
    Kelly W. Green, Respondent, v. David C. Benham and Others, Appellants.
    
      Ante-nwptial agreement—presumption against forgery — undue influence.
    
    In an action by a widower against the heirs at law of his deceased wife to enforce an ante-nuptial agreement purporting to have been signed by the wife, proof by the opinions of a number of witnesses of the genuineness of the wife’s signature, where a contrary finding would be equivalent to one that forgery had been committed, can only be overcome by evidence of a high degree of credibility.
    
      Semble, that the fact that the ante-nuptial agreement, which provided that in the event of the death of one of the parties the survivor should take the entire estate of the deceased party, was executed when the parties were betrothed and on the eve of marriage, and that the estate of the husband was (to the knowledge, however, of the wife) not equal in value to her own, does not create a presumption that it was procured by fraud or undue influence on the part of the husband, where it appears that the parties were respectively sixty-seven or sixty-eight years of age, and that the wife was a business woman of considerable experience.
    Evidence sufficient to rebut the presumption, if it existed, considered.
    Appeal by the defendants, David 0: Benham and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 4th day of Hay, 1900, upon- the report of a referee. -
    
      John Gillette, for the appellants.
    
      Wynlcoojo & Sice, for the respondent.
    Judgment affirmed, with costs, on opinion of Hawley, referee.
    All concurred, except Adams, P. J., not voting.
   The following is the opinion of Hawley, referee:

Charles A. Hawley, Referee :

This action is upon an ante-nuptial agreement made between Kelly W. Green and Hannah H. Fox, dated August 18,1894. The agreement was followed by the marriage contemplated; the parties lived together as husband and wife for a time ; thereafter became estranged and separated, and some time after such separation the wife died intestate. She left no descendant, but left the defendants her only next of kin and heirs at law. She died seized of a house and lot in Canandaigua; conveyance thereof was demanded by the plaintiff of the defendants under the ante-nuptial agreement, and refused; and this action is brought to compel such conveyance.

The defendánts dispute the genuineness of the signature of Hannah H. Fox to the ante-nuptial agreement. I think it very clear that this issue must be decided in favor of the plaintiff. To decide otherwise would be equivalent' to finding the plaintiff guilty of forgery; and the presumption against the commission of crime is not to be overcome except by evidence of a high degree of credibility. (Hoffman v. Hoffman, 6 App. Div. 84.)

But it is not at all necessary to invoke this rule. The plaintiff proved the genuineness of the signature of Hrs. Fox by the opinions of a number of witnesses of good character and intelligence, who had seen her write and had had abundant opportunities to become familiar with her handwriting and signature. This- evidence was fortified by the testimony of other witnesses based upon comparisons of signatures which were, in evidence.

The defendants called a professional expert who expressed an opinion that the disputed signature was not genuine, based upon a -comparison of a few genuine signatures with an-enlarged photograph of the disputed signature. - In the course of - his study and measure--merits and minute criticisms of the signatures under his observation, he discovered several variations in the disputed signature from the .genuine signatures which had been submitted to him; and these which he considered departures from the- genuine signatures, and, therefore, indicative of forgery in the disputed signature, he detailed. But upon his cross-examination many other signatures confessedly genuine were presented to him, and it was found that the various characteristics which had been pointed out by him as evidences of forgery existed in one or more of the genuine signatures, and he frankly and with great candor admitted that these facts weakened, if they did not destroy, the effect of his previous observations. And, besides, the rule is that an opinion as to handwriting should ■depend, not so much upon mathematical measurements and minute -criticisms of lines, nor their exact correspondence in detail, when placed in juxtaposition with other specimens, as upon its general •character and features as in the recognition of the human face.” (Miles v. Loomis, 75 N. Y. 288; Matter of Albinger, 30 Misc. Rep. 187.)

The defendants also called some witnesses, but none of them, I believe, were persons who had seen' Mrs. Fox write, but were familiar with her signature, but whose opinions were expressed .-against the genuineness of the disputed signature.

The preponderance of evidence, not only as to quantity, but as to •quality, in favor of the genuineness of the signature, is marked. And this volume of evidence is reinforced by an inspection of the large number of genuine signatures which are produced in evidence.

It is also to be observed that the defendants failed to call witnesses upon this branch of the case who were familiar with the ■signature of Mrs. Fox, although it is probable that many such might •easily have been obtained.

Upon this conflict of evidence I am clearly of opinion that the ¡signature of Mrs. Fox to the agreement in question is genuine.

But the defendants insist that, conceding the genuineness of the -signature, the ante-nuptial agreement is void for undue influence or for fraud, actual or constructive, and they invoke the rule that, "inasmuch as the parties to the agreement were betrothed and on the eve of marriage, they occupied such a relation to each other that The agreement is presumptively fraudulent, and the burden is upon the plaintiff to negative that presumption. The existence of such a rule is not open to discussion, but the difficulty lies in determining in what cases and to what extent it shall be applied. It is believed that the existence of the rule depends upon the assumption that because of the intimate relation of the parties their situation is unequal, so that they are not dealing at arms length, and the presumption is that the weaker party has yielded to undue, influence, or ' has been the victim of confidence misplaced because of that relation. But there is no conclusive presumption that the woman is the .weaker party. The rule is sometimes applied to protect the man. (Rockafellow v. Newcomb, 57 Ill. 186.) It would seem then that the application of the rule would necessarily depend somewhat upon the character of the parties to the agreement and somewhat upon the character of the agreement itself.

