
    LEWIS E. DAVENPORT AND CORNELIUS CRAWFORD, JR. ADMINISTRATORS, &c., OF CALVIN COOK, DECEASED, v. HENRY COLE AND OTHERS.
    An improvident agreement, made for a consideration grossly inadequate, by one of great imbecility of mind, with another whose position in relation to him conferred undue influence and control over him, will be set aside.
    The bill in this case was filed on the 27th of June, 1845, by the administrators, &c., of Calvin Cook, late of Bergen county. It states that Cook died intestate, on the 20th of May, 1845, owning and being entitled to considerable personal estate. That, on the 19th of June, 1845, administration of his personal estate was granted to the complainants. That the complainants have been informed and believe that Cook, in his lifetime, was indebted to the estate of John Robinson, late of the city of New York, in a sum exceeding $2000. That the said Robinson died intestate, in 1822, in New York; and that said Cook, with Elizabeth Robinson, widow of said John Robinson, and sister of said Cook, administered on the estate of said J. Robinson, deceased, in New York; and that Cook became possessed of the personal estate of said Robinson to an amount, exceeding $2000, which remained in his hands unaccounted for until his death. That on the 25th of February, 1834, an order was made by the surrogate of New York, requiring the said Cook and Elizabeth Robinson to account, which they neglected to do, and a further order was thereupon made that the administrators’ bond given by them should be prosecuted. That Cook, having information of the Last order, thereupon left New York, and returned to New Jersey, where he resided, and continued to reside, until his death.
    That the complainants are advised by their counsel, and believe and insist that, by means of the proceedings aforesaid, the said administration bond was forfeited, and that the same is now due, and is, and has been from the said year 1834 until the death of said Cook, a subsisting demand against him, and now constitutes a legal demand against his estate.
    That the complainants are informed, believe, and charge that said Cook was a man of large property, having personal estate to a great amount; that the same was variously estimated, by persons acquainted with his estate and circumstances, at from $10,000 to $50,000. That the.complainants believe and charge that it was of the value of $15,000 and upwards. That he was never married, and left no near kin, except two nieces, children of the said Elizabeth Robinson, who are his only heirs-at-law, the oldest of which, Susan EL, is now the wife of the complainant Lewis E. Davenport, and the youngest of which, Sarah E., is now the wife of the complainant Cornelius Crawford, Jr.
    That for several years before August, 1841, Cook was subject to occasional despondency of temperament, and exhibited occasional mental aberrations, and was deranged in his intellect.
    That about that time, and before the 1st of November, 1841, his mind became entirely enfeebled, and he was deprived of his reason and understanding, so as to be incapable of governing and taking care of himself, and wholly incompetent to manage his pecuniary affairs.
    That said Cook was very penurious and miserly in his habits, and scarcely allowed himself the ordinary comforts of life, either in clothing or provisions. That for some time previous to the 1st of August, 1841, he was in the habit of wandering about the country, stopping at houses, the occupants of which were strangers to him, and soliciting them to take him in. That he sometimes slept in barns. That some time in August, 1841, the said Cook, by some means unknown to the complainants, found his way to the house of Henry Cole, the defendant, then and now residing in Saddle River township, in the county of Bergen, in whose possession the said Cook was afterwards found. That Cook and the said Cole, and the family of said Cole, had never, before that time, been at all acquainted, but were entire strangers to each other. That Cole, for some reason, then took Cook into his house, and Cook continued to reside with said Cole and his family until he (Cook) died. That after Cook came to the house of Cole, as aforesaid, he was usually kept in the house, or, if he went out, did not, at any time, go beyond the yard or enclosure of said Cole, and, having no near relations in the country, except the wife of the complainant Crawford, and she living in the State of New York, very few persons called to see him, and very little was known of his situation.
    That said Crawford’s wife, having learned that her uncle — the said Cook — was at the house of said Cole, went there to see him, and was informed by said Cole, or his family, that he did not go out of the room in which he was kept, and that the family did not wish him to see any of his friends or acquaintances, for he acted so bad that they could not control him; and she was permitted to have but a momentary interview with him. That in this interview he did not, apparently, recognise her, although he had, before, known her most intimately.
    That the said Sarah E. Crawford, at that time, proposed to take said Cook to live with her, and offered to do so, but Cole declined to allow it, saying that he had undertaken or agreed to take care of him during his life, or words to that effect.
