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that he was entitled to one-half of Arthur's personal estate, since the attorney for the defendants did not know this for some time after the administrators of Arthur's estate were appointed. Neither the defendant John nor his brother Sam claim that they advised Uncle Perry what his rights were in the estate, and from the testimony of the defendant Katherine the inference is that she did not advise him until after the papers had been executed, and then only indifferently. The defendants would have it inferred that they told Perry that the amount of the inventory of Arthur's estate was $30,000, because there was some $8,000 or $10,000 of his mother's estate mingled with his; but they did not tell this to Uncle Perry. When they told him of the $18,000 claim for damages, adding that they were going to fight it to the "last ditch," they very plainly gave the impression that it was a serious claim. Deducting from $30,000 the estate of Arthur's mother and the $18,000 claim, there would not be much left in Arthur's estate to pass to any next of kin. It was his interest in Arthur's estate that was transferred to these defendants by this paper writing, and consequently it was of the greatest importance in fair dealing and honesty, and in order that there be no deception, that he should be told frankly and fairly what the circumstances of that estate were and what his interest therein was before he was asked to sign the paper. These circumstances certainly furnish more than the slightest proof that an advantage was taken of the old gentleman, and that more that the "least speck of imposition" was practiced upon him. See Cowee v. Cornell, infra.

[2] Fraud vitiates all contracts, and it is the general rule that the. burden of establishing the fraud rests upon the parties alleging it as a ground for defeating a contract. But there is an exception to this rule as generally recognized, which is stated in Cowee v. Cornell, 75 N. Y. 91, 99 (31 Am. Rep. 428), as follows:

"Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood."

[3] Under such circumstances, if the burden is not met by the stronger party, constructive fraud may be found. We have not here one of the usual cases of confidence placed and influence exerted, in which it is presumed that the parties dealt under terms of inequality, but rather a case in which the inequality is shown by the facts and circumstances of the case, and to such a case the same exception applies. In Smith v. Kay, 7 H. L. Cas. 750, cited in 13 C. J. 407, it is said:

"The relations with which the court of equity most ordinarily deals are those of trustee and cestui que trust, and such like. It applies specially to those cases, for this reason and this reason only, that from those relations the court presumes confidence put and influence exerted; whereas, in all other cases where those relations do not subsist, the confidence and the influence must be proved extrinsically, but, where they are proved extrinsically, the rules of reason and common sense, and the technical rules of a court of equity, are just as applicable in the one case as in the other."

Also the circumstances of a case may be of such a character, "if not sufficient to shift the presumption, at least to authorize a setting aside of a contract without any decisive proof of fraud, but upon the slightest proof that advantage was taken of the relation, or of the use of 'any arts or strategems or any undue means or the least speck of imposition.' Cowee, v. Cornell, supra, 75 N. Y. 91, 101, 31 Am. Rep.

428.

[4] Where the circumstances justify it, the law will interpose "by adjusting the quality and measure of proof to the circumstances, to protect the weaker party and, as far as may be, to make it certain that trust and confidence have not been perverted or abused." In re Smith, 95 N. Y. 516, 523. See, also, Barnard v. Gantz, 140 N. Y. 249, 259, 35 N. E. 430.

[5] The general rule as to undue influence as stated in Story's Equity Jurisprudence, § 238, is:

"The doctrine, therefore, may be laid down as generally true, that the acts and contracts of persons who are of weak understanding, and who are, thereby, liable to imposition, will be held void in courts of equity, if the nature of the act or contract justify the conclusion that the party has not exercised a deliberate judgment, but that he has been imposed upon, circumvented or overcome by cunning or artifice, or undue influence."

This rule is applicable to all cases where the relation between the parties gives one a controlling influence over the other. Sears v. Shafer, 1 Barb. 408, affirmed 6 N. Y. 268.

We think, under the circumstances of this case, the defendants were required to make explanation, and that "without any decisive proof of fraud" the duty rested upon them of satisfying the court that the making of the contract was the free and intelligent act of Perry Willett, and that the contract was procured without overreaching and without deception on their part, and was such as a court of equity can prove. One cannot read this record without being strongly persuaded that Perry Willett, suddenly called upon to act without counsel or advice, did not deal on terms of equality with these defendants and their attorney. The defendants were represented by counsel. Evidently the defendants knew beforehand the contents of the paper; it is the fair inference that it was the result of a plan agreed upon between them and Pratt, perhaps Sam being their instrument.

