
    Richard C. La Tourette, Appellant, v. Jennie B. La Tourette, Respondent.
    
      Transfers of property by a husband to his wife—proof required, where they are attached by the husband for fraud— no presumption of inequality.
    
    Conveyances made by á husband to his wife will be set aside on the. ground of fraud only where the proof thereof is clear and convincing beyond reasonable controversy. "
    No presumption of inequality arises from the relation of husband and wife.
    Appeal by the plaintiff, Richard C. La Tourette, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 2d day of October, 1899, upon the decision of the court rendered after a trial at the Queens County Special Term dismissing the complaint upon the merits.
    
      David Thornton, for the appellant.
    
      John R. Reid, for the respondent.
   Jenks, J.:

The plaintiff appeals from a judgment of the Special Term that dismissed the complaint on the merits. The suit is brought by a husband against his wife to avoid his transfers and conveyances to her on the ground of her fraud. The learned Special Term found that the transfers -and conveyances were voluntarily made, by. a competent person, who was not in duress and nqt subject to undue influence or to fraud. I think that the findings are with the weight of evidence, and that no errors were committed which warrant 'a reversal of the judgment.

The plaintiff was not armed with any presumption of inequality arising from the.- relation of the parties, like that arising in controversy between guardian and ward, trustee and cestui que trust, attorney and client, and the like, where controlling influence is an intendment. The law does not presume that the head of the family is dominated by the wife, and hence it follows in this case that the alleged fraud must be proved, and the question of fact must be determined by the circumstances of the case. (Cowee v. Cornell, 75 N. Y. 91, 101.)

On the other hand, upon proof of the due- execution of the instruments of transfer, their- validity and the competency of the. plaintiff were presumed. The conveyances of real estate can only be invalidated by evidence clear and .convincing beyond reasonable controversy.” (Taylor v. Taylor, 35 N. Y. St. Repr. 622, 625, citing authorities; affd., 129 N. Y. 623.)

In 1889 the plaintiff, when nearly sixty years old, married the defendant. In January, 1894, he conveyed to her the homestead in Amityville, then in their joint names, and in September of that ■ year he further conveyed the rest of his realty situate in Richmond county, and made to her transfer of .thirty railroad bonds of the par value of $30,000. The parties lived together until July, 1897, when plaintiff fled his home to his relatives, and-six months thereafter brought this suit. In face of. the conveyance of January, 1894, plaintiff testified that he knew nothing about it. Confronted with the -conveyances and the transfer, both of September, 1894, he said that he knew nothing about them; that he was insensible half of the time from drugs, and particularly morphine, largely administered by the defendent. - In brief, the plaintiff testifies that lie was for years so dosed and drugged while held in durance that liis mind was a blank and he was a mere passive thing. The conveyance of January, 1894, was drawn by an attorney of probity in liis profession for twenty years. He testifies that the defendant instructed him ; that thereafter both parties came to his office ; that both talked with him, and that the plaintiff signed and executed the •conveyance before him when he seemed rational and in fairly good health. He further testifies that he had gone to the plaintiff’s house before this time relative to a transfer of personalty, but that the plaintiff himself then postponed the business. The second conveyance and the transfer of the personalty were prepared by another •attorney, who now appears for the defendant. This gentleman is a lawyer of long and active professional life, who has attained a high standing at our bar. He testified that the parties, as strangers, consulted him, and that the plaintiff stated that he wished these conveyances and transfers of all his property to be made to his wife. The.witness then told the plaintiff that this was an unusual step, and sent him away until the next day, and on the next day, when the plaintiff still insisted, the witness took the data and postponed the meeting for a week, when the conveyance was' executed, the transfer was made, and the key of the depositary of the bonds was delivered, all before or in the presence of the attorney. Dr. Wilsey, superintendent of the insane asylum at Amityville, testified that the plaintiff sent for him in December, 1893, to observe his mental condition, because he feared that his sistei^and his nieces might accuse his wife, as he now accuses her. The plaintiff stated to Dr. Wilsey ■that his wife was kind, and that he wanted her to have his money. The plaintiff then, and at various subsequent interviews, seemed ■entirely rational. In 1896 he complained to the witness that his ¡sister had visited him but once in years; that then she acted as a savage and only wanted his money ; that his nieces were provided for, and that he had made the disposition of his property as he wished. In 1895 he complained that his wife did not allow him all the freedom he wished, but said that he teased her * * * .and * * * got some satisfaction.” Dr. Carlos F. McDonald ■examined the plaintiff in 1892, in 1893, twice in 1894 and in 1895 respectively, and in 1896, when plaintiff always appeared sane. This witness thought that the plaintiff suffered from a nervous affection, diagnosed as an irregular form of epilepsy, and from the symptoms described believed that plaintiff liad periodical attacks of unconsciousness., But Dr. McDonald thought that the plaintiff’s-mind was neither weak nor cloudy, but that it was perfectly clear and rational. The patient ■ was sometimes irritable, petulant and fault-finding with his wife. On one occasion he claimed that she interfered and would not let him have his own way; on another, he commended her as a wife and as a nurse. Several of plaintiff’s, neighbors, who were not' impeached, testified that he had told, them of this disposition of his estate. The clergyman Edwards told of a protracted" conversation, in the absence of the defendant, when the plaintiff said that he thought it best to put his property in his wife’s hands; that his own relatives cared little, for him, and that he remembered his wife’s ■ kindness to him.