    That when Cook came to the house and possession of Cole, as aforesaid, there were large sums of money due him from various persons in New York and New Jersey. That, among others, there was due to him from the commercial house and firm of Richard S. Williams & Co., of the city of New York, a sum exceeding $8000; from Walter Kirkpatrick, of New Jersey, exceeding, with interest, $2000, for which Cook held the note or notes of said Kirkpatrick. That there was then also due to Cook from Andrew B. Cobb, of Morris county, New Jersey, $1000 and upwards, for which Cook held said Cobb’s note or bond, or the note or bond of said Cobb with some other person or persons joint promissors or co-obligors with him. And that the complainants have reason to believe, and do believe, that other debts of considerable amount were then due and owing to Cook, for which he was then in possession of securities or evidences of indebtedness, but that the complainants, for want of evidence, are not now able to specify the same.
    That when Cook found his way to the house, and came under the control of Cole, as aforesaid, besides the securities for money and evidences of indebtedness aforesaid, he had in his possession a considerable sum of money, more than $150, and, as complainants believe, $300.
    The complainants charge, that on or before the time when Cook came to Cole’s, as aforesaid, Cole ascertained that Cook possessed abundant means to pay for the expenses of his maintenance ; and that, at, that time, or shortly afterwards, he discovered that Cook not only possessed such means, but also that he was a man of large estate in money, and securities for money, and, considering the state of imbecility and derangement of mind under which Cook was evidently laboring, conceived the design of fraudulently dispossessing him of his property and appropriating it to his own use; that in pursuance of such fraudulent design, Cole, a short time after he got possession and control of the person of Cook, as aforesaid, went to the said Richard S. Williams & Co., and having, or pretending to have, some assignment or authority to collect said debt due from them to Cook, and being in possession of their said note for the same, the more effectually to carry out his said design, induced the said Williams & Co. to change the security for the said defendant, and actually gave up to them the said note, and received for the amount of principal and interest due on it, and for other money, a bond and mortgage made to the said Cole, in his own name, and for his own benefit; and the complainants are informed that the said bond and mortgage are for the sum of $11,000 ; and they believe and charge that the same were given for the amount due on the said note of Williams & Go., and for other moneys-which Cole had received belonging to said Cook, or which was-due from said Williams & Co. to said Cook.
    That Cole, further in pursuance and execution of his said fraudulent design, after he got possession and control of the person of Cook, but at what particular time the complainants are ignorant, having, by some means unknown to the complainants, got possession of said note or bond given by said Cobb to said Cook, and pretending to be the owner thereof by an-assignment of the same, or to have authority from Cook to collect or seltle the same, induced Cobb to take up the same, and, in- lieu thereof, to execute and deliver to him, Cole, a new bond, or other security, in his own name, and for his own use, for the amount due thereon, or the greater part thereof, but the complainants are ignorant of the date of the said last-mentioned bond or security.
    That Cole, further in pursuance of his said fraudulent design, having, by some means unknown- to the complainants, obtained possession of the said notes of W. Kirkpatrick, held by Cook as aforesaid, called on Hugh Kirkpatrick, the administrator of said W. Kirkpatrick, who was then dead, and represented himself to be the owner of said notes by pretended assignments or endorsements thereof from Cook, and demanded payment thereof; and that an arrangement was then made, as the complainants are informed, by which Cole received, in his own name, and for his -own use, in part payment of the principal and interest due on said notes, an assignment of a bond made by one Samuel S. Doty, of Somerset county, New Jersey, to said Hugh Kirkpatrick, administrator as aforesaid, dated April 24th, 1843, conditioned for the payment of $2000, with interest, and also an assignment in his own name, of a mortgage given to secure said bond, by said.Doty to said administrator, and for the residue of the principal and interest due on said notes, which the complainants charge amounts to $800 and upwards, Cole received the money from said administrator, or some other security.
    The complainants charge that Cole, when he made the said several arrangements with Williams & Co., Cobb and Kirkpatrick, and the said securities for money due to said Cook were changed, as aforesaid, received, Rom all or some of them, payments on account of principal and interest, or both, but of the amount the complainants are ignorant and pray a discovery.
    That the complainants have reason to believe that Cook, when he carne into the custody and under the control of Cole, as aforesaid, was possessed of money and securities for money other than those before mentioned, and they pray a discovery thereof.
    That while Cook was in the custody and under the control of Cole, as aforesaid, he was afflicted with a fit of apoplexy or palsy, terminating in partial paralysis, and that Cook was not, at any time after he came to the hands of Cole, of sound and disposing mind, or of sufficient capacity to manage his pecuniary affairs, or to transact any business whatever; and that any agreement made by him with Cole touching his property, or any authority given-by him touching the same, must have been obtained by Cole from him by reason of his imbecility and ineompeteney to do business, and were fraudulent and void.
