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Mott v. Mott.

the defendant was by with advice, no influence save his was exercised, no friend but he consulted, in whom confidence was reposed.

There could be no stronger evidence of influence exercised by an only son over his mother, an old lady in the mental condition. of Mrs. Mott, than to thus find that under his inspiration the whole current of her life is changed; a mother's love and confidence in an only daughter replaced by aversion and distrust, her cupidity first awakened to arouse suspicion of the daughter's honesty, and then put to sleep by entire reliance in the integrity of the son. The conveyance being made at a time when confidence was thus placed in him by his mother, and when he, holding her power of attorney, was her agent, the burden of proof is doubly thrown upon him to show that her confidence was not abused, that this transaction was in all respects fair and that it is unmixed with any fraud.

How has he met this requirement?

He was examined as a witness in his own behalf. That no injustice be done him his statement is given in his precise language. In answer to the direction of his counsel to state "all that occurred and the circumstances leading up to the execution of this deed, beginning at the beginning," he says:

"Well, the first start after that deed, was my going to Hackensack to get that furniture and the goods of mother's; I went there and was told part of her goods had been sent to St. Augustine; as I packed up what I could and sent to mother or shipped them, put them on the platform at the depot, I went up and I told mother that they have sent all your papers and all your valuables south, and she said she could not see what right they had to deprive her of her property, or something similar to it; all I want to convey in that way, and after that in our conversation she said, they are trying to rob me and they have been robbing me, and whether there was anything said about it that day or not, but finally it came out about the deed and it was talked of; finally, after mother had made up her mind to give me the deed to that property, I said 'If you do, I will make my will and will you all my property, the whole of it, so that you may be protected if I drop dead.'

"Q. What was said about your caring for your mother as long as she lived? "A. It was understood that she was to make her home with me and live with me as long as she lived.

"Q. Any agreement?

Mott v. Mott.

"A. There was no agreement; all the agreement there was, was about my making that will.

"Q. What agreement was made between you and your mother about keeping her as long as she lived?

"A. The agreement was I was to provide for her; provide for her and fur

nish her a home.

"Q. Without charge?

"A. Without charge as long as she lived; the first agreement was that I would make my will and I would provide for her and do for her and give her a home as long as she lived."

Asked what was said about the provisions of the will, he

says:

"Well, I told you the afternoon that that deed was signed we had not made up our minds upon what form so as to cover everything, and he knew it was going-that is, I mean to make a will, and so he says you wait and make up your mind how that will wanted to be drew and come in here and we will have it executed."

This is his statement of the agreement on his examination in chief, and it appears to be limited on her part to the deed in question. The agreement, as stated in his answer, embraced on her part not only this deed but "certain other minor personal property" and the release of any claims she might have against him, while on cross-examination he claims that it covered everything she owned, including furniture. Any idea of advancement is eliminated from the case by the answer and by his testimony. He puts it solely on the ground of contract, and claims the conveyance for a good and valuable consideration. He is the only possible witness to the making of that contract; he gives his testimony knowing that there is no one to contract him; he gives it with full knowledge of what he is required to show, and that he is confronted with the duty of proving the entire fairness of this transaction; yet there is the merest fragment of the conversations which led up to the deed, a denial until the suggestive question of his counsel as to his agreement to support, no statement as to what his mother in terms agreed to turn over to him, no evidence of any estimate by her of the value of what she was parting with, not a word about his indebtedness to her, no specification of what she was to receive. The story impresses the

Mott v. Mott.

mind with the belief that the old lady, angered at the thought that her daughter was trying to despoil her, yielded to his solicitation to convey everything to him. The will was an afterthought, as abundantly appears.

This case involves only the Hackensack property, but in the investigation of the question of abused confidence and fraud, we are to look not only at the deed and its execution but to the whole transaction. Huguenin v. Baseley, 14 Ves. 273. We accept his statement as to what was embraced in the agreement.

He has, according to his own account, stripped the old lady of every vestige of property, for he says the transfer included even her furniture, for an agreement that he would maintain her during the remainder of her life. The discharge of the duty of a son to the mother who bore him, and which one would suppose he would be only too glad to perform, is the only consideration for the transfer of real and personal property sufficient in value to have secured what would have been to her a luxurious home. What was the "care, support and maintenance" she was to receive? Not to ascertain if there has in fact been a failure of consideration, but to test the fairness of the transaction. He claims he gave her what he bargained to until she went away, and that he stands ready to continue so to do. What he intended to give her is thus to be ascertained by what she got. Judged by that standard did he impose upon his mother in this bargain? Without female help or female associations, she was placed in charge of his house, cooked his food, mended his clothes, became the merest drudge, doing everything but the washing, and really earned all she received as the consideration of the transfer of her

property. No woman was brought in as a help until the weather grew so cold that fires had to be started.

