Brand v. Brand

39 How. Pr. 193

• Court: New York Supreme Court
• Decided: April 15, 1870
• Status: Published

Opinion

Foster, J.

Appeal from a judgment rendered for the; defendants on the report of a referee.

The plaintiff is the father of the defendant, William G. Brand. On the 29th day of January, 1868, the plaintiff, who was then seventy-five years old, executed to his son, the defendant, a warrantee deed of his farm, containing about seventy-three acres, situated in the town of Geddes, in the county of Onondaga, of the value of from $6,000 to $7,000, the consideration for which was expressed in the deed1 to be the sum of $5,636.

At the time the deed was executed, there was a mortgage on the north half of the farm, held by one Irving Brand, for $1,000 and nearly one year’s interest thereon had then accumulated. And the deed executed by the plaintiff contained the recital that tlie conveyance was subject to the payment of that mortgage, which the said William G. Brand was to pay, “ and also subject to the payment of $1,400, said $1,400 to be paid to George S. Brand, one year after the death of the said Ira C. Brand, according to a mortgage given therefor, and also subject to the support and maintenance of the party of the first part, during his natural life, in a comfortable and suitable manner; or of the payment of the said party of the first part, each and every year of the sum of two hundred and twenty-five dollars, in equal quarterly payments from the 1st day of January, 1868, during his natural life.” The deed also reserved to the plaintiff the crop of wheat then growing on the premises, and the right to George S. Brand, (another son of the plaintiff,) to remove therefrom a house which he had erected thereon and in which he then lived.

The plaintiff at the same time executed to the defendant, a bill of sale of stock and farming utensils on the farm, of the value of from $500 to $600, and the defendant executed to the plaintiff a mortgage on the north half of the farm.

The consideration for which was expressed therein at the sum of $1,400, and was stamped with an internal revenue stamp of $1.50, and conditioned “ to pay, or cause to be paid to the party of the second part, or his certain attorney, heirs, executors, administrators or assigns, the sum of fourteen hundred dollars, in one year from the death of the said party of the second part, and also subject to the support and maintenance of the party of the second part, during his natural life, in a comfortable and suitable manner, or for the payment to the said party of the second part of $225, in quarterly payments from January 1st, 1868, during the natural life of the said party of the second part, which said sums and conditions herein named, the said William G. Brand hereby covenants to pay and perform.”

No other obligation or security was given by William G. Brand to his father, and no pecuniary consideration was paid by him; and there was no legal indebtedness to him from the plaintiff existing, when the said conveyances were executed. Soon thereafter, the plaintiff tendered to William G. Brand, a satisfaction of the mortgage and demanded a re-conveyance of the farm and personal property, alleging that the deed and bill of sale had been obtained by the defendant by reason of fraud and undue influence on his part, but the defendant refused to accept such satisfaction of the mortgage and to re-convey the farm or personal property.

On the 13th of February, 1868; this action was commenced to set aside the conveyances. t

The cause was referred and was tried before a referee, and he subsequently found and reported as follows:

[Here the learned judge stated the report at length. See p, 222, ante.]

Judgment was entered upon the report of the referee, in favor of the defendants, and in accordance therewith ; and the plaintiff appealed. Several exceptions were taken on the trial by the counsel for the plaintiff, to the rulings of the referee, in admitting and rejecting testimony; for refusing to find several matters of fact and conclusions of law, as requested by the plaintiff; and to several of the conclusions of fact and of law, which were found and reported by him; so much of which, as well as such portions of testimony as are deemed material in the discussion of the case, will be adverted to in the opinion.

Before proceeding to the discussion of the questions raised in this case, I propose to advert to the manner in which it has been prepared and argued by the counsel for the plaintiff.

Any important departure of counsel from the line of professional duty, occurring in an oral argument, can be most properly noticed at the time when it takes place; but when, as in this case, the printed points and brief of counsel contain matter highly disrespectful to any member or officer of the court, and inconsistent with that courtesy, or at least civility, which should always be observed between the court and the bar, and more especially when the introduction of such matter is entirely uncalled for, and not warranted by any thing which has transpired ; and where the printed points properly form part of any report of the case; it is the duty of the court to express its views of it in such form that they, too, may become a part of such report. To do less than this might leave the impression, when offensive matter forms part of the report, that such unprofessional proceeding of counsel is countenanced by us.