    The complainants are informed and believe that shortly be • fore the death of Cook, and on or about June 9th, 1845, a person who was formerly acquainted with Cook, and resided in the same neighborhood with him, called at the house of Cole for the purpose of seeing Cook, and inquiring into his condition and health. That Cole was absent. That in answer to inquiries of , the person so calling, the wife of Cole said that since Cook had been there he had for part of the time been deranged, and that sometimes he did not appear to know anything; and that he was then an idiot; that he was well, but did not pretend to go out; that it disturbed him so much, and made him so ugly, to see any of his acquaintances or other persons, that Mr. Cole had given orders that no person should be allowed to see him. That the said person so calling, though he represented himself to be an old acquaintance, and was. anxious to see Cook, was not allowed to see him.
    That immediately after they were appointed administrators, the complainants called on Cole for the purpose of inquiring after the estate of Cook and obtaining possession of it. That in answer to questions then put to Cole, he stated that Cook came to his house the first week in August, 1841 ; that he then kept a tavern; that Cook was a perfect stranger to him, and in a miserable condition; that he was ragged and dirty, and asked for something to eat. That something was got for him; that he refused to eat it, and wanted some other kind of victuals, whioh was got for him ; and that he stayed with him, Cole, from that time until his death, and had never been further from the house than the barn. That before he had been there a year, he, Cole,, made a contract with him to keep'him during his life; that when Cook came to his house, he came direct from Lawyer Gifford. ■He said he knew nothing of Cook’s papers, property, or effects ; he believed if Lawyer Kirkpartick had lived he could have told something about it, as he understood he had done his business ; that he, Cole, had overhauled all Cook’s papers, and had found nothing but some old receipts. That it being thereupon stated to Cole that it was understood that Cook, shortly before August, 1841, held the notes of W. Kirkpatrick, which he was in the habit of carrying about in his hat, Cole answered that he knew nothing about said Kirkpatrick’s owing Cook any money; that he had never seen any papers of Cook of any value or account whatever. That the inquiry was then put to Cole whether he knew of Cook’s having any property or effects in New York, and, in answer, he stated that he never could find that he had anything there; that he had heard he owned some houses in the city of New York, and that he, Cole, had been to New York and examined the records for fifty years back, and could not find that he owned any real estate there. And it being then further stated to Cole that it seemed strange, seeing that Cook had been reported to be a man of property and worth from $30,000 to $50-000, that he should have left no estate or property. Cole, thereupon said that if Cook had not have had a stroke of the palsy before he came to his house, he believed he would have been able to have informed him, Cole, about his affairs, and where his money and papers were; that Cook had one stroke of the palsy before he came to his house, and one afterwards, which wholly deprived him of his speech. Aud the complainant Davenport having said to Cole that if Cook had no property he would get nothing for the trouble he had had with him, which must have been considerable, Cole answered that he had received enough to compensate him for his trouble, without specifying from what source or in what manner.
    That the complainants are informed, believe, and charge that Cole now holds the said mortgage so as aforesaid given to him for the debt due Cook in New York, and also the bond or oiher security received by him from Cobb, as aforesaid, and also the bond and mortgage received by him, by assignment from Hugh Kirkpatrick, administrator of W. Kirkpatrick ; and that lie has collected and received the interest on the same since they came to his hands.
    That said Cobb and Hugh Kirkpatrick, when they made said settlements or arrangements with Cole for the debts due from them respectively, to Cook, well knew, or had good reason to believe, that Cook was of unsound mind, and incapable of transacting business.
    That the complainants have obtained from the surrogate of New York administration on the estate of Cook, and have filed a bill in the Court of Chancery of New York, and obtained an injunction restraining Cole from collecting or receiving the said debt due from Williams & Co., and restraining them from paying it to -Cole.
    That, as administrators of Cook, they have applied to Cole for jl statement and account of the estate of Cook that has come to .his knowledge, hands, or possession.
    The bill prays that Cole may set forth what money, securities for money, or effects of Cook were delivered to him by Cook in his lifetime, or have, in any way, before or since Cook’s death, come to his possession, &o. And that Cole may be decreed to assign to the complainants the several securities received by him for moneys clue Cook in this state, as aforesaid, and to deliver to the complainants all notes, bonds, goods, and effects of Cook in his possession or under his control. And that Cole may bo snjoined from collecting or receiving the moneys due on or secured by the note or bond given by Cobb, as aforesaid, or the bond and mortgage given by said Doty, as aforesaid, or any other moneys due Cook at the time of his death, and from assigning said note or bond and bond and mortgage. And that Cobb and Doty may be enjoined from paying*Cole the moneys mentioned in said note or bond and bond and mortgage, and from doing any other act to prejudice the rights and interests of the complainants in the premises.
