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of said pre
And the plaintiffs allege, upon their information and belief, that said defendant, contriving and intending to defraud said A. B. of his property, or a portion thereof, attempted to, and did, without cause, prejudice the mind of said A. B. against the members of his own family, and by means of false representations and improper and undue influence, aided by the weakness of understanding of the said A. B., did prevail upon him to execute, acknowledge and deliver the above mentioned conveyance of said mises, and for no other consideration, whatever, than as hereinbefore mentioned.
That said deed was recorded in the clerk's office of county, on the, &c., and said defendant has not attempted to convey said premises.
Wherefore the plaintiffs demand judgment, that the said deed may be declared null and void, and may be canceled and discharged of record, and that the title of the plaintiffs in and to said premises, and every part thereof, may be confirmed and established, as against said defendant and all persons claiming through or under him, or for such other, &c. [as in No. 1].
( No. 28.)
By the grantor, to set aside and declare void his own deed, for fraud and undue influence, and on account of his mental incapacity.
SUPREME COURT-SCHOHARIE COUNTY.
agt. Ira Hubbard, as administrator, Elizabeth M.
Spencer, widow and administratrix, Orlando Spencer, as administrator and heir, and William M. Spencer and Jared Spencer, heirs of Chancellor Spencer, deceased.'
The complaint of John Walker, the plaintiff in this suit, respectfully shows, that he will be 83 years old on the 23d day of September, 1849, and has, for above 40 years, last past, resided in the town of Broome, Schoharie county.
That he has a wife and six children, now living (one son and five daughters); that another son of said plaintiff died on or about the 15th of December, 1846, leaving a widow and seven children, all residents of said county.
That the plaintiff, in December, 1846, had a severe attack of fever, which confined him to his house, and most of the time to his bed, till the month of April, 1847. That the mind of said plaintiff
, from the effects of such sickness, added to the infirmities of age and physical debility, became so impaired as to render him wholly inca
The conveyance sought to be set aside is in the nature of a lease during the life of the plaintiff, with remainder to the heirs of the lessee and grantee, in fee; the grantee having died before the termination of the lease, his administrators, as well as his heirs, are made parties defendant. [ See, post, 145.)
pable of transacting his own business, and to make him wholly dependent upon others for the management of his affairs, and that the said plaintiff has ever since remained, and is now, weak in body and mind, and incapable of managing his business affairs with adequate discretion.
That one Chancellor Spencer (now deceased), who was the son-in-law of the said plaintiff, had acted as the counselor and adviser of said plaintiff, in most of his business transactions, for a long time previous to such sickness; and that during such sickness, possessing the entire confidence of said plaintiff, he, the said Chancellor, acted as the attorney and general agent of said plaintiff, in all of his business transactions, and exercised entire and exclusive control over the same.
That the said plaintiff, on the 19th day of April, 1847, and for a long time previous thereto, was the owner in fee of a certain farm at his said place of residence, worth, at least, $3,500, which constituted his whole property, except a small amount of personal property, not exceeding enough to pay the demands against him.
That the said Chancellor, designedly, to obtain the property aforesaid of said plaintiff for little or no consideration, knowing the influence he already possessed over said plaintiff, with the design aforesaid, and the better to enable him to accomplish his purposes, appeared to take an unusual interest in the welfare of the said plaintiff, and by flattery and various other devices, as the confidant, adviser and attorney of said plaintiff, acquired such an undue influence over him as to obtain and exercise entire control of the mind and business matters of the said plaintiff.
That said plaintiff, still being so enfeebled and weak in mind, and incompetent, and under the influence of the said Chancellor, was induced and influenced by the said Chancellor, to make and execute the writing, a copy of which is hereto annexed, marked “A,” by virtue of which the said Chancellor has taken possession of, and his heirs and representatives still retain possession of, his said farm, mentioned in said contract and referred to above. That the said Chancellor, knowing that the said plaintiff was to be at the village of Durham on the 19th day of April, 1847 (the day of executing said writing), where he would be free from the influence of any portion of his family or friends, desired the said plaintiff to give him a writing, expressing the terms upon which he, said Spencer, should come to reside with him, said plaintiff.
That the said plaintiff informed the said Chancellor that he wished to have the matter delayed, and that he could come to his, plaintiff's, house at some future time, when he, said plaintiff, would give him, said Chancellor, a writing, as he, the said plaintiff, was then so feeble in body and mind that he, said plaintiff, felt unable to make any writing understandingly, and so informed the said Chancellor at the time.
That the said Chancellor thereupon stated to said plaintiff, that he, the said Chancellor, would be liable to censure if he should do it himself at the plaintiff's house, and that he, the said Chancellor, would pay the whole
expense, and that, if said plaintiff was dissatisfied with any part of said agreement, he, said Chancellor, would at any time thereafter modify or alter it, as the said plaintiff might wish.
That plaintiff being weak and feeble, as above mentioned, was thereby induced by the said Chancellor to execute the writing above referred to, believing that any alterations would be made, at any time thereafter, upon said plaintiff's request.
That said plaintiff afterwards learned and understood the effect and meaning of the said writing, which was to deprive him of adequate means to support himself and family, and that, for comparatively no consideration, the said farm was leased to the said Chancellor during the life of the said plaintiff, and, after the decease of the said plaintiff, to the said Chancellor and his heirs forever, thus disinheriting said plaintiff's remaining children, being equally needy and having equal claims upon the bounty of the said plaintiff
. That immediately after hearing and fully understanding the effect of the said writing, the plaintiff requested the said Chancellor to change, alter or surrender up the said writing, but the said Chancellor refused to do either, and told the said plaintiff that he should abide by the terms of the writing.
That the said Chancellor, in the spring of 1847, sent his sons Orlando and Jared to cultivate said farm, who have cultivated the same in so unfarmerlike and negligent a manner as to leave the plaintiff very inadequate means of support, and who have also ill treated the said plaintiff, with the said Chancellor's approbation, while residing on the said farm aforesaid.
That the said Chancellor died in June, 1849, leaving the said Elizabeth M. Spencer, his wife, a widow, and the said Orlando, Jared and Wm. M. Spencer his sole surviving children, the last of whom is under the age of twenty-one.
That since the death of the said Chancellor, the said Elizabeth M. and Orlando Spencer and Ira Hubbard have been duly appointed administratrix and administrators of the effects of the said Chancellor, and have entered upon their duties as such administrators, as the plaintiff is informed and believes to be true.