While it is the right of counsel to canvass freely and thoroughly, all the findings of fact and conclusions of law, either of a referee or judge, and to point out and expose all errors which they suppose have been committed on a trial, all this can be done without the least indecorum—without giving offense to any one—without any exhibition of ill temper or spleen—and certainly, without evincing an intention to be personally disrespectful to the officer whose decisions are being reviewed.

The points of the plaintiff’s counsel are subject to all these objections. The instances which they present are too numerous and extended to warrant the insertion of them here; but they leave no doubt that the counsel was not actuated solely by the desire to correct any errors which the referee had committed; and the tone and manner in which he argued the case, furnished additional evidence that he had other purposes to subserve.

A referee—especially when he is a justice of this court— can only be appointed by the united choice of both parties, and it is very unjust, as well as uncourteous and disrespectful, for the unsuccessful party to assail his motives, either by direct charge or insinuation, unless there is the most satisfactory evidence to sustain such imputation.

In this case there is not one circumstance showing, or tending to show, any partiality, bias, or leaning of the referee towards either party, and most clearly all that could be claimed is that he may have committed mistakes in his decisions.

We can no more countenance any wanton attack upon a referee who is not, than if he were, a member of the court. But it is of some consequence that the counsel, when he prepared his points, knew that the referee would be a member of the court to which they would be presented; and if the wrong towards the referee, as such, was no greater than though he had not been a member, the indecency of it was increased by thus thrusting in his face the insinuations which he had made against him.

The attack was the more inexcusable from the fact, which we have all observed, that up to the time when this cause was argued, the justice of the court who was the referee, had uniformly and always treated his assailant with much courtesy.

It is objected, on the part of the plaintiff, that the referee erred in excluding the testimony offered by him, to show how the plaintiff was treated by the defendant, after the execution of the conveyance in question, while they were living together on the premises. I think that the referee was right; for while it seems to me, that the offer made was for the purpose of giving proof that the defendant did not treat the plaintiff well and did not conduct towards him as the fair performance of his duty under the deed and mortgage required of him, in the support and maintenance ©f the plaintiff; yet the proposition offered was not so clear gad explicit as to require the referee, without further explanation, to admit the evidence. The offer, in terms, was: yThe plaintiff offers to show how he has been treated by #/iiliam since the deed was given.’; It was not an offer to prove specific acts of abuse, or of the non-fulfillment of the agreement on the part of William, and I think was too general to require the referee to admit it in evidence; because, for aught that appeared, if the offer had been allowed the testimony when given, would not have tended to prove anything improper on the part of the defendants. And besides, if the plaintiff was competent to contract, and did contract with the defendant voluntarily and without any fraud of undue influence on his part, then, whether the defendant performed his contract or not, was immaterial to the issue; and if the defendant did not support him in the manner provided for, the plaintiff could and should have elected to either support himself, and require the payment to him of the $225 per year, or he should have brought his action to compel the defendant to furnish him with such comfortable support and maintenence as the deed and mortgage called for.

That offer and rejection of it has, however, some bearing upon one of the findings of fact, that “It seems he still remains with William, eats at his table, and is hindly treated by him, and his wants carefully provided for.” I do not find any evidence tending to show that the defendant treated the plaintiff kindly, or that he carefully provided for his wants, except the mere fact that the plaintiff continued to live with William; and that, I think, did not warrant the assumption that he was kindly treated or carefully provided for. In one sense, the plaintiff ate at the defendant’s table, in that the defendant,, under the deed, owned the house, but there is no evidence that the defendant supported him there; while, on the contrary, the testimony shows that, even down to the time of the trial, not only the plaintiff, but the defendant and his wife and family, used mainly the products of the farm for the year previous (which belonged to the plaintiff,) for thqir sustenance; and the proof also shows that the household furniture on the place still belonged to the plaintiff. Now, if it was immaterial to show, as I have stated, that the defendant did not perform his agreement, it was equally immaterial that he did perform it. And whether material or not, that assumption could only be based upon proof. I find no proof to support it.