    The injunction prayed was granted.
    Cole answered the bill. He admits the death of Cook, on the 20th May, 1845, and says he does not know, nor has he been informed, and cannot state as to his belief or otherwise, whether or not Cook, at the time of his death, was owner of and entitled to considerable personal estate in New Jersey, or of any effects other than as in the answer is after stated. That he knows nothing of Cook’s indebtedness to the estate of Robinson, but if there was any amount due from Cook to that estate, he has been informed and believes it has been more than fully paid to the next of kin of Robinson.
    He believes it to be true, and therefore admits that Cook was a man of large property, and had personal estate at the time this defendant became acquainted with him, to the amount of $10,000 and not exceeding $11,000; and, as he is informed and believe*, Cook had owned real estate to the amount of rising $5000 in New Jersey.
    He believes that the wives of the complainants are the next of kin to Cook and his heirs-at-law.
    He denies that, during the period of his acquaintance and dealing with Cook, Cook was subject to occasional despondency of temperament or derangement of intellect, or exhibited any mental aberration. On the contrary, he says that, though Cook was affected by a disease which was called St. Vitus’ dance, which somewhat impaired the use of his limbs, and rendered his appearance singular, and interrupted his speech, such disease does not, by the course of the disease, and did not in Cook, induce any aberration of mind ; and that, during all the time for that purpose mentioned in the bill, the mind of Cook was sound, and capable of apprehending whatever was presented to it in a rational manner; that he was in the constant habit of inquiring into hi3 affairs during the whole of that period; and though his complaint greatly impaired the use of his limbs in walking, and in a considerable degree his speech, he continued able to write, and thereby to explain what he could not do orally; to make calculations and to give directions in receiving and making conveyances of property, and in his usual pecuniary affairs, and was fully competent to manage and control his own pecuniary interests and property.
    He believes it to be true that Cook was very penurious and miserly in his habits, but whether he ever denied himself the ordinary comforts of life, in clothing rir provision, from any such cause, he is not informed, nor does he know.
    He believes it to be true that, some time previous to August 1st, 1841, Cook was in the habit of traveling about the country, but only in pursuit of his own business, and stopping at houses, soliciting the inhabitants to take him in, and sometimes sleeping in barns; but whether the occupants of such houses were strangers to Cook he is not informed, but leaves it for such proof, &c.
    He says that on or about August 20th, 1841, Cook came to his house; he then resided in Saddle River township, Bergen county; that he had no previous acquaintance with Cook, having never before heard of him ; and that Cook continued to live with him until his death; that while Cook lived with this defendant he was permitted to go and come as he pleased, though he never went beyond the barn, or off the premises. He denies that Cook was in any manner restricted in going or coming from or to his room, or any part of the neighborhood.
    He-denies that very little was known of the situation of Cook, but says that the residence of Cock with him was, during the whole period, open, public and notorious, and in no wise concealed, nor sought to be concealed, from the complainants or their wives, or the acquaintances of Cook, or any other person.
    He admits that when Cook came to his house there were the following sums of money due him from persons in New York and New Jersey, viz.: a note of R. S. Williams & Co., of New York, for $8545, dated June 1st, 1841, payable on demand; two notes of Walter Kirkpatrick, one dated June 16th, 1834, payable on or before June 26th, 1840, for $1805, with interest from June 26th, then past, the interest thereon being endorsed as paid to July 3d, 1838; the other dated June 21st, 1838, for $108.30, payable one year after date, with interest, on which one year’s interest was endorsed paid. But he denies that there was ever known or discovered by him in the possession of Cook any note, bond or other evidence of indebtedness by Andrew B. Cobb, or of any other person jointly with him, to Cook, or for his use, nor were there any securities or evidence of indebtedness of said Cook, other than those before mentioned.
    He admits that, at the time last mentioned, Cook had in his possession $148 in bank bills, and not above that amount in bills and specie.
    He denies that he ever took possession of Cook, as alleged in the bill, but admits he entertained him as landlord, and, after the making of the agreement after stated, took care of and provided for him in all things necessary or proper for his comfort, until his death.