We repeat that, when Pratt stated to Perry what the paper was, he did not mention in any way the obligations which the defendants were called upon to assume under the proposed contract. He did not ask them if they were satisfied; it seemed at once to be thoroughly understood by every one except Perry. We must accept the conclusion that Pratt was acting solely for these defendants and not at all for Perry Willett. The facts and conditions above recited leave the firm impression that Perry was a dependent old man, who relied upon other people for "maintenance and guidance and cleanliness," as expressed by Forest Kenyon, a witness for the defendants, and that he, without personal choice, trusted, and took his views from, those relatives with whom. he was at the time and acted as they suggested.

This paper was prepared at the sole instance of the grantees, the grantor never having had it submitted to his consideration. This cir

*

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cumstance renders it subject to suspicion and "raises a presumption of fraud." "For where an instrument is prepared by direction of the party who seeks advantage from it, and the other party has no person with whom he consults on the subject, *

a great de

gree of jealousy attends the instrument." Sears v. Shafer, supra, 1 Barb. 415.

There is another bit of evidence in the case. On the same day the contract was made Perry Willett acknowledged the execution of a waiver of the service of a citation upon him to attend the judicial settlement of the accounts of the administrators of Arthur Willett's estate; and therein it is recited:

"I do hereby consent and request that a decree may be entered herein settling the said account, as verified by the said Samuel P. Wright and Howard M. Hall, or either of them, whenever the same shall be presented to the said court for that purpose."

The circumstances of the execution of this paper we do not find related anywhere in the evidence. It is not mentioned, as far as we can find, in the testimony of any witness. Under this paper there was a substantial assurance that, whatever the amount of the estate, and whatever developed upon the accounting, no information thereof would come to Perry Willett. The whole transaction was intended to be tightly closed. We believe the cause of action above discussed is within the allegations of the complaint; but, if there is evidence tending to establish a cause of action broader than that alleged, such evidence was received without objection thereto. In the complaint plaintiff "offers to return to defendants all that he received under, or as a consideration for, said assignment."

The judgment should be reversed, with costs, and the case returned to the trial court, to determine what amount should be paid to defendants for moneys expended, services rendered, or expenses incurred in behalf of Perry K. Willett under or as a consideration for the assignment.

We disapprove of findings VIII, XII, XXV, XXVIII, XXX, XXXI, XXXVII, XLIV, XLV, XLVI, and XLVII, and find that, at the time of the execution of the assignment, Perry K. Willett was dependent upon and subject to the control of the defendants; that he did not deal on terms of equality with the defendants and their attorney; he placed confidence in them and signed the paper writing induced thereto by deception and concealment; that the paper, when executed, was not understood by him, and its execution was not his free and voluntary act, the result of his deliberate judgment; that he did not ratify or confirm the assignment after its execution; that the assignment be set aside; that the plaintiff recover from defendants any money or property received by them by virtue of such assignment.

Judgment reversed on the law and the facts, with costs, and the case returned to the trial court to determine what amount should be paid to defendants for moneys expended, services rendered or expenses incurred in behalf of Perry K. Willett under or as a consideration for the assignment. All concur, except COCHRANE, P. J., and HINMAN, J., dissenting, each with a separate opinion.

COCHRANE, P. J. (dissenting). The action was originally begun by Perry K. Willett. After his death the present plaintiff was substituted. The original plaintiff naturally would not and legally could not effectively allege in his complaint his own incompetency. He did not attempt to do so. The gravamen of the action is fraud and undue influence. See Aldrich v. Bailey, 132 N. Y. 85, 30 N. E. 264. While there is a general allegation of fraud the complaint specifies with considerable particularity that such fraud consisted in stating and representing to the plaintiff that the paper he signed related to the estate of Franklin Willett. The complaint then alleges that it was upon these latter statements and representations that the plaintiff was "induced to execute said transfer, conveyance, or assignment." There is no evidence, as I view it, sustaining these allegations of the complaint. There was no request for its amendment. It is fundamental that a recovery must be according to the allegations and the proof.

The trial justice dismissed the complaint. I find no proof sustaining its allegations, and therefore I think the judgment should be affirmed.