It is clear from the whole case, as presented by the report, that the referee considered the question of competency on the part of the plaintiff, and of fraud or undue influence on the part of the defendant, as a close one; and we must take it for granted that he took the facts so assumed and found by him into the account in arriving at the conclusion not to set the deed and bill of sale aside; in that I think, he erred—first, in assuming the fact without evidence, and second, in giving it any weight in the detertimation of the issue, upon the questions of competency and of fraud or undue influence in obtaining the conveyances.

It is also claimed, on the part of the plaintiff, that the referee erred in admitting the testimony of Mr. Vann against him, on the ground that Vann was one of the counsel for the plaintiff, and could not be allowed to testify to conversations which he had with the witness, or with his copartner, Raynor, when consulting them as counsel.

There were three interviews between the plaintiff and defendant with Raynor & Vann, the first being a few days previous to the execution of the former deed which was afterwards destroyed without being delivered to the defendant, at which time they were acting as counsel for the plaintiff. The second being at the time, when that deed was drafted and signed, and the third at the time, when the papers in question were executed, at which time they were acting for both parties, for Vann testifies, “ at the second and third times both received counsel with reference to the conveyances of the property.” I have no doubt that the law in regard to prohibiting an attorney, or counsel of a party from testifying to the statements of his client against his consent, is the same now as it was before the Code made parties competent witnesses for or against themselves. And although Selden, J., in his opinion in the case of Whiting agt. Barney, (30 N. Y., 330.) comes to the conclusion, that the rule is changed, the case in which that opinion was delivered, I think does not declare any such rule; each of the four judges who concurred with him in a reversal of the judgment of the supreme court, did so on the ground that the communication was made to the counsel, in the presence of the adverse party, and that therefore it was not confidential. The decision of the case, therefore, was made, irrespective of the provisions of the Code, and in conformity with the pre-existing rule, that to be privileged the communication must have been confidential. It was questioned for some time whether the clerk of the attorney or counsel of a party, might not be allowed to testify to communications of the party made to his counsel in the presence of the clerk, on the ground that, being made in the presence and hearing of the clerk, it was not confidential, but it was decided that it was confidential and was privileged. And in that respect also, I have no doubt that the rule is the same now. I think it is a mistake to suppose that such communications were privileged, for the reason that before the Code, parties could not be made witnesses for or against each other, and indeed in courts of equity, the plaintiff could then require a defendant to answer his complaint or bill under oath; and such answer so far as it confessed the allegation of the bill, was conclusive evidence, against the defendant, and so far as it denied such allegations, it was evidence for the defendant, and it required the plaintiff to prove the- contrary, by ¡¡more than the testimony of one witness, in order to overthrow the allegations of the answer. And yet, the communications to counsel'made by a person who was subsequently made defendant in a court of equity, were privileged to the same extent as if the action was pending in a common law court, and the counsel was not allowed to testify to such communications. (March agt. Ludlam, 3 Sand. Ch. R., 45; Crosby agt. Berger, 11 Paige, 377, and cases there cited.) I think the enactment of section 390 of the Code, does not furnish any reason for changing the rule of evidence. In the first place, it is not to be taken as changing the rules of law or evidence, any further than is manifest from what it says. It allows either party to call the other, or to offer himself as a witness. This merely extends to either party a right not before enjoyed. And why should such additional right, clearly defined by the Code, be construed to give him the still further one, of reaching by means of other witnesses, confidential communications made to them, which by the general rules of evidence, in courts of law and equity, were privileged. It is true that the party can at least, partially defend himself from the effects of such evidence, by offering himself to contradict or explain it. 1 do not think, however, that he should be compelled to do so, for it is enough for the other party, that the Code has given him the right' to call his adversary as a witness, and to compel him to testify to any matter or thing that may be deemed material to the issue. I think also, that the recent amendment allowing husband and wife to be witnesses for or against each other, except in certain cases, contains a provision which shows that the legislature has not intended to change the law, as Judge Seldeb seemed to suppose; for in that amendment they inserted a clause to exempt either of them from disclosing confidential communications; and no good reason, I think, can be given why such communications should still remain privileged any more than such as are made to counsel. And again, if communications to counsel are not privileged, and they are competent evidence against the party making them, then in an action after his death, between his personal representatives and another party, they would still be competent, for it is only the party to the action who, in such case is prohibited from testifying to what has occurred between him and the deceased party, while disinterested witnesses are allowed to testify to the acts or declarations of a deceased party, the same as though he were living and party to the action.