    . He admits that when Cook came to his house, he was in a ragged, dirty and apparently, destitute situation ; that he applied to this defendant for food, which this defendant offered him from the table which supplied his family ; that Cook refused to partake of what was thus offered, and desired to have such food as he particularized, which was then procured for him ; that Cook proposed'to remain, and did remain, at his house as a lodger and boarder, defendant then keeping public house, and of his own free will, and without any influence or request by this defendant, continued to board with this defendant until the making of the agreement for his maintenance during life, hereinafter mentioned, and paid for his board agreeably to the terms stipulated between him and this defendant.
    He denies that at any period he, or any person, to his knowledge, ever imposed on Cook any species of restraint or control, or that Cook was in any manner kept or concealed.
    He says that after Cook had been some few days boarding with him, as before stated, on or about August 25th, 1841, Cook executed and delivered to him a power of attorney, under his hand and seal, in the presence of a respectable freeholder of Bergen, for the purpose of authorizing this defendant to procure sundry articles of clothing which he had left at the house of one Luke Voorhees, and for other purposes therein expressed, which power is ready to be produced and shown to the complainants.
    He admits that, during the time Cook lived with him, he, Cook, was affected with a fit of palsy, which did not happen until after he had resided with this defendant nearly two years, but he has no knowledge or belief, nor has he been informed, that Cook was ever before affected with a stroke of the palsy; and he denies that Cook was, previous to the said attack of the palsy and after he came to his house, or so far as he has ever heard or known, at any previous time, of unsound and not of disposing mind or of sufficient capacity to manage his pecuniary affairs, but says that at the time and after the said power of attorney was executed and delivered, Cook gave all necessary directions, and a memorandum and schedule of the personal property and effects he wished this defendant to procure for him, in his own handwriting and with all necessary clearness, accuracy, and intelligence, which memorandum and schedule, signed with the name of Cook, is in his possession, &c.
    That after Cook had lived at his house about four months he expressed himself much pleased with the accommodation and treatment ho had received from this defendant and his family, and, after declaring to this defendant his desire to make an arrangement which should procure for himself a comfortable support during his life, proposed to this defendant to undertake and agree, for the consideration hereinafter mentioned, to support him for the remainder of his life, at his, this defendant’s, expense. That the offer so made by Cook, being an inducement to the making such agreement, this defendant, after several days’ consideration of the subject, consented thereto, and thereupon called and counseled with George Cassedy, Esq.; and further, on or about December 18th, 1841, applied to Daniel Barkalow, Esq., counselor-at-law, at Paterson, under whose advice and direction articles of agreement were made and entered into, dated December 18th, 1841, between Cook and this defendant, which articles witnessed that Cook, for and in consideration of $1 to him paid, and of the covenants and agreements therein contained by this defendant to be kept and performed, did assign, transfer, and set over to this defendant, his executors, <fee., a certain note for $8545, made by R. S. Williams & Co., of New York, merchants, payable to said Calvin Cook on demand, and dated June 1st, 1841, and did thereby constitute and appoint this defenclant his lawful attorney, irrevocable, for him, this defendant, but in the name of him, the said Cook, to demand, receive, sue for, and recover of the said R. S. Williams & Co. the said sum of money in the said note mentioned, and all interest due thereon, and to compound for the same, and for any money received thereon in the name of him, the said Cook, to give receipts, &o., and in general to do all and every act or thing that he, Cook, might or could do if that assignment had not been made, and if personally present and acting in the premises, thereby ratifying, &c. And this defendant, in consideration of the premises, did thereby covenant, &c., with the said Cook, that he, this defendant, his executors, administrators, or assigns, should and would, for and during the natural life of the said Cook, furnish and provide him with good and sufficient board and lodging, in all respects as good as that then and theretofore furnished to Cook by this defendant, and, also, with good and sufficient wearing apparel, of a kind and quality in all respects equal to that before worn and used by him, the said Cook; and also do and procure to be done, in a good, neat, and proper manner, all the washing, ironing, and mending of said Cook; and, in case of sickness, provide competent and skillful medical attendance, and necessary and proper medicine, and also proper nursing and attention during such sickness, and furnish said Cook, for his own separate use, with a room, with good and convenient furniture, in the house of him, this defendant, wherever he might reside; and, in general, do and provide all those things which might be necessary to enable said Cook to live comfortably; all which things should be done and furnished at the cost, expense, and trouble of him, this defendant, his executors, administrators or assigns. In witness whereof, the said parties did thereunto set their hands and seals the day and year above written; which said articles of agreement were attested by John P. Outwater, and on the 11th of March, 1843, duly proved by said Outwater, before Richard R. Paulison, one of the masters in chancery, as by a certificate thereof appended to said articles may appear.
