Opinion
01-05-1912
WARE v. MULFORD et al. MULFORD'S EX'RS v. WARE.
George Ebner and John W. Wescott, for Casper G. Ware. Hampton & Fithian, for Melissa Mulford's Ex'rs. James S. Ware, tor sundry creditors.
Bill by Casper G. Ware against Francis B. Mulford and others to foreclose a mortgage, and bill by Melissa Mulford's executors against Casper G. Ware, to set aside an assignment of mortgage, heard together. Decree for the executors, setting aside a gift made by their testatrix.
George Ebner and John W. Wescott, for Casper G. Ware.
Hampton & Fithian, for Melissa Mulford's Ex'rs. James S. Ware, tor sundry creditors.
LEAMING, V. C. I am convinced that this case is controlled by the principles defined in Slack v. Rees, 66 N. J. Eq. 447, 59 Atl. 466, 69 L. R. A. 393, and Post v. Hagen, 71 N. J. Eq. 234, 65 Atl. 1026, 124 Am. St. Rep. 997.
As pointed out in the cases cited, the rule requiring independent advice to support a gift of the nature, and under the circumstances, of the one here in question, arises from the presumption that a donor, circumstanced as the donor in this case, has not appreciated the irrevocable character of her act, or has not foreseen its legal consequences to herself, unless first fully advised by a disinterested person capable of so advising. The purpose of the rule, as there stated, is not so much to afford protection to the donor against the consequences of undue influence exercised over her by the donee, as it is to afford protection against the consequences of voluntary action on her part, induced by the existence of the relationshipbetween them, the effect of which, upon her own interests, she may only partially understand or appreciate. It necessarily follows that it is not essential to the application of this rule that the donee should seek the gift, or even know of it in advance.
The gift here in question did not include all of donor's property. It left her with a pension of $144 per year and unproductive real estate, in value about six or seven hundred dollars. But the gift comprised the bulk of donor's estate, and was made at a time when it was most needed, and was operative to render her an object of charity.
This view renders it unnecessary to pass upon the claim, made in behalf of complainant, that donor was mentally incapable of making a conveyance of property. It is obvious, however, that the necessity for independent advice in a case of this nature increases as the mental capacity decreases. The evidence discloses that donor was an illiterate woman, and at the date of the gift here in question was approaching 90 years of age, and was suffering from a broken hip, with little, if any, prospect of recovery. The testimony is in almost irreconcilable conflict as to the extent to which her mind had become impaired by age and illness, but, at least, sufficient appears to suggest grave doubt whether she could have adequately appreciated the consequences of what she did, even had she been carefully advised on the subject.
I am obliged to advise a decree setting aside the gift.