Opinion
10-14-1903
KRAUSE v. KRAUSE et al.
M. T. Rosenberg, for complainant. Samuel A. Besson, for defendant William B. Krause.
Bill by George A. Krause against William B. Krause and others to set aside a deed. Decree setting aside deed unless the grantee will accept the same as his share of the grantor's estate.
M. T. Rosenberg, for complainant.
Samuel A. Besson, for defendant William B. Krause.
PITNEY, V. C. The complainant and the defendant William B. Krause are executors and trustees named in the will of their father, Gustave Bernard Krause. The hill is filed by the complainant both in his individual capacity and in his capacity as executor and trustee against the defendant William.
B. Krause in the same capacities. The other defendants are interested as beneficiaries under the will, and are made parties for that reason. The object of the bill is to set aside a deed of conveyance of a house and lot situate in Jersey City, N. J., made by the decedent to William B. Krause on the 2d of May, 1900. The decedent by his will devised all his property to the complainant and the defendant William B. Krause in trust, with power of sale; and, if the deed be set aside, the house and lot will pass under and be subjected to the trusts of the will. The complainant and all the defendants are beneficiaries under it. Hence the bill is avowedly filed by the complainant in his Individual capacity, and also as executor of and trustee under the will; and the prayer is not only that the deed may be set aside, but that the defendant William B. Krause may be decreed to account for the rents and profits which accrued and were received by him, if any, since the date of the conveyance. Three grounds are relied upon for this relief: First, that the decedent for a considerable period before the execution of the deed had been under the influence of his son William, and was at the time advanced in years, and, by reason of his age and of incipient senile dementia, weakened in mind to such an extent as to render the influence of William undue and effective in the execution of the deed; second, that the deed was testamentary in its character, and intended to take effect only after the death of the testator, and that no life estate was reserved, either in tne conveyance itself, or by any collateral instrument; and, third, that the effect of the conveyance upon the disposition of the testator's estate was and is to seriously disturb his clear intention as to the distribution thereof among his descendants. Evidence was given in support of these several grounds, and, in order to properly consider its weight, a somewhat minute and detailed history of the testator and his family, and their relations to each other, is necessary:
The will of the testator was made on the 16th of October, 1886. At that time he was about 65 years old, and had a wife and five children, whom he named in his will, viz., William; Rose Anna, wife of John Martin; Charles Gustave, since deceased without leaving children; Mary Lina, wife of Charles Knodel, who died in her father's lifetime, leaving several infant children, defendants herein; and George Andrew, the complainant herein. He was the owner of three houses and lots adjoining each other, being Nos. 60, 62, and 64 Sherman avenue. No. 62 is the subject of the present controversy. By his will he gave and devised all his real estate and personal property to his executors in trust, first, to pay the rents and profits to his wife during her lifetime, and after her death to divide the same among his children, naming them. And it further provides: "If any such child shall have died before such distribution, then they shall divide the share of such deceased equally among such deceased child's heirs at law." The infant children of Mrs. Knodel take under this clause. The will contains no direction to sell and divide the proceeds, except what may be inferred from the power of sale and the use of the language "upon her death to pay over the principal to my children [naming them in equal shares." At some period after the making of his will he handed to his son-in-law Knodel $2,250 in cash, which was invested by his son-in-law in a house and lot, the title to which was placed in the name of Mrs. Knodel, and at her death (which occurred in January, 1900) it descenden to her infant heirs at law, defendants herein. The decedent, on the occasion of making the deed here in question, stated to Mr. Besson, in whose office it was prepared and executed, that this gift of money to his son-in-law was intended as an advance on account of Mrs. Knodel's share in his estate. On the other hand, Knodel swears that it was a gift out and out to him (Knodel), and the defendant William B. Krause swears that it was a gift to Mrs. Knodel. This evidence came out incidentally, and not in support of any issue in the cause. Of the two married daughters, one (Mrs. Martin) lived in one of the floors of one (No. GO) of the three bouses. The other (Mrs. Knodel) lived in the neighborhood, in the house erected with the $2,250 before mentioned. The son Charles was a ne'er-do-well, and during his lifetime was the source of much grief to his father. The son William, the defendant, learned his father's trade, viz., that of a carpenter, did not marry, and always lived at home. The son Gustave, the complainant, left home to seek