see how the transfer to him of the property of his intended wife could be sustained.

Cooke v. Lamotte, 15 Beavan, 234, holds that where any relation exists by virtue of which one person is able to exercise dominion over another, the court will annul a transaction under which a person possessing that power takes a benefit unless he can show the transaction was a righteous one. Page v. Horne, 11 Beavan, 227, 235, was a case where a woman a day before marriage revoked a marriage settlement in consequence of which all her personal property vested in her husband upon the marriage. Upon the trial the wife testified in favor of her husband, but the court held the revocation void.

In Baker v. Loader, L. R., 16 Eq., 49, an old lady employed a solicitor to prepare deeds by which she conveyed all her property to a third party in consideration of an agreement to be supported •for life. The court set aside the deeds aud made the solicitor pay the costs, to teach solicitors that they must not encourage people in such acts of folly.

In Taylor v. Taylor, 8 How., U. S., 183, a daughter who had received a legacy made it over to her father, in order to put herself on an equality with the other children. That was set aside by her heirs after her death because she had no legal advice, and because the court inferred there must have been undue influence or she would not have done so unreasonable a thing.

Were the facts in this case such as the defendant alleges them to be, the conveyance to the defendant could not stand.

Judgment affirmed, with costs.

Barnard, P, J., concurs.  