    That in pursuance of the advice of said counsel, the said articles of agreement were deposited and received in the clerk’s office of Bergen, on the 11th of March, 1843, and recorded in book, &c.
    He says that the firm of R. S. Williams & Co. consisted of Thomas Williams, Jr., Richard S. Williams and Ellis Potter; and he denies that it was a short time after (as is alleged in the bill) Cook came to live with him that he went to R. S. Williams & Co., pretending, as is alleged in the bill, to have the assignment of said note, but says that when, and not until after Cook proposed making the agreement as hereinbefore set forth, this defendant, for his own protection and security, called on said firm of R. S. Williams & Co. to ascertain if the note made by said firm to Cook was genuine and due from them, and informed them of the intention of Cook, and, after being satisfied thereof, this defendant returned home, and the agreement aforesaid was then executed by this defendant and said Cook; and, subsequent thereto, and on or about March, 1842, this defendant applied to said firm for some security for the principal and interest due on said note, when Thomas Williams, Jr., one of said firm, proposed first to call on Cook at this defendant’s house, to ascertain whether said note had actually been transferred to this defendant by any such arrangement; and, in about said March, 1842, the said Thomas called accordingly on said Cook, and having satisfied himself that Cook had freely and in a legal and competent manner entered into the said agreement and made such transfer, the said firm did agree to give such further security to this defendant; and after paying to this defendant $545, or thereabouts, with interest due thereon from the first of June preceding, the said firm did, on or about March 19th, 1842, execute and deliver to this defendant their bond of that date, under their respective hands and seals, conditioned for the payment of $8000 in one year from the 1st of April then next ensuing, with interest semi-annually, and the said Thomas, one of the said firm, gave his mortgage therefor, of that date, to this defendant, on certain leased premises in the city of New York, (describing them.) And, on the receipt of the said bond and mortgage, this defendant gave up the said note of said firm. And he denies that the said bond and mortgage were given for other moneys than were due, as aforesaid, on said note. He says he has received on the said bond and mortgage, at different times, $1000 in ,the whole.
    He says he has no knowledge or information of any note or bond given by Andrew B. Cobb to Cook or for his use, except from the bill, and denies any negotiation for changing securities with said Cobb as alleged in the bill.
    He admits he called on H. Kirkpatrick, administrator, &o., of W. Kirkpatrick, deceased, and represented himself to be the owner of the two notes given by said deceased to Cook; but he denies that there was any pretended assignment of said notes from Cook to him.
    He says that, when Cook came to live with him, he was the owner of a house occupied by him, and engaged in a very profitable business, and that his said property was justly valued at $6000. That, after the said agreement was entered into between him and Cook, he found it inconvenient, by reason of the personal care and attention to be devoted to Cook, according to said agreement, to reside at the house he occupied when Cook came to him, and he sold his said house at a less price than he would have done at any other time and under any other circumstances, and removed to another house, not far distant, in the same neighborhood, when it became necessary to build an additional room, expressly for the better accommodation and comfort of Cook and the better attendance on him by this defendant, which always, during Cook’s continuance with him, he devoted to him personally, in every service he required for his convenience and comfort. That Cook, after living with him for nearly two years, and expressing himself satisfied and pleased with the treatment he had received, stated that he confided in the arrangement before mentioned as to him, Cook, for his life; that he had no relations who exhibited any care for or had any feeling for him, but had neglected him when he most required their attention ; that he had become attached to this defendant and his family ; proposed to this defendant to take an assignment of the said notes, on or about August 19th, 1842; and thereupon caused an assignment to be made, bearing that date, assigning to this defendant the said two notes drawn by W. Kirkpatrick, with all necessary power to recover' the same j which assignment was duly attested by John E. Vanderbylandt, and was, on the 10th of March, 1843, proved by him before Cornelius Van Wageuen, a judge of the Common Pleas of Bergen, and was, on the 11th of said March, recorded in the clerk’s office of Bergen.