I have examined this question further than I should have done, because I am not willing to concede, that the Code has in the least, changed this rule of evidence.

It must be conceded, however, on the authority of that case (and such was clearly the law before that,) that communications to counsel, made in the presence of the adverse party are not privileged ; and of course, Vann was a competent witness to testify to what took place on the second and third interviews had with the plaintiff and defendant; for so far as appears from the case, the defendant was present all the time.

Such, however, was not the case in regard to the first interview; for Mr. Vann testifies that William was not present all the time at that interview, while the com munications of the plaintiff were being made to Mr. Raynor, and he was allowed against objection and exception to testify, as well to what the plaintiff said while the defendant was absent, as what he said while he was present. In this I think the referee erred—communications made to one’s counsel as a conveyancer are privileged. (Greenleafs Evidence, § 241; Cromach agt. Heathcourt, 2 Brod. & Bing., 4; Wilson agt. Troup, 7 J. C. R., 25.) And a large share of the testimony of Vann consisted of what was said by the plaintiff in that first interview.

It is insisted on the part of the plaintiff that the referee erred in admitting Vann to testify, that in his opinion, the plaintiff was competent to contract when he executed the deed and bill of sale; Vann, though not an expert, was the subscribing witness to the deed, and is within the same principle which allows the subscribing witness to a last will and testament, to give his opinion of the sanity of the testator. (Dewitt agt. Bailey, 9 N. Y., 371.) And it does not necessarily follow, as is claimed for the plaintiff, that the question put by the plaintiff’s counsel to his witness, Greorge Greddes, was improperly excluded.

That question was, “ where any fear of difficulty might threaten him or his property, would he in your judgment, be easily persuaded to do any act, dictated by any person he considered a friend ?” Mr. Greddes was not in the proper sense of the word an expert; though he was a man of high character, and actually well qualified to judge, from the continued actions of one with whom he was acquainted, of his sanity, as well as of his competency to’transact business;. but still he was not competent unless he became so in view of the acts and conduct of the plaintiff which he had witnessed as he had testified. And as to this, it depends entirely upon the question, whether after stating the acts and conduct of the plaintiff, and of his family in regard to his business matters, such statements rendered him competent, in connection therewith to express his opinion. And yet one acquainted with him, who should hear his statements of the acts and conduct, and character of the plaintiff, would hardly doubt, that in fact he was more competent to express an opinion of the usual mental strength and capacity of the plaintiff than Mr. Vann was to express an opinion of his condition when the conveyances were executed.

In Culver agt. Haslam, (7 Barb., 314,) the court held that “on a question as to the mental capacity of the grantor of a deed, the opinion of an intimate acquaintance, not a medical man, as to the condition of the grantor’s mind is competent, when connected with facts and circumstances within his knowledge, and disclosed by him in his testimony, as the foundation of his opinion.” And it was held that the value and force of the opinion depend on the general intelligence of the witness; the grounds on which it is based; the opportunities he has had for accurate or full observation, and his entire freedom from interest or bias.

In Jackson agt. King, (4 Cow., 218,) it will be seen that such evidence was received from several witnesses, and while the court did not question' its "competency, it held that the facts proved by the witnesses, did not support the opinion which they expressed.