his fortune elsewhere, and seems to have been reasonably successful. The testator worked formany years at his trade with Messrs. John and George Runton, brothers and master carpenters, who superintended the building operations of the Hoboken Land & Improvement Company, and who are the witnesses to his will, or, rather, George Runton is one of the witnesses to his will (and to the deed in question), and George and John Runton are witnesses to a codicil which provides simply that his executors need not give security. The testator stopped working about the year 1896, and lived with his wife and his son William in the first floor and basement of No. 62 Sherman avenue. His wife seemed to be afflicted with mental disorder, and died in May, 1898. From that time on until his death, which occurred on the 8th of September, 1901, the testator continued to live as before with his son William. For a little more than a year after his wife's death he had a woman, a Mrs. Klose, either staying or living in the house to take care of him. She moved away in the fall of 1899, and from that time on he had only his daughter Mrs. Martin and her children, who lived in No. 60, to minister to his wants. It is proven clearly by a respectable physician, Dr. Gilman, who attended him in January, March, May, and July in 1901, that he was then afflicted with senile dementia. His attention to it was called particularly in July, 1900, when he had recently suffered a slight apoplectic seizure. He then observed a marked difference in his mental condition from what it was when he visited him the previous January. At that time, January, however, his attention was not at all directed to his mental condition. And Dr. Ferris, an acknowledged expert in such matters, upon having the symptoms which were attempted to be established by the evidence detailed to him, gave it as his opinion that he had been afflicted with that disease during a period which covered the date of the conveyance in question, May 2, 1900. Conduct and behavior on his part covering more or less of the period between the death of his wife and his own death were testified to by several witnesses which tended to show that his mind was failing; that he became childish and more or less helpless, that he failed to recognize people, and thought that all his children were dead, except William, and that he was unable to sit out the funeral of his daughter Mrs. Knodel, which occurred in January, 1900, and was obliged to be taken home in a carriage before the services were over; and that he acted on many occasions like a child. These circumstances were narrated by his daughter Mrs. Martin, and her daughter, a girl 12 or 14 years old, and two or three other witnesses, and also by the complainant, who testified that at the death of his mother in 1898 it was a recognized fact in the family, including William, that his father was becoming incapable of managing his affairs, and that he proposed to his brother AVilliam that his property should be taken out of his possession by consent, and somebody appointed to take care of it, and see that he enjoyed the proper comforts of life. The complainant was dissatisfied with the mode in which his father was living, and tried to improve it. I am unable to avoid the belief that the complainant was sincere in his notions on the subject of his father's capacity. He gives the particulars of his father's conduct upon which he relies. He swears that his brother admitted his father's incapacity, and his sincerity in that behalf is manifested by a letter which he wrote his brother on the 24th of August, 1898. In that letter he complains that his father is left without proper attention, that he is subject to fainting fits, and that he is liable to be imposed upon and deprived of his property by designing persons; and he charges that his brother, who claimed the right as oldest son, is not the proper person to protect him in that behalf, and that he uses this language: "As you say, father is unfit to care for his own Interests and you would prevent him from disposing of his property if he attempted It, it naturally follows that he cannot see to it that his affairs are properly managed by his son, who does as he pleases and holds himself accountable to nobody. After a piece of real estate is deeded to a purchaser it is a very difficult matter to get the transaction annulled through the courts. If it were not for the possible annoyance to father (although in the end it would be a positive benefit to him I am sure) I would at once make application to the courts, but if we can all agree without that on some friendly arrangement I would much prefer it." I think it is impossible not to believe that the writer of that letter felt that his father needed protection against designing persons. The defendant William informed his father that the complainant thought he was substantially crazy and unfit to take care of his affairs, and that naturally gave the father some feeling against the complainant, and produced an effect in the matter of the making of the deed which I will refer to later on. The immediate effect of the letter was that the father a few days afterwards executed a sweeping power of attorney to his son William, authorizing him to manage his real estate, collect the rents, and pay the taxes, and look after the repairs, etc.
