Opinion
07-12-1923
HICKMAN v. HICKMAN.
Warren Dixon, of Jersey City, for complainant. Horace E. Barwise, of New Brunswick, for defendant.
Suit by Mary Hickman against Clifford M. Hickman, to set aside a conveyance of real estate. Decree for complainant.
Warren Dixon, of Jersey City, for complainant.
Horace E. Barwise, of New Brunswick, for defendant.
BENTLET, V. C. The bill in this suit is filed by a woman now in her eighty-ninth year, and sets out that while living alone in the city of New Brunswick she executed a conveyance, absolute on its face and irrevocable, to the defendant, her son, a young man about 32 years of age of all her property, consisting of a house in the said city, for the sum of $1 and other good, valuable, and sufficient considerations. The deed did contain a clause reserving to the grantor the right to occupy the premises? or to collect the rents, issues, and profits thereof during the term of her life; that she had a sum of money on deposit with a bank in New Brunswick, shown on the hearing to have been $601.12; that the defendant, on April 2, 1918, persuaded the complainant to permit him to take charge of her property and effects, and induced her to sign certain papers which she subsequently learned were deeds and a contract to convey; one of these deeds being the one referred to above, the other deed being dated February 8, 1922, to five persons named Paszanat, which latter conveyance is not attacked.
The bill then charges that the complainant's execution of the firstmentioned deed was without consideration and that the defendant took thereunder, as trustee for the complainant, and it prays, among other things, that an account may be taken and a trust Impressed upon the proceeds of the conveyance to the Paszanats, and that the defendant transfer the purchase-money mortgage taken in his name from the said Paszanats, and to return all moneys now in his hands belonging to the complainant.
The complainant, while a very old woman, testified very clearly that she did not realize the consequences of her act when she conveyed her property to her son, thinking that it Was only for the purpose of so arranging her affairs that the defendant might take care of the property for her. There was executed by the defendant, and simultaneouslywith her conveyance to him, a declaration of trust to collect the rents, issues, and profits of the said premises, and after the death of the complainant to pay all of the charges against it and pay over the surplus to his brother, Horace Hickman, during his life, and thereafter to hold the proceeds thereof in trust for the benefit of his own two daughters, grandchildren of the complainant, and providing for the payment of the fund to them upon attaining the age of 21, reserving the right to make sale of property, in defendant's discretion, and to execute any necessary conveyance therefor.
The hearing developed that a most rancorous hatred exists between the defendant and a second brother who was referred to as John Hickman. With utter disregard of the feelings and comfort of their mother, they seem to be actuated each by the strongest desire that the other shall not get any of their mother's property, and each attempting to take the practical course of getting it, or as much as possible, for himself.
It appears that prior to the execution of the conveyance that is assailed by the complainant her son, the defendant prevailed upon her to call upon a solicitor of this court, a man of the highest standing in the city of New Brunswick. It also develops that this solicitor had been acquainted with the defendant for many years and had professional relations with him in representing the defendant's employer. I do not mean by these observations to cast the slightest reflection upon this member of the bar, but I think that it was unfortunate that the defendant should have Induced his mother, in a transaction between them, to have the necessary instruments prepared by this particular member of the bar. It is true that he had shortly before drawn her last will and testament, but apparently this son was then seeking to secure the action of his mother that he subsequently accomplished. Even in the absence of any improper motives or action by the solicitor, It would be exceedingly dangerous to permit instruments drawn by him, in however good faith, to operate to strip this aged woman of all her little remaining property. It must be apparent to any one that this was a combination of circumstances that might have misled her advisor. It is clear that the most careful practitioner might have been actuated by information or instructions given by the defendant. He was the complainant's son, a man who presents an attractive appearance, and it would be indeed a highly suspicious mind that would question his integrity in attending to the affairs of his own mother.
The will Just mentioned provided for a disposition of the complainant's property practically the same as that already referred to as the provisions of the declaration of trust but, of course, the will left it in her power to change the terms thereof and, still more important, did not strip her of her property during her lifetime.
A gift between persons occupying confidential relations towards each other is always jealously scrutinized by a court of equity, especially when attacked by the grantor, and, unless found to have been free, voluntary, and with a full understanding of the facts, will be invalidated. I think it is clear that such misrepresentation was made to this Infirm old woman as to render the transaction highly inequitable. She thought she was clothing the defendant with the authority to attend to the routine matters required in the handling of her small property. Of course this being so, when her son secured her signature to the conveyance to him he cannot successfully resist her demand that so much of her property as is left be returned to her. Furthermore, the doctrine expressed in Haydock v. Haydock, 34 N. J. Eq. 575, 38 Am. Rep. 385; Slack v. Bees, 66 N. J. Eq. 447, 59 Atl. 466, 69 L. R. A. 393; and Albert v. Haeberly, 68 N. J. Eq. 664. 61 Atl. 380, Ill. Am. St. Rep. 652, is not fulfilled by the object of her bounty sending an infirm and aged grantor to a lawyer of the grantee's choosing. By no stretch of the Imagination can that be considered having the benefit of independent advice that is necessary.
When, subsequently to the making of the deed, she executed, on February 8, 1922, one to the Paszanats and those parties gave back a purchase-money mortgage for $2,500 to the defendant individually, he took that mortgage as trustee for the complainant and must, upon her demand, transfer it to her. So far as the cash is concerned, the defendant having received $601.12 must return that amount to the complainant, less the sum of $297.30.
I will advise a decree in accordance with the foregoing conclusions.