In Stewart agt. Lispenard, (26 Wend.., 309,) it will be found that the same kind of testimony in regard to the mental capacity of the testatrix was received, and was considered competent by the court for the correction of errors, and in the opinion of the court it is said, “mere opinions of witnesses” says Judge Washington, “as to mental capacity are entitled to little or no regard unless supported by good reasons founded on facts which warrant them.” To this as a general rule, the opinions of medical men may be considered as an exception, (3 Wash. C. C., 587,) and great stress was laid upon such opinions, based as they were, on the facts stated by the witnesses.

In Dewitt agt. Bailey, (13 Barb., 550,) the plaintiff was permitted to take the opinions of witnesses, as to the grantor’s capacity, founded upon the facts disclosed by them upon the trial, and the court held them to be competent. The case was appealed to the court of appeals, (9 N. Y., 371,) and it appears from the report of the case that the precise question on which the case turned was that the plaintiff’s counsel was allowed “to ask the witness whether from what he had seen, and the facts within his knowledge, the old man had capacity to comprehend and transact business?” and the witness answered, “that he had not such capacity.” The court of appeals reversed the decision of the supreme court, and granted a new trial.

The cause was re-tried and again on appeal came before the court of appeals, (17 N. Y., 340,) and it appears from the report, that the same questions on which the case had been previously determined, were not propounded to the witness, but after testifying to the facts within their knowledge, they were asked various questions, calling for their opinions of the degree of his mental imbecility; and the court of appeals held such testimony to be proper, and unanimously limited the former decision of that court “as authoritative only for the doctrine that upon a trial involving the mental imbecility of a testator or grantor, a non-professional witness cannot be asked the broad question whether he considered the party non compos mentis, or, vt hich is the same thing, incapable of managing his affairs.” And in the opinion of the court on page 348, it will be seen that the doctrine that non-professional witnesses, after having stated facts within their own knowledge, may be allowed to give their opinion of the degree of mental imbecility of a grantor or testator.

In the case of Whelan agt. Whelan, (3 Cow., 550,) it appears that testimony was received, that “ the appellant was a man credulous- and easily persuaded to anything by those he supposed his friends; and he might be persuaded to do any act dictated to him, when any fear of difficulty might threaten him or his property.” It does not appear that this testimony was objected to, but it does appear (pp. 572 & 586,) that the court for the correction of errors laid much stress upon it, saying “ it is in proof that the appellant was very credulous and easily persuaded by those whom he believed his friends; that he was easily led by William; that the appellant could be persuaded to do any act dictated to him, when apprehensive that his property was in danger.” I think, upon the whole, that the opinion of Mr. Geddes should have been received and such weight given to it, as the referee should think, under all the circumstances of the case, it was entitled to.

And I may as well add here, for it bears strongly on the next question to be discussed, that the court, at page 572, laid down the rule, and which is applicable to the case before us: “That a contract obtained from one party so much in the power of the other, cannot be maintained 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 Mm to a state of dependence and want.” The proof shows that the plaintiff.had no property besides that conveyed to the defendant, except some $500 or $600 deposited in a savings bank; toe small amount of household furniture, being in the house on the premises in question; a small amount of the products of the farm for the previous year; and the wheat then growing thereon, which had been sown in the autumn preceding the execution of the deed. His habits had, some years previous, been very bad, and had affected his mind, and for many years previous to the time in question, his business affairs had been mainly managed by his wife or his 'son, the defendant. And his wife died in the summer of 1867. He had two children, being the defendant, and his son George, who had a wife and four children, and was in very moderate circumstances, his property amounting to not more than $1,000, and that in all he was indebted to the plaintiff in the sum of about $200, for which he held his notes, and that he had let him have, in addition, from time to time, in one way and another, an amount not exceeding $300 more; and it very clearly appears that, as between the two sons, the defendant was the one most favored, and as against Greorge, had his own way with the plaintiff.