In February she was stricken with an alarming illness, from which it was doubtful at one time if she would recover. She rallied from the disease, but her mind was well-nigh gone. There is no question raised as to her childishness and helplessness after this attack. The time had come when she needed care, comfort, companionship. The period had arrived when his bargain would not be profitable. It is true defendant had a house

Mott v. Mott.

keeper, but what was the home he gave his now helpless mother in consideration for the transfer to him of all her property? The condition in which her daughter and friend found her in the spring of 1889 was truly pitiable. Mrs. Ackerman describes her as being at ten o'clock in the day without as much as a morning wrap on, nothing but her night dress, in the sittingroom not yet put to rights, with enough of mind left to recognize her daughter, to revive her old affection, and to realize her condition of dependence and poverty; her first impulse was to get away from her present surroundings and go with her daughter, when the remembrance that she had no money to go with seemed to blast that desire and she cried like a child. This eagerness to escape from her environments, this grief when it seemed impossible, leave but little doubt as to the neglect she had experienced, while the scanty traps they were able to collect demonstrated the condition well-nigh of want her son had permitted her to endure. If he has kept his contract and given her what he agreed to, it seems useless to ask, was this a fair bargain for a son to make with his mother, of advanced years, of intellect susceptible to influence, who placed implicit confidence in him? Was he careful that she, who trusted him, was to receive an ample equivalent for that she was to part with? That was his duty under their relations considering her confidence. Was it a contract he could have secured from a stranger? That is the test when he is considered as her agent. Hunter v. Atkins, 3 Myl. & K. 113, 135.

As is said in Whelan v. Whelan, 3 Cow. 537 (at p. 572), "A contract obtained from one party, so much in the power of the other, cannot be sanctioned, if confidence has been abused, if there is inadequacy of price, or the inference is plain that advantage has been taken of age and imbecility, and the partiality of a parent has been artfully made use of to strip him of his property, and reduce him to a state of dependence and want."

Not only does the defendant fail when put to the test to show that his mother's confidence in him was not abused, and that everything was perfectly fair and reasonable in all its terms, but it seems to me the case falls within that where the court will

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Mott v. Mott.

interfere if the party executing an instrument is weak and liable to be imposed upon; if it finds that any acts or stratagems, or any undue means, have been used; if it sees the least speck of imposition at the bottom, or that the grantor is in such a situation with respect to the donee as may naturally give an undue influence over him, and there is the least scintilla of fraud. Bridgman v. Green, 2 Ves. 627; S. C., Wilm. 58; Cowee v. Cornell, 75 N. Y. 91, 101, 102; Lord Donegal's Case, 2 Ves. 407; Huguenin v. Baseley, 14 Ves. 273; Whelan v. Whelan, 3 Cow. 538.

The evidence already considered establishes her enfeebled condition, the influence exercised, the confidence reposed, and the advantage taken. There are also evidences of fraud in the transaction to be gathered from the testimony.

1. Misrepresentation.-There was nothing as ascertained by defendant on his visit to Hackensack that could justify a report which could effect such change of feeling on the part of his mother, and cause her to believe that her daughter wanted to rob her. The grandchild, Charles, who remained in Hackensack, in carrying out the original intention of her going permanently to Florida, had, on receiving word which he believed to be instigated by the defendant, sent her things, including her valuables, to St. Augustine, justifying what he did by saying that he did not consider the giver of a chattel mortgage should be its custodian, and it is a serious question whether Charles was not right in his judgment, but however this may be, it was not the act of the daughter; her letters from the south immediately acknowledged the receipt of these things, and stated that they are to be taken care of and held subject to her mother's orders. Defendant's taking advantage of his mother's change of feeling towards her daughter, produced by his unjustifiable statement to procure conveyance of her property to him, was a fraud.

2. The transfer of her property was made without opportunity for her to have outside advice. The deed was prepared by the procurement of the defendant. He sent to Hackensack and had it prepared and took his mother to Judge Donohue to have it executed. Judge Donohue was and had for years been his coun-

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