HINMAN, J. (dissenting). I have not been persuaded by the prevailing opinion in this case. It overlooks elements in the case which are undoubtedly established by most credible testimony, which as a starting point furnish the foundation for the giving of credence to the defendants' theory of this whole transaction. Mr. Justice VAN KIRK likewise brushes aside all of the testimony of Perry Willett; whereas, it seems to me that testimony should be carefully considered, because it clouds the whole of the plaintiff's case and discredits it utterly. The majority of the court have reached a conclusion which is absolutely contradictory to the theory of Perry Willett when he brought the action. They have decided the case upon a theory foreign to that expressed in the complaint, and to that upon which the plaintiff tried the case throughout. Because a recovery is now being allowed in violation of the rule of secundum allegata et probata, I fully concur in the opinion written by COCHRANE, P. J.

Moreover, I wish to express my dissent upon the facts. Perry Willett's testimony, taken upon open commission, tells a story which is not incoherent or inconsistent with itself, but which is consistently false and in many material details, as shown by the testimony of disinterested witnesses, like Dr. Ingraham, Thomas O'Brien, Forest Kenyon, and others. In view of this wholly incredible testimony on the part of Perry Willett, and the disinterested testimony as to just what took place at the time of the transaction, and as to the apparent satisfaction that he expressed during his two months' stay there with the kind of home that he had obtained and was enjoying, it seems clear to me that Justice VAN KIRK has placed the emphasis in the wrong place, and that a reversal of this judgment would be doing a great injustice.

I am thoroughly convinced that Perry Willett understood just what he was doing, that he did just what he wanted to do at the time, and that he had all the knowledge that he cared to possess when executing the agreement. He simply suffered a change of heart after he re

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turned to the West. It is uncontradicted by Judge Rogers, or any one, that Perry told the judge in a conference with him, after Bigelow's first visit to the East, "that he had assigned it to who he wanted to, and it was going to where he wanted it to go." Dr. Ingraham, the disinterested notary public, who was evidently a man of fine standing in the community, not only contradicts Perry Willett absolutely as to what took place, but as a physician, competent to judge and having no interest, he testifies that Perry Willett was an unusual man for his age; that he talked perfectly rationally, and said:

"I don't see how a man could talk in detail as he did about affairs so rationally and soundly, and not know enough to understand that simple paper, when it was read to him in a clear and distinct voice."

Thomas O'Brien, another disinterested witness, who had been an old friend of his, testified that he had had conversations with him during his stay in the East, and that Perry told him that he did not wish to go West, but he dreaded the winter. He said he was used well and had a good home. He told him he was sorry for John Wright, who was blind and poor. He testified that Perry was just as good as he was 40 years before for anything he saw. Pratt, the attorney, and Forest Kenyon, are corroborated in so many particulars by these disinterested witnesses, as are also John and Katherine Wright, that there is not the slightest reason for discrediting their testimony as a whole; whereas, if the doctrine of "falsus in uno, falsus in omnibus" should ever be applied, it should be applied to the testimony of Perry Willett.

There is absolutely no testimony to show that Perry was dependent, physically or mentally, upon those present at the time of the transaction. or that he was in any way subject to their control. He was not weakened in mind or body by disease or mental infirmity. This action was not brought upon any theory that Perry Willett was incompetent to manage his affairs. If so, a committee should have been appointed to bring the action for him. Moreover, in August of the previous year he had made a will, and one of his own witnesses, Mr. Wettack, cashier of the bank at Coffeyville, said that at that time Perry had sufficient mental capacity to understand the nature and character of his act, the amount of his property, and the objects of his bounty. His act in making this assignment to John and Katherine Wright did not take the property away from the natural objects of his bounty. There was no more reason for his leaving this property to Bigelow than to John and Katherine Wright. He had known John from boyhood, and had expressed great sympathy for him, because of his blindness, and he express the same feeling to disinterested witnesses at the time he was living with the Wrights, subsequent to this transaction. The Bigelows. had been living 100 miles from him for 10 to 20 years. They had never invited him to come to their home in Augusta to visit them during that time, and very seldom had Bigelow been there at Coffeyville to see him. Bigelow had manifested no interest in him and as Perry expressed it to one of the disinterested witnesses, Bigelow had not even come to his assistance when his cattle had been stolen from him. He characterized Bigelow as a "skunk" in such conversations. He called him a gambler and a bootlegger, and in fact it is undisputed that