
    Alfred A. Moore and Anna L. Moore, Appellants, v. Frank A. Moore, Respondent.
    Third Department,
    November 10, 1909.
    Beal property—decedent’s estate — execution of deed by aged woman — — inconsistencies — burden of proof.
    Where a woman, seventy years of age, subject to certain infirmities, was brought into business relations with the defendant in whom she reposed' a certain degree of confidence and gave him a deed of property worth §4,500 for the consideration of only $500 and subject to a life estate to the grantor and an advancement of an additional sum of §500 to be repaid, and subsequently executed a formal instrument to him for the further loan of §100, which was so entirely inconsistent with the theory of a prior absolute grant intelligently comprehended by the grantor that it is impossible to reconcile it with the deed, it is incumbent on the grantee, who, after the grantor’s death, had presented claims for the money advanced against the estate, which was insolvent, and who claims the property, to show satisfactorily that the deed and not the subsequent instrument represents the correct status between himself and the decedent and, in the absence of such proof, a judgment in his favor will be reversed.
    Appeal by the plaintiffs,, Alfred A. Moore and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Madison on the 24th day of July, 1907, upon the report of a referee.
    
      
      Louis M. Martin, for the appellants.
    
      R. H. Woolver [M. H. Kiley of counsel], for the respondent.
   Cochrane, J.:

This is an action by two of the heirs at law of Mary Ann Norton to set aside a deed executed by her to the defendant July 4, 1902, on the grounds "of mental incapacity, undue influence, fraud and inadequate consideration. The grantor was a widow without descendants, and died in December, 1903. The deed was subject to the life estate of the grantor, and the consideration was therein expressed as follows: The consideration referred to hereinbefore is the sum of five hundred dollars ($500), and the furnishing first party with an additional sum of five hundred dollars. The first sum of five hundred dollars being paid by second party to first party on the delivery of this deed. The additional sum of five hundred dollars to be furnished by second party to first party on the delivery of this deed. Said additional sum of five hundred dollars is to be repaid by first party or to be repaid out of her estate after her death. It being understood that the money thus furnished is to be used in settling with Arthur & Julia Branagan, who are now occupying said premises. If on said settlement a portion of said money is unused, or is returned to first party by said Arthur & Julia Branagan, that part unused or returned to first party is to be repaid to second party.” The grantor had previously made a contract with said Arthur Branagan relative to the property in question, with which contract she had become dissatisfied, and the purpose of the conveyance to defendant was to raise money with which to effect a cancellation of the Branagan contract. All of the $1,000, being the consideration of the deed, was paid to Branagan, and the contract with him was canceled and rescinded on July eleventh, one week after the execution of the deed.

Under the evidence produced herein we would not be disposed to interfere with the conclusion of the learned referee" were it not for one fact which we are unable to overlook. On September 10, 1902, Mrs. Norton executed under seal an instrument, of which the following is a copy:

“ Whereas, On the 11th day of July, 1902, Frank A. Moore advanced to me the sum of $1,000 to be used in settlement with Arthur Branagan, and I secured him by a deed of my farm, and security on my stock; and, Whereas, I am indebted to Edwin J. Brown in the sum of One Hundred Dollars for services in connection with said settlement with Branagan, and I am desirous of paying him; and, Whereas, said Frank A. Moore is willing to furnish said sum of $100 to pay said Brown ; How, Therefore, for the purpose of securing said Moore for said sum of $100, I do hereby charge my estate with the payment of the same at my death, the same to be paid out of my personal property, and to be a continuing charge upon my estate until fully paid with interest.
The payment to be made at the same time he is paid for the $1,000 advanced as aforesaid.”

This instrument was delivered to the defendant who, pursuant to the tenor thereof, advanced the sum of $100 to Mr. Brown. After the death of Mrs. Horton the defendant presented claims against her estate for the said sum of $100, and also for the sum of $500, being part of the consideration of the deed, attaching to such claims copies of the said instrument of September 10, 1902, as evidence in their support. On the judicial settlement of her estate he received his proportional share of these claims, the personalty of the deceased being insufficient for the payment in full of her indebtedness.

It is probably true that the recitals of this instrument of September 10, 1902, have merely the force of an admission and could not effect the destruction of a prior absolute conveyance, the validity of which was unquestioned. But the admission is of such a deliberate and formal nature and is so entirely inconsistent with the theory of a prior absolute grant of the property intelligently comprehended and fully understood by the grantor that it is impossible to reconcile the deed with this subsequent instrument. The draftsman of the deed also drew the contract of settlement between the grantor and Branagan. They were related transactions and negotiations for the settlement with Branagan were proceeding contemporaneously with the execution of the deed. This draftsman of both instruments was called as a witness by the defendant, and testified minutely concerning the Branagan contract and the conversations and statements of Mrs. Horton in connection therewith and the circumstances surrounding the same. But not a word of testimony was offered relative to the circumstances of the deed, except that it was prepared by him and executed and acknowledged in his office. There is nothing to show that the grantor understood the purport of the deed. Nor is there any testimony relative to the circumstances surrounding the execution of the subsequent instrument of September tenth. The two instruments are absolutely irreconcilable and no explanation of their inconsistency has been attempted. According to the terms of the deed the defendant was to pay in fact only $500 for the property, subject to the life estate of the grantor, the entire value of which property was stated by the defendant in an affidavit to be about $4,500. Very clearly if Mrs. Norton and the defendant understood the latter instrument the deed must have been intended merely as security and not as an absolute conveyance, and if thus understood the subsequent effort of the defendant to gain an advantage under the deed to which he was not entitled would justly compel the inference that the grantor had been overreached and made the subject of imposition in executing an instrument of a different import from that intended. She was a woman about seventy years of age, subject to certain infirmities and by the force of circumstances brought into business relations with the defendant, in whom she reposed a certain degree of confidence, and it was clearly incumbent on him to make satisfactory explanation that the deed and not the subsequent instrument represented the correct status between himself and his grantor. In the absence of such explanation the conclusion of the referee that the deed was an absolute conveyance of the property is against the clear weight of evidence.

The appellants consent on this appeal that the deed be allowed to stand as security for so much of the consideration thereof as remains unpaid to the defendant. Under the facts as found by the ' learned referee we doubt our power to make such disposition of the case unless the respondent consents thereto. But in case of his unwillingness to give such consent the judgment must be reversed.

All concurred.

Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellants to abide event unless respondent stipulates within twenty days that the judgment be so modified as to provide that the deed may stand as security for so much of the consideration thereof as remains unpaid to him, and in case such stipulation be given the judgment as so modified should be affirmed, with costs to both parties in 'both courts payable out of the property.  