    He says (hat an arrangement was made between said JEL Kirkpatrick and him; that he received, in his own name and for his own use, $300, or thereabouts, and for the balance of said notes the said H. Kirkpatrick, on the 22d of May, 1843, assigned to this defendant, by an assignment of that, date, a bond, dated April 24th, 1843, made by Samuel S. Doty to said H. Kirkpatrick, administrator as aforesaid, conditioned for the payment of $2000, with interest, in two years, and a mortgage, of the same date, executed by said Doty and his wife, to secure the said bond, on a certain tract of land, (describing it,) on which said bond endorsements have been made of interest received by this defendant to April 24th, 1845.
    lie denies that when said arrangement was made with said Hugh Kirkpatrick, the said Hugh Kirkpatrick knew, or had reason to believe that Cook was unsound in mind, and incapable of transacting business ; but, on the contrary, that he, the said Hugh, was satisfied of the competency of said Cook in law to understand the nature of such a transaction, and to approve thereof.
    He denies that he ever entertained any determination fraudulently to dispossess Cook of all or any part of his property, or that, with any such purpose, he ever applied to said Williams & Co., or Samuel Doty, to change the securities given by them respectively to Cook, or to have them, or either of them, or any part thereof, assigned to him, from any other inducement, or for any other object than as in his answer is before stated.
    He admits that Sarah E. Crawford called at his house and was informed that Cook did not then go out of his room; that the time when she called was about November, 1842; but he denies that he or any of his family informed her that the family did not wish Cook to see any of his friends or acquaintances, or that he acted so bad that he could not be controlled ; or that she was permitted to see Cook but momentarily; but says that said Sarah had every facility offered her for seeing Cook, and did see him at that time as often and as freely as she pleased, and had such conversation with him as she thought proper, without any impediment, interruption or hindrance by this defendant or any other person; and that said Sarah stayed at this defendant’s house two days and two nights.
    He admits that said Sarah offered to take Cook to live with her, and that this defendant declined such offer, and then informed her of the agreement made between Cook and him.
    He says that, having stated to said Sarah that be had bound himself, as hereinbefore stated, to keep Cook during his life, she expressed herself pleased.
    He says he knows not and cannot remember that the complainant Davenport called on him immediately after the alleged taking out of letters of administration, for the purpose of inquiring into the estate of Cook and taking possession thereof, as stated in the bill, other than he is informed thereby; but he says that if Davenport did call, this defendant was not informed of the name of the person so calling and of those who accompanied him ; but he says that a person, who he afterwards understood was named Benjamin Crane, called, about the time for that purpose mentioned in the bill, with two persons, and used the expression “ we have come as administrators of Calvin Cook; ” but said Crane made no introduction of the persons, or either of them, by name, nor did he or either of the persons exhibit any documents whatever. But after Crane had left this defendant’s house, this defendant first learned the name of said Crane from this defendant’s wife, who had seen him when he had communi ■ cated to her that he, Crane, had made a settlement with Cook, about a year previous, and paid Cook a sum amounting to $700, and that during the interview with said Crane and the other persons in his company, by the hill alleged to be administrators of Cook, this defendant referred them to said Crane, not knowing that he was present, and not knowing him by name or person, for information respecting Cook’s property, as, from his own statement as aforesaid, most competent, as this defendant presumed, from long acquaintance with Cook, and having transacted business with him, to give such information.
    He says he has no recollection as to the several matters of .conversation with said persons alleged in the bill, or any questions touching or relating to the same, or statements made to this defendant as to the said Cook’s being a man of property, at the time last mentioned and referred to, and therefore cannot admit or deny the truth of such conversation.
    He denies that, shortly after the death of Cook, the said Crane called at his house in his absence, as alleged in the bill, on the 9th of June, 1845, but says he is informed and believes that a person answering the description of said Crane called on some day previous to the death of Cook, and desired to see Cook j that Cook was unwilling at any time to see visitors, unless they were invited by himself; that often, when he did request the company of persons, after their being with him a short time, he would abruptly place his hand on them and move them towards the door, desiring them to go, and exhibiting at such times, if any opposition was made, a great degree of nervous excitement, whilst he was perfectly conscious of his situation, and would be composed after the departure of such visitors.
    That the conduct of Crane was so mysterious, claiming no affinity to Cook, having no ostensible business with him, and being an utter stranger, and showing no official cause for claiming such admittance, and in the absence of her said husband, and under the peculiar disposition and habits of Cook with respect to the introduction of visitors, as before stated, the wife of this defendant. refused to admit the said visitor; and this defendant is not informed, and therefore cannot say, whether said Crane had such conversation as is mentioned in the bill with the wife of this defendant, and therefore cannot admit or deny the same.