Complainant swears that William claimed the right, as the oldest son, to manage his father's affairs and act as his guardian. 1 think the evidence of the complainant is reliable. I think the evidence of Mrs. Martin, so far as it goes, is also reliable. I place confidence in it from her manner on the stand, notwithstanding an attempt to show her unworthy of credit. The same is true of the granddaughter Lena Rose Martin. Other witnesses swear that they saw nothing unusual in the behavior or conduct of the deceased.
The proof is clear that the testator hadfor many years intended that his son William should have the house in which they lived, No. 62, and it is an established and admitted fact in the case that that house was considerably more valuable than either of the others, No. 60 or No. 64. He expressed his intention to both the Messrs. Runton. The evidence of Mr. John Runton is very clear that the old gentleman said he intended to leave that house to William, and gave sensible reasons therefor. The witness used the word "leave." Mr. George Runton said he expressed his intention to give one of these houses to William, his boy, and he said that to Mr. George Runton in connection with the fact that his son Charles, who predeceased him, had been troublesome to him, while "Bill" had always been a good boy. And it is fair to infer that when he made these remarks as to his intention Charles was still living, and that his will had already been made, so that he had only three houses to divide between five children. Whether at the time he made these remarks be had advanced the $2,250 to his daughter Mrs. Knodel does not appear.
On this topic of his desire to give the house to William we have the evidence of Mrs. Martin. Evidence was given by two witnesses that she had stated to them that her father had said and it was understood in the family that her brother William was to have No. 62. Mrs. Martin, in reply to this evidence, swore that she had never had any conversation with one of those witnesses in regard to the matter, but she did have such a conversation with the other one. She says that she told her that her mother often said that Mary Knodel had had her share, and that there were three other remaining children, and she would like each one to have a house (there were three houses), and she thought she would like Billy to have the middle house, because it was the most valuable. That is all she ever said. And she swore that that was the fact—that she had always heard her mother say that Mary had had her $2,250 for her share, and that there were three children left, and each one should have a house, and that William should have the middle house, because it was the best, but that she did not hear her father speak of it.
I come to the conclusion on this subject that the probability is that at and before the time the deceased executed the deed in question his desire was to divide his property equally among his four children, considering, however, the money advanced to Mrs. Knodel as her share, and for William to have as his share No. 62, which would leave Nos. 60 and 64 to be divided between the complainant and Mrs. Martin. This would be a reasonable and just division of his property, especially in view of the fact that Mrs. Martin seems to be the most needy of all his descendants.
