
    HAVILAND v. WILLETTS et al.
    (Supreme Court, General Term, Second Department.
    February 13, 1893.)
    1. Cancellation op Release—Fraud and Mistake. In an action to set aside a release executed by plaintiff to defendants it appeared that plaintiff’s brother died leaving a will, by which the bulk of a large estate was left to two nephews of the testator’s wife. One of the nephews dying before the testator, plaintiff became entitled to about one half of his brother’s estate as heir at law. The surviving nephew, who was surviving executor of the will, and a shrewd man, induced plaintiff, who was a farmer, 74 years old, and wholly ignorant .of his rights, to go before an attorney employed by the executor, and sign a release of all his interest in his brother’s estate, and assent to a divison thereof upon a basis totally at variance with his legal rights. The attorney remarked, in plaintiff’s presenpe, . that he was entitled to about one half of his brother’s estate, but in technical language, which plaintiff did not understand, and may not have heard. Held, that the release was properly set aside.
    2. Same. Evidence that the release was executed by mistake on the part of plaintiff, and fraud on the part of the executor, justifies its cancellation.
    Appeal from special term, Dutchess county.
    Action by Barclay Haviland against Martha T. Willetts and Thomas T. Tabor, administrators with the will annexed of Isaac E. Haviland, deceased, and others, to set aside a.release executed by plaintiff, to defendants. From an interlocutory judgment of the circuit court in favor of plaintiff, and an order refusing to set aside the judgment, defendants appeal. Affirmed.
    It appears that, at the time plaintiff signed the release, defendants’ attorney remarked in his presence that, one of the legatees in the will of deceased having died before the testator, the legacy had lapsed, and plaintiff was entitled to one half of the residuary estate of the testator, but that plaintiff did riot understand what was meant thereby, and may not have heard the remark at all.
    Argued before DYKMAN and PRATT, JJ.
    Arnoux, Ritch & Woodford, (Wm. H. Arnoux and John R. MacArthur, of counsel,) for appellants.
    Frank B. Lown, for respondent.
   PRATT, J.

We concur in the conclusions of the learned trial judge ' in this case. The agreement in question was made between Tabor, who was the surviving executor of a will, and plaintiff, who. was a legatee and sole heir at law of the testator. It is therefore apparent that the executor sustained a relation of trust and confidence to the plaintiff, and that, if the writing shall stand, the trustee and his friends thereby, became substantially the donees of that which must have been regarded as quite a fortune by each of them,—a fortune which belonged to plaintiff, and which it was this trustee’s duty to preserve for and deliver over to him, in due course of administration. The case therefore falls within a class which courts always regard with just suspicion. This one presents features which offend .the moral sense. . An aged man, living on and working a farm, unused to the ways of business, suddenly became entitled to a fortune, through events dependent somewhat upon questions of law, which, although familiar to lawyers, and perhaps to shrewd business men, were, nevertheless, quite abstruse, not to say intricate, to an old farmer like the plaintiff. It is conceded that the.executor was a remarkably shrewd, experienced, and, as we judge by the result, very thrifty, person. Plaintiff was somehow induced to give an apparent assent to a division of the testator’s estate, including his share therein, upon a basis totally at variance with his legal rights. He was subsequently taken to the office of a lawyer, not of his own choice, but selected by the trustee. He was utterly without professional advice or assistance of his own selection. The only remark made in his presence which would even tend to suggest his legal rights, although intended, as it is said, for his benefit, was not even addressed to him, but to the trustee. It was couched in technical language, which could have had but little meaning to this old farmer, then about 74 years of age. It is by no means clear that he even heard the remark, or felt at liberty to inquire about its meaning, since it was not addressed to him. The result was a long, carefully drawn, and somewhat involved paper, covering 5 pages of the printed case, 3¿ of which are occupied with recitals, which become conspicuous chiefly because they fail to disclose the point upon which this old man’s rights depended, and which was the subject of the lawyer’s remark above referred to. The paper, though in form of an assignment and release, in reality attests an act of simple bounty towards this trustee and his relatives. There was nothing in the relations between these donees and this old man which would naturally suggest such a disposition on his part. He gave none of the instructions which, led to the preparation of these carefully drawn recitals. Indeed, these recitals strike us rather as an apology than as the true reason or consideration for the operative clauses which follow. A case so striking could scarcely have failed to impress its details, or, at least, leading incidents, upon the memory of the person who prepared this paper; and yet the significant fact appears that the draughtsman was unable to recall but little of anything important, save the single remark above alluded to. We cannot detect' with exactness the influences which led this old man to do this thing; nor is it necessary that we should do so. The rule to which we allude rests in a great measure upon the improbability that one thus situated should ever be able to prove to a court, or even explain to himself, just what did induce the act in question. The court looks upon the relations and their results. Story, Eq. Jur. § 319; Fulton v. Whitney, 66 N. Y. 548. We fully agree with the trial judge that this old man executed this paper under a mistaken notion of his rights. But it is said that there is no evidence of mutual mistake. The answer is, that mistake on the one hand, and fraud on the other, is quite sufficient to justify the conclusion reached in this case. It is unnecessary to consume time in an effort to show the application of this observation; and we therefore, without further discussion, affirm the judgment, with costs.  