    He says it was by the express request, and in pursuance of an arrangement with the complainant Crawford, that this defend^ ant went to the city of New York to learn, if possible, whether there was any real property in that city belonging to Cook, and the situation thereof. That Crawford had informed him that Cook was the owner of one or more houses in Cherry street, New York, and arranged to meet this defendant in New York, for the purpose of looking after said property. That, in pursuance of such arrangement, he went to New York to meet Crawford, and made a very brief examination of the records; but Crawford failed to meet him ; and this defendant found no such property in the name of Cook.
    He admits the fact stated in the bill, but not as having expressly stated it at any conversation, that he examined the records in the city of New York, some time in the spring of 1844, for real property that might be standing in Cook’s name, for the period stated in the bill, but found none standing in the name of Cook or for his use. But he is informed and believes that Cook was possessed of and entitled to in his own right, certain real estate in Morris county, New Jersey, before he came to this defendant’s house to reside. That, by a search in the clerk’s office of that county which he has caused to be made, it appears that Cook has conveyed, for the nominal sum of $1, to the said Davenport, by deed dated March 7th, 1831, a tract of land in the township of Hanover, in said county, containing 10 58-100 acres; and he also discovered on said records another deed from said Cook to said Davenport, for the nominal sum of $1, dated March —, in the same year, for certain other premises containing 26 1-2 acres; and also another deed for lands in said county, to the said Sarah Robertson, before her marriage with the complainant Crawford, for the nominal consideration of $1, for three tracts of land — one of 33 54-100 acres; one of 11 70-100 acres; and one of 7 7-100 acres, recorded May 14th, 1831.
    That it further appears by the said records, that the real estate so conveyed by Cook to Davenport, has been conveyed away by him for a sum or sums amounting to more than $2000, and that two of the lots so conveyed by Cook to the said Sarah, containing 16 acres, or thereabouts, have been since conveyed away by her for $500, or thereabouts.
    He denies that he has at any time become possessed of any money, or securities of any description, of said Cook, other than those before mentioned. He believes it to be true that the complainants have obtained administration of his estate, and filed a bill in chaucery in New York, and obtained an injunction, as stated in the bill.
    He denies that the complainants, as administrators of Cook, have .ever applied to him for any statement or account of Cook’s effects, unless the application as hereinbefore stated to have been made by said Crane was for that purpose, when, as this defendant says, there was no such request made, or requirement iu words, for any such statement.
    fíe denies that he ever entertained any fraudulent design to dispossess Cook of any of his property, or that he ever .-.ought fco acquire the property, to possess it, or any part thereof, to his own use, or in any other manner, or for any other purpose or consideration than as has been hereinbefore stated to have been done at the suggestion of said Cook himself, at times and under circumstances that would have justified his, Cook’s, attention to his own business and concerns as legally and equitably as at any other period of his life.
    Much testimony was taken on both sides.
    
      Asa Whitehead and Samuel Sherwood, for the complainants.
    A iuaa may have a capacity to make a will, and yet insufficient for the management of of her business. 26 Wend. 306 ; 4 Cowen 207 ; 3 Wash. C. C. Rep. 386.
    If acts and circumstances are. to be considered, rather than the opinions of witnesses. 1 Green’s Ch. 13; 8 Mass. Rep, 371; 11 Ves. 11; 5 Johns. Ch. 158.
    Inadequacy of consideration, though not conclusive, is still to be regarded. 4 Cowen 208 ; 1 Bro. Ch. 1, 150, 563.
    In equity, fraud will be presumed irotn the position and circumstances of the parties. 4 Cowen 221; 4 Dessau. 684 ; 2 Ves. 155.
    Equity will set aside a deed by reason of influence of the parry obtaining it, and confidence in the party granting it. Shelford on Lunacy 317; 1 Ves., Sr., 379; 2 Atk. 279; 2 Ves. 259.
    
      A. Gifford, and JB. Williamson, for the defendant.
    They cited Shelford on Lunacy 36, 37, 39, 50; Cooper’s Med. Juris. 328; 3 P. Wms. 128; 2 South. Rep. 669; 5 Johns. Ch. 144; 3 Bro. Ch. 442; 2 Phil. Mo. 293; 1 Dow’s Parl. Cases 177; 2 Atk. 340; 19 Ves. 506.
   The Chancellor.

The testimony is so voluminous that I shall not attempt to give a statement of it in detail.

The pleadings and evidence show, satisfactorily, that Cook’s mind was greatly impaired ; that Cole’s position in reference tc him was such as to subject him to an undue influence and control over him by Cole; and that the consideration to be given by Cole for the property transferred to him by the agreement, was greatly inadequate. These three considerations united are sufficient to set aside the agreement.

Decree for complainants.  