There is evidence that he had taken some dislike to Mrs. Martin because her little boy, as he seemed to believe, had thrown stones at him in the back yard, and that his mother, Mrs. Martin, had not conducted herself in the matter of the care of the back yard to suit his fancy. I am not at all satisfied that there is any foundation in fact for either of these grounds of dislike. If there was any dislike for Mrs. Martin, it was, in my judgment, wholly without any reasonable foundation, and its existence shows that either his mind was unbalanced, or that he had been the subject of an undue influence against her. The state of his mind toward the complainant has already been alluded to. He was also of the Impression that there was an understanding in the family that the $2,250 advanced to Mrs. Knodel would be counted as a part of her share in the estate. I am also of the opinion that his mind was so far weakened by an incipient disease that he was easily influenced by his son William, who had every opportunity to influence him. The evidence also satisfies me that the deceased feared that the complainant would contest his will, and that he had the very common notion among uneducated persons that a deed was less liable to be successfully contested than a will. At the same time he had an impression that in order to carry out his wishes a will might be necessary. In this state of his mind, we find him on the 2d of May, 1900, coming with his son William to the office of Mr. Besson in Hoboken, and, according to Br. Besson's evidence, bringing with them Mr. George Runton, who had, as we have seen, witnessed both his will and codicil. Mr. Runton was employed at the office of the Hoboken Land & Improvement Company. His bringing or sending for Mr. Runton is, 1 think, a significant circumstance. The three, according to Mr. Besson, viz., the testator, his son William, and Mr. Runton, presented themselves to Mr. Besson shortly after 9 o'clock in the morning. This is Mr. Besson's recollection. On the contrary, both Mr. Runton and the defendant William swear that Runton did not accompany the old gentleman to Mr. Besson's office, but that the father and sou came there together; that Runton had previous notice that he would be wanted at Mr. Besson's office; and that he was sent for and appeared there after Mr. Besson, as we shall see directly, had left, but in time to witness the execution of the deed in question. I mention this discrepancy between the evidence of Mr. Besson and that of William Krause and Mr. Runton as bearing on the reliability of Mr. Besson's recollection of the circumstances. Further, in reading and considering his evidence, it is to be remembered that he bad no previous acquaintance whatever with Mr. Krause, except what had arisen out of the preparation of the power of attorney of 1898. He had simply, as he swears, casually seen, without conversation, the grantor working for theHoboken Land & Improvement Company years before that period; and, further, that he was, from the inception of the disputes between the brothers which resulted in this suit, the counsel of the defendant; that he had prepared his answer and defense, and had, up to the moment of his going on the stand as a witness, conducted the trial quite alone. The counsel who examined him was acting in a mere perfunctory manner, and took no further part in the trial of the cause. Moreover, he was testifying to a conversation which had occurred 2% years previously, and nearly 2 years before he had any occasion to recall it and fix it in his memory.
I will give Mr. Besson's account of the interview in his own words:
"A. It was on the 2d day of May, 1900. I got to my office about nine o'clock, and probably ten minutes afterwards Mr. Bernard Krause and Mr. George Runton came in together [he omitted to state that William B. Krause, the defendant, was with them]; and that morning I had a case set down in the quarter sessions court to defend a boy for larceny. His name was Haus. I had to be up there at a little after ten. Judge Blair generally began his court at half past ten. And Mr. Runton and Mr. Krause told me they had come to get a deed drawn. Mr. Krause came into the middle room, where my partner's desk is, and sat down in a chair there, and told me that he wanted to have a deed drawn from him to his son William of a house and lot that he owned on Jersey City Heights, and he said he expected to have some trouble about it with his son George; that his son George would dispute his rights to make the deed; and he wanted me to take care that it was done all right, so that it would hold. I asked him then what grounds he supposed his son would make trouble on, and he said that, as far as he could understand, he supposed that he would do it because he was so old. I then took him into my own room—the third room, where my own desk is—and shut the door, and sat down with him there, and told him to tell me all about it. I wanted to see for myself what condition he was in, and whether he was competent to make a deed or transact any business; and I asked him questions about how many children he had, and how old he was, and where his children lived, and their names, and whether his wife was living or dead, and what her name was, and how old she was, and also about his property, where it was, and how much he had, and how it was situated, and he told me—gave me very clear satisfactory answers; and I asked him why he wanted to make this deed to William, and he said it was because William had always been a good, dutiful son to him, and always helped him out; when he needed any