The plaintiff replies to the testimony of these witnesses by testifying in reply to Mr. Edwards, “ I talked to him but nothing of any account, because I was incompetent to talk; I was incompetent. I remember I was incompetent at the time; yes — any time. Yes, I remember I was incompetent any time I talked with those other men I have spoken of.” The plaintiff testified that he learned' the. morphine habit from “ her drugging,” and that he continued to take morphine, after he left his wife up to about a year before the trial, though in gradually reduced quantities. He afterwards testified that he never took a bit of morphine except that the defendant gave it to him, but that she did not force him ; he had to take it, but that it was administered in too large quantities. I thus quote to show that the plaintiff took the drug.' The defendant states that she gave him homoeopathic coffea in 1892, and a solution of deodorized opium in 1893, but that she never gave him any morphine or morphia before 1895. She further testifies that he was addicted to strong drink, and that she had discovered his secretion at different times-of bottles of morphia, and that she had refused to comply with his. requests for the drug. Dr. Wilsey testifies that in May, 1894, he prescribed nux vomica, and previously iodide of potash and other-medicines, and that he had heard from the patient during his attendance that opium had been given to him in November, 1895. Dr. McDonald learned of the administration, throughout his visits, of deodorized tincture of opium and some other remedies under the advice of Dr. Wilsey, and also of morphia. Certainly these statements tend to refute the theory that the defendant was engaged in the secret administration of drugs to murder the mind and to wreck the body of her husband. I credit the testimony of the plaintiff that he took, from time to time, quantities of medicines and drugs, and several that benumb and deaden. I believe that such may have been their effect at times upon him. I believe that some of these medicines or drugs were administered by his wife, who before marriage had taken her diploma as an electropathic physician. But I ■cannot conclude from the testimony of the plaintiff, or from any ■evidence claimed to sustain him, that the defendant for years, under the guise ■ of wifely care, sought to kill the mind of her husband that she might rob the imbecile she had made. The allegations of imprisonment are negatived by several disinterested witnesses. I shall not discuss in detail the testimony of the defendant, who claims that her conduct, which the plaintiff terms imprisonment, was simply care warranted by his failings, and which, if her story he believed, shows that she only demeaned herself as a good wife. I have preferred to try the plaintiff’s testimony by that of witnesses who are not-as naturally interested as the defendant.

Finally, this disposition of property, if unusual, was not unnatural in a man advanced in years and afflicted with epilepsy. Hone dependent on him was disregarded, none naturally an object for his .bounty was cut off. The defendant has remained at home, inviting the plaintiff to return, in homely and in affectionate phrase, not with the formalities that would go to make a record. The defendant testified that the understanding between them was that he was to have a home with her, and equity might well impress a trust, if he sought its aid, that would at least afford to him a home for his life. (Schouler Husband & Wife, § 388, citing Edgerly v. Edgerly, 112 Mass. 175, 177; Seibold v. Christman, 7 Mo. App. 254.)

Hone of the exceptions taken presents any error sufficient to upset the judgment.

All concurred.

Judgment affirmed, with costs.  