After the defendant became of age he worked for the plaintiff on the farm about six years; during which time he accumulated, from the wages to be paid to him besides his support, about the sum of $1,000; after which he went to Michigan, and remained about one year. He then returned to Onondaga county and rented the premises in question of the plaintiff, for one year, at the rent of $100. He then went again to Michigan; and afterwardsrreturned to Onondaga county in February, 1860; entered into an agreement in writing with the plaintiff, to work for him and manage the farm for him for five years, at the yearly compensation of $180 per year (with his board and washing), payable at the end of each and every year. That agreement was under the seal of the parties, and contained a provision as follows: “The said party of the second part” (William Gr. Brand,) “shall take and have the general and special management of the carrying on of said farm and the exclusive control of all the business belonging to, or in anywise appertaining to, the management, control and carrying on the said farm for said term. The cultivation thereof, as well as the sale and disposition of all produce, of every name and nature, raised or grown thereon during the said term. The buying and selling of any stock, or other personal property, which the said party of the second part may at any time deem proper. The said party of the second part shall, at the close of each and every year during said term, render unto the said party of the first part a true and faithful account of all moneys had and received by him, for or on account of any and all property so sold by him, and of all moneys paid out and expended by him, for or on account of the said party of the first part or his family.”

It was proved by the testimony of George S. Brand, that William, while at work under this contract, told him that he had a power of attorney to do as he was a mind to, to buy and sell and anything else he chose; and the witness further said: “I asked him what that was for? and he said, father was not capable of doing business, and would go to the poor-house, if he did not have some one to manage the property for him.” On the cross-examination the witness repeated the above statement, and also testified that William in speaking of the said contract, said: “he was going to have it so that he could be boss himself.” No part of this testimony was contradicted by the defendant. William G. Brand, id his testimony in reference to this contract, said : “The contract under which I worked, was the only authority I ever had during the five years; I did not exercise control, but worked subject to father’s advice and counsel; I sold the grain; I kept all the money received from the sale of pfoduce until the end of the year; the settlement was with father and mother together; after the first year, I had no settlement until the end of the contract; during the last four years I paid no money to father or mother; I bought father’s clothes, such as was necessary; he never asked for money and I refused.” In the year 1866, the defendant continued to work for the plaintiff for one year, at the price of $300 for his services. He then went west again, and remained there until in the fall before the conveyances in question were executed.

It is not claimed that any pecuniary consideration entered into the making of the conveyances, except such as are specified in the recitals of the deeds, and in the conditions of the mortgage, except that the defendant claims that he was entitled to something for leaving his place in the west, and returning to live with his father. And he claims that it was intended by the plaintiff to secure his own support and maintenance, and to secure the residue of his estate for the benefit of the defendant and of George; and that it was intended by the plaintiff to give him a much larger amount than he meant to give George.

The testimony of Mr. Vann is, that it was the intention of the plaintiff to secure the portion coming to George to his children, and that is the reason alleged by him for not making the $1,400 mentioned in the mortgage, payable thereby to George. But the testimony of the defendant is that the share of George was to be secured to him, and such is the recital in the deed.

Now, nothing can be plainer than that by the conveyances m question, not one dollar was in any way secured either to George or to his children. If that matter had rested on the recitals of the deed alone, the defendant would have taken the estate charged, as between him and George, with an equitable lien thereon in favor of George. But it does not rest at all on such recitals, for in the first place, the recitals in the deed declare that the conveyance is “subject to the payment of $1,400, said $1,400 to be paid to George S. Brand, one year after the death of the said- Ira C, Brand, according to a mortgage given therefor.” And in the second place, the mortgage does not allude to George; but by its express terms the condition of the mortgage is, that “the said party of the first part, his heirs, executors and administrators, shall well and truly pay to the party of the second part, or his certain attorney, heirs, executors, administrators or assigns, the sum of $1,400, in one year from the death of the said party of the second part.” So, too, the equitable lien which would have been created by the recital in the deed upon the whole farm, was limited, not only, as I have said, by the mortgage to the benefit of the personal representatives of the plaintiff, and not to George or his children, but the mortgage narrowed the lien and confined it to "the premises- described in the mortgage alone, being the north half of the farm only; thus releasing the south half entirely from such •lien or claim.