money, had been willing to advance him money, and had done so, and had paid the insurance premiums on his insurance (life insurance), and had paid taxes for him, and repairs to his buildings, and had always been kind to him and taken good care of him in his old age; and his son George, he said, had gone away from home when he was young, and had paid very little attention to him, seldom come home to see him, and only stayed a few minutes when he did come; and he wanted to give this house and lot to William because he felt that it was due to William; that it was an obligation resting on him to give William something for the attention and kindness ho had shown him, and for the moneys he had advanced to him different times. Then he told me that he had made a will, and I asked him about when he made that will, and what the provisions of the will were, and he told me, substantially about the same as the will reads, and incidentally mentioned that his daughter was dead when I asked him about her, and told me that she had had some money (I think about $2,200 or $2,300, something like that), that he intended should be taken out of her share of his estate when it was divided; and he asked me whether I thought he had better make his will over, or whether he had better make this deed, and I told him that, if the will suited him the way it was, I didn't see any reason for making it over, and he said it suited him the way it was; and I asked him then about this daughter—whether he had any arrangement made with her, that she couldn't claim the whole amount of her share of his estate without this deduction; and he told me that all the family were satisfied; there wouldn't be any trouble about that, he said; that be had it understood with them that that was to be deducted from her share. Then I told him there was no need of making his will over, if that was settled, and he said it was. Q. By the Court: Well, but didn't you learn that there were infant children—that she left infant children? A. I don't think we spoke much about them. And I told him I would have the deed drawn then, and I asked him to show me which property it was; and he took the deed, the old deed, out of his pocket, and opened it, and showed me the number of the lot that he wanted me to draw the deed for. The deed that he showed me contained, I think, two lots, and he picked out one, and told me I would have to draw a deed for that one lot to William, and I looked at the name in the old deed he had—had been conveyed to him—the spelling, and I took it out to Mr. Spohr, my partner, and told him to draw the new deed, and use the same spelling of the name that was in the old deed, by which it had been conveyed to Bernard Krause. And by that time it was about time for me to start for the courthouse. I couldn't wait any longer. And I told Mr. Spohr to fix up the deed, and have him sign it and witness it; and I went off then, and went up to the courthouse, to attend to that criminal case."
Cross-examination: "Q. Now, when youspoke to him about his property, did he say that he had made a will, or did you ask him whether he had made a will? A. He told me he had. Q. Did he volunteer the information? A. Yes, sir. Q. And he asked about this deed with reference to his will, did he? The Court. In connection with the will? A. Well, he spoke about It; he spoke about the deed first. Q. And having spoken about the deed, he then said he had made a will? A. And he told me he had made a will. Q. And then asked you whether or not he had better make a new will or deed? A. Yes, sir. Q. And you advised him, under the circumstances, it would be better to let the will stand, and make a deed? The Court. He said if the will suited him. Q. If the will suited him? A. He said this: He didn't want to make any will if he could help it, because the will he had made he had made in 1886, and he was younger then, and he thought nobody could interfere with that, and, if he made one now, he said that his son George had threatened to set it aside, and he didn't want to have it set aside, he said. Q. And so instead of that he preferred to make a deed? A. And he said he would rather make a deed if I thought he could make one that could hold. Q. And you told him you thought he could make one that could hold? A. After I talked to him, felt satisfied that I knew what he was at—that he was competent to do business—I told him I thought he could. Q. By the Court. He told you how many children he had? A. Yes, sir. Q. By the Court. He made no mistake about it? A. No. Q. By the Court. You haven't repeated what he said. Did he tell you he had George and William and Mrs. Martin, and that Mrs. Knodel had died? A. Well, yes, I think he did. I think he told me that. Q. By the Court. Did you understand from his will that Mrs. Knodel's children would take her share? A. I supposed so from what he told me. Q. By the Court. You learned from him she had children? A. Yes, sir. Q. By the Court And of course you inferred from that that her children would take her share? A. Yes, sir. Q. By the Court. Now, what troubles me, Mr. Besson, is this: How could you rely upon his statement that there was a family understanding that the $2,200 should come out of her share when she left children? How could there be a family understanding with young children? A. Well, this money, as I understood him, had been given to her when she was living, and I didn't know what arrangements they had, only from what he told me. Q. By the Court. He told you that that was to come out of her share? A. He said that it was all consented to by all the family. Q. By the