As to the character .of the parties to the agreement here: They were respectively about sixty-seven or sixty-eight years of age. Quite a number of letters passing between them are in evidence, which betray none of the enthusiasm of youthful passion, and give no evidence that one was under the domination or over-mastering influence of the other. (Tiernan v. Binns, 92 Penn. St. 248.) Mrs» Fox was a widow, accustomed to business transactions, having a life income from her husband’s estate, and owned the real property in controversy in this action. She was accustomed to the signing of checks, leases and to the conduct of business transactions. At least one letter of hers shows her to be a woman of considerable vigor off character and force of expression.

Mr. Green has appeared before me, and .he gave no indication of any special force of character cunning or artfulness which would suggest from his manner and appearance the exercise of any undue influence, or craft Or deceit. .

Under these various circumstances, and others aj>pearing incidentally in the testimony and the conduct of the trial, I am unable to find that the parties were unequal in situation; and I am certainly unable to find that Mi’s. Fox was unequal in situation to Mr. Green, or that in consequence of their intimate relation he did or could exercise a dominating or undue influence over her.

Turning now to the agreement itself •—■ I am unable to find upon the face of the agreement any .indications of fraud, concealment or undue influence. The defendants base their contention largely upon the claim that the agreement is unequal and unjust, for the' reason that Mrs. Fox had more property than Mr. Green. But. the evidence shows that Mrs. Fox prior to the execution of the agreement was advised that Mr. Green had lost his property; that- she made inquiries in respect of him, and among the results of such inquiries received that information. The agreement -recites upon its face that he had no real estate; It was exactly equal in every respect if the parties had been exactly equal in estate.

This is not a case, as are most of those to which my attention has been called in the able and extensive brief of the defendants, where the wife without consideration surrendered all of her rights in the husband’s estate in case she survived him. But this agreement provided that the survivor should take all of the estate, whatever it was, of the party who did not survive. The gift is to and not by the survivor.

But the defendants contend that the agreement was unequal and, therefore, presumptively or constructively fraudulent because it authorized each to take “ immediate possession ” of the estate and property of the other. I do not think that such is the true construction of the agreement. The defendants aré not understood to claim that the word “ immediate ” in the agreement means that they were to take possession immediately upon the execution of the agreement and before the marriage. It is apparently conceded that the word immediate ” is not to have its literal signification, but that its operation is to be postponed to some time subsequent to the day'of the execution of the agreement. It appears as to each party in a clause which begins, “ I hereby revoke and annul all wills by me made; I direct that my wife ” (or my husband) take immediate possession,” etc. It would seem to he quite clear that the intention of the parties was that the survivor, upon the death of the other, should take immediate possession of the property of the, deceased. The gift of each to the other was to the survivor of the property possessed by the one first- dying at the time of his or her death. Such was the practical construction which the parties themselves gave to the agreement. There is not a particle of evidence that upon the solemnization of the marriage they exchanged estates and each one took possession of the other’s. There is not a particle of evidence that Mrs. Fox did .take possession of Mr. Green’s property or that he took possession of hers. On the contrary, the evidence indicates that she continued to invest her surplus income in certificates of deposit in her own name, controlled her real estate and conducted -her business precisely as she did before the marriage.

There is no affirmative evidence of concealment, undue influence, false representations or fraud; and I am of opinion that upon all the evidence in the case, including the agreement itself, the burden was not upon the plaintiff to prove affirmatively the absence of undue influence or of fraud, actual or constructive ; but that this is a case where the trust or confidence or the superiority on one side, and weakness on the other ” is not presumptive but must be proved. (1 Beach Mod. Eq. Juris. § 114; Cowee v. Cornell, 75 N. Y. 101.)

But if we assume that the burden is upon the plaintiff, I am of opinion that it has' been successfully borne; that the agreement itself, with its disclaimer upon its face that Green was the owner of any real estate; the inquiries made by Mrs. Fox, and the information received by her as to the financial situation of Mr. Green; her statements indicative of the idea that she was not after' property, but had enough for both; her avowal that she did not desire her relatives to succeed to her estate; that they had no concern or business with her financial affairs ; that she didn’t care that Green had no property; that , he was a good man and she was going to take-care of him ; and other circumstances appearing in the testimony, together with the age of the parties, the experience of Mrs. Fox in. business transactions, the appearance and character of Green as exhibited upon the stand and the correspondence between the parties, together with the fact that after the marriage and the estrangement and separation the wife made no effort to set the. agreement aside (Ahrens v. Kent, 24 Wkly. Dig. 147; 1 Beach Mod. Eq. Juris. § 138), are inconsistent with the defendant’s contention that there was undue, influence or ■ actual or constructive fraud, and are amply sufficient to affirmatively show the contrary.

The agreement then having been duly executed, being free from undue influence or actual or constructive fraud, is one which is favored by the courts, and is to be enforced in equity according to the intention of the parties. (Johnston v. Spicer, 107 N. Y. 185.)

And there must be judgment accordingly.  