It is also claimed by the defendant, that a part of the portion of the estate which George was to receive, consisted of the aforesaid demands which the plaintiff held against him, being the notes for about $200, and the other advances of nearly $300, and yet no provision was made in this arrangement for giving up or canceling that debt, or any part of it; and the defendant testified that he “advise^ his father not to give up the said notes to George.” In short, nothing was secured to George of any kind, by that arrangement, except to allow him to remove from the premises a dwelling which he had at his own expense, and with the consent' of his father, erected thereon.' ' And this arrangement was so managed with the plaintiff) who, the proof shows, could neither write or read writing, that while at least $3,600 was secured to the defendant, over and above all that was charged upon him either by the deed or the mortgage, nothing was secured to George, and there was nothing to prevent the defendant, if he could induce his father to do so thereafter, from obtaining the whole of the small share which, it is alleged, was intended for George. And it was so arranged that in case the plaintiff should die, without making a further disposition of it, that only one half of that small share would become the property of George, and the other half would be added to the share which was secured to the defendant.

Again, there was, as has been said, a mortgage on the north half of the farm, in favor of Irving Brand of $1,000, and interest had accumulated thereon, at the time of these conveyances, to about $70. The $1,400 mortgage executed by the defendant was on that same north half alone, and the support and maintenance of the plaintiff) or the $225 per year in lieu of it, was, by the terms of the mortgage, made a specific charge on that part alone, and the value of which the referee found to be $1,000. So that while the value of the whole premises, as found by the referee, was $6,000, the north half was incumbered to the amount in all, of $3,470, while the south half was left to the defendant entirely unincumbered. The incumbrance on the north half being at that time more than it was actually worth. But I think the referee overestimated the amount for which the defendant was liable for the support of the plaintiff, when he put it at the sum of $1,000. The estimated life of the plaintiff at seventy-five years, according to the tables, is 4.3-54 years; of course the whole sum to be furnished by the defendant at $225 per year, would amount only to $979; but this sum was not payable then, but in sums of $225 each year; the interest, therefore, on the whole sum of $979 should be deducted for one half of that time, at six per cent., and after deducting that from the principal, would leave the present value of that sum at $850, being $150 less than the referee has estimated, but it would still leave the incumbrance on the north half of the farm at more than one half his estimate of the whole premises.

So, too, the referee erred in estimating the value of the $1,400 to be paid pursuant to the mortgage. The referee has put it at that amount as of the time when the mortgage was executed; but that could not be so, even if the plaintiff had died the next day, for it is not payable, or on interest, until one year after the death of the plaintiff. But according to the tables, his estimated life being 4.354, and it being payable one year after his death, we must cast the interest on the $1,400 at six per cent, for one year and multiply that by the 5.354, and after deducting the product from the $lz400 it would leave the liability of the defendant, therefor only $950, with interest from the date of the mortgage. So that calling the whole farm only $6,000 and the personal property included in the bill of sale at $500, as the referee has estimated it, the defendant had secured to him the sum of $6,500, while all the liabilities-incurred by Aim is $2,870, leaving him the net sum of $3,630.

The referee found that about $2,000 was intended to be secured to George, and he assumed that it was so secured by the transactions between the plaintiff" and defendant.

I have already shown, I think, that nothing was secured for George or his .children. But, in fact, no such sum was either secured or left (independent of the $600 in the savings bank, and which formed no part of the transaction) for any one; for, in making the estimate of $2,000, the referee took into the account (and it is all which he could include) only the said sum of $1,400, which I have shown in fact to be only $950, and the amounts which George owed his father amounting to $500, so that, of all the property taken into the account, William' actually received $3,630 net, and left of that which was intended for George and his heirs, only the sum of $1,450 instead of the $2,000; and that, so far as George’s interests were concerned, instead of being a security, was a mere sham ; he has no title or security for the $1,400—he still owes his father the $500 or $600.