Court. How could it be consented to by infants? A. Well, it was consented to by the mother before she died. Q. By the Court. How could that bind the infants? A. They didn't have any share until— Q. By the Court. They would have a share directly under the will, wouldn't they? A. That didn't occur to me at the time. I supposed it was all right. Q. By. the Court it didn't occur to you at the time that, by making a deed instead of a will, that Mrs. Knodel's children would get $2,200, or three-quarters of it more than their grandfather meant they should? A. No, it didn't strike me at that time. I thought he had the thing all fixed, he said. Q. By the Court. How come he to mention that $2,200 to you then at all? A. He told me that she had had that money, and he expected it to be taken out of her share, he said—so understood. * * * Q. Did he tell you why he thought that George would make trouble for him? A. Yes, sir; he said that George had already threatened to take his property out of his hands, I think he told me, and had threatened to bring a suit after he was dead. Q. Did he tell you who had told him that? Did he tell you who had said so? A. No. Q. That seemed to be uppermost in his mind, did it? He thought George would contest his will? A. He said he was afraid he would. Q. And for that reason he preferred the deed to a testamentary disposition. Is that so? A. Yes, sir. * * * Q. By the Court. Did he say anything about his daughter Mrs. Martin in this conversation? A. Well, he told me her name. Q. By the Court. But didn't say anything about her? A. Didn't say anything further about her. Q. By the Court. Did you call his attention to the fact that the giving of this property to William would reduce her share? A. Yes, sir; I asked him about the rent of it, how much rent he had. I had an idea in my mind he ought not to give it away if it was going to make his income so small that it wouldn't support him, and I got him to tell me what the whole income was, and how much the income of this house William was to have was, and how much he would have left, and I wanted to see whether he was giving everything away or not. Q. By the Court. But did you call his attention to the fact that the giving of this to William would reduce the shares of his daughter Mrs. Martin and the children of Mrs. Knodel, as well as the share of George? A. Yes, sir; he spoke of that. He said it would make theirs so much less, he said, but he wanted William to have that much more, he said, because William had helped him. Q. In what words did he put that when he made that statement you have just made—that he wanted William to have more than the others? How did he say that? What was his language? A. About the way I said it now; just as I said it, as near as I can remember. I couldn't give you his exact words now. It is too long ago. Q. Are you quite sure that when he spoke of that he wasn't speaking— Was it the question of giving the house in addition, or was it the question of additional value that that house had over the other houses? A. He didn't say anything about whether it had any additional value or not Q. Didn't you know infact that it was the most valuable of the three houses? A. No; I didn't know it. Q. Didn't he say so to you at the time? A. I don't think so. Q. And you don't know that when it was said to him—when you said to him that that would be giving William more than the others—that it meant that he was getting more in value, and not more in specific property, do you? You don't know whether that was the meaning of it or not, do you? A. Well, he understood from what he said to me that William was getting more in value than the rest. Q. It was more in value, but you don't know whether he meant more in specific property? The Court. William would get a quarter of all that was left? A. Yes, sir. Q. By the Court. Did he understand that? A. He understood that. Q. What did he say to you to indicate that he understood that? A. Well, he told me that those three houses were there, and, if he didn't do this, he said they would be divided equally, and he said he wanted William to have that one house, and then to have the same share of the rest of his estate as the other children. Q. Did he say, 'I want William to have the same share of my estate as the other children, after giving the house'? A. Yes, sir; X think he used about those words. Q. Did you say that, or didn't you say to him, 'Then do you want him to have the house, and then to have the same share as your other children'V Didn't you say that, and he say 'Yes' to that? A. I think I told him, 'Now, do you understand if I make this deed that William is going to get this house, and he will have the same share as your other children of what is left. I want you to understand that.' I think I told him that, and he said 'Yes,' he understood that; he wanted him to have that that way. Q. Did he say 'Yes,' or simply nod his head? A. He spoke more than 'Yes'; he said he understood that, and he wanted William to have that house and lot. Q. What he said then was, 'I want William to have that house and lot,' and that was all, wasn't it? A. And his share, he said, besides. Q. His share of what? A. Of the rest of his property. Q. Did he say, 'I want him to have that house and lot, and his share of the rest of the property'? A. Yes. sir. Q. Or did he say, 'I want him to have that house and lot, and his share'? A. 'His share in the rest of my estate,' or 'property.' I don't remember the words. Q. Did he use those words? A. I don't know whether he used those exact words, but that is the idea he gave me to understand."
Now, this evidence, in connection with the other circumstances of the case, makes it quite clear that, as before stated, the decedent entertained the notion that a deed of conveyance was more difficult to attack and set aside on account of mental weakness than a will, and hence he preferred a deed, but nevertheless he understood that it might be necessary and proper for him to make a will; and either he, or some one for him. had previous to his coming to Mr. Besson's office given a notice to Mr. Runton that he might be wanted at Mr. Besson's office; that Mr. Besson, although informed by the deceased of the advance of $2,250 to his daughter, did not consider the importance of having the status of that advance put beyond all dispute by a new will or codicil; and that he did not inform the decedent that, if he was competent to make a deed of conveyance, he was also competent to make a will. And it is a matter of regret that the visit to Mr. Besson was made at a moment when he felt under pressure to dispose of the matter in hand in time to be enabled to attend to his engagement in Judge Blair's court, and manifestly acted without careful and deliberate consideration. For I cannot but think that, if he had been able to devote more time and thought to the matter, the result would have been a will, instead of a deed, which would have put the intention of the decedent beyond all doubt, and left no room for contention, as a matter of law and fact, that the money advanced to Knodel was in point of fact an advance upon the share of his wife in his estate. And further, the detail of taking instructions for the will, if done in the careful manner which it should be done, would have determined beyond all peradventure the question whether this old gentleman wished that his son William should have the house and lot here in question, over and above an equal share with the other children in his estate, or whether he was to take that as his share in the estate, and allow the balance to be divided between his other children. And Just here, in considering this, which is the crucial question in the case, it must be borne in mind that his will made a perfectly equal division of his property among his children, and that he declared to Mr. Besson that "the will, as it stood, suited him." Now, in view of these considerations, I feel constrained to say that taking all the evidence of Mr. Besson in connection with the other evidence in the case, and notwithstanding the explicit language of that gentleman on the stand, I had serious doubts at the hearing, which have not been removed by a careful re-reading of the evidence, whether the old gentleman understood the actual effect upon the distribution of his property of the conveyance he was making, taken in connection with the will. He was, as we have seen, advanced in years, 78 or 79 years old, feeble in body and mind, and more or less affected in its early stages by a disease known as "senile dementia." It was easy for one in that condition of body and mind to fall into error in that matter. He might well think, and in my judgment the probability is that he did think, that the giving to William the title to the lot by deed in his lifetime would be treated as an advance on account of his share in the estate under the' will. That was clearly his opinion as to the gift to his daughter, and yet I am constrainedto say that under the evidence of her husband and of William, given incidentally in this cause,' it is doubtful if the expectations of the testator will be realized. He was, moreover, and had been for over three years, subjected to the uninterrupted and continuous influence of the grantee of the deed. Now, under these circumstances, it is perfectly clear that the burden of proof is on the grantee to show to the satisfaction of the court that the grantor did understand and did wish that the grantee should have the house and lot conveyed by the deed, in addition to an equal share with the other devisees in the grantor's estate. Upon that question the only affirmative evidence is that of Mr. Besson, and, for reasons already stated, I am not satisfied that the grantor did so understand.
It remains to consider what remedy the complainant is entitled to. It is conceded that the three houses in question comprise all of the real estate which the grantor owned at his death. The inventory of his personal property, signed by both the executors, comprises two items, viz., $250 of cash in bank, and $2,250, with interest, "amount of claim against the estate of Mary Knodel, deceased." The two houses, Nos. 60 and 64 Sherman street, were shown to rent for $20 each per month. The repairs, water rents, taxes, etc., are shown to be heavy, so that they can hardly be treated as worth much more than $2,000 each.
I think justice will be done by a decree that the conveyance in question shall stand, upon condition that William will accept it as his share in the estate under the will; otherwise that it be set aside.