And he has no security that the defendant who the referee thinks, can obtain from the plaintiff whatever he tries to, and gives as one of the reasons why the conveyances should' not be set aside, that it might be worse for him, and that the defendant in such case might get all that he now has, together with the residue of his property. I say George has no security that William will not succeed, if this transaction is allowed to stand, in obtaining from the plaintiff while living with him, the small residue of his property, which by the transaction in question, was intended by the father, for George. If I have correctly stated the legal results of the transaction in question ; how is it possible that the plaintiff, if competent to transact business, and also if not unduly influenced, could ever have consented to dispose of his property by such legal instruments as he then executed? And it is surprising to me that good lawyers, if the object of the parties was what Mr. Vann testifies it was, should have prepared for them a deed, bill of sale and mortgage in the form of the ones which were executed, without anything to secure either to George or his children, any portion of the property. Surely no good lawyer should have prepared such papers for such an object, and it is difficult to believe that any really sane man who was not improperly influenced, would ever have signed them.

The facts which I have referred to, and the several specific facts found by the referee, taken as a whole, appear to me to be adverse to his general conclusion, that the plaintiff was not incompetent to contract, and that it is not proved that the defendant committed a fraud, or unduly influenced him. The referee also found that he was liable to be improperly influenced by either of the sons. I am convinced from what, appears in this case, that the defendant could so influence him. But, though at various times, the defendant was entirely away from him, and George was so situated that he had abundant opportunity, and with the mother, who the case showed favored George, there is not the least evidence to prove that he ever attempted to get- control of his father’s property, in anyway, or to exercise any control over it, or him.

The only thing appearing in the case from which the referee could have drawn his inference is, that during twenty years and upwards, after George became of age, he had of his father in all, the $500 above mentioned, and which was conceded to be a debt due from him to his father, and for a part of which his father held his notes ; together with, the fact that he assisted his father m getting up the first deed to William, before it was delivered, and in his attempt to cause the conveyances in question to be canceled, and although two witnesses testify that the plaintiff said he should let the deeds stand if it had not been for George, and other like statements. Both the plaintiff and George testify that in each instance, the plaintiff came to George complaining of the conduct of William in obtaining the conveyances to be executed, and asking his assistance.

But it is very clear that this case does not disclose that any attempt has been made by George to obtain any diposition of this property in his favor.

Upon the direct evidence of competency of the plaintiff, Mr. Vann, who was the subscribing witness, thought him competent when the papers were executed. It does not appear that he had any acquaintance with him, so as to be able to speak except from what then took place, while to say nothing of the opinion of Mr. Geddes, whatever it may have been, his testimony concerning the acts, conversation and conduct of the plaintiff, several years before that, and on repeated occasions, show in my judgment that his mind was then not only feeble but that it was disordered to a very considerable extent, and no attempt has been made to prove that, since that, as he grows older, the general character of his mind has improved. I think the defendant should not be allowed to claim that-the plaintiff was competent to contract, in so important a transaction as this was. He would nottrust to any will that the plaintiff should make in his favor, because he alleged George would break it. But how could he fear that George would break such will, if the testator was of sound mind, and competent to make it. But stronger testimony than this to show that William did not consider him competent, is to be found in the argument which he obtained for the working of the farm for the five years; for the purpose of being boss himself, and securing to himself among other things, the sole right, not only to sell products and stock, when and how he pleased, but to purchase also as he pleased.

I will refer to one other fact which was established, that the defendant in order to induce him to make these conveyances, told him that George was about to have a committee appointed over him, and urged for that reason the speedy execution of the papers. This was not in any way denied by the defendant, and the failure to deny it, was not from inadvertence, for the plaintiff testified to it three times in his several examinations. If it was untrue it is of itself evidence of falsehood and fraud on the part of the defendant, and also that the defendant must have known that the mind of the plaintiff was very weak. And if it was true, and William did not mean to cheat the plaintiff in the execution of the papers, it furnishes evidence that the plaintiff was considered by George to be then incompetent to manage his affairs; and that the defendant also believed so, and that it was probable such an attempt, if made by George, would be successful. In either aspect it appears to me to be fatal to the conveyances.

A number of other questions are presented by the case, but I am satisfied that this judgment should be reversed, as well upon the questions of evidence which have been adverted to, as upon the findings of the referee; I-think, the case shows a much stronger one for an interference to set aside the conveyance, than was that of Whelan agt. Whelan, (3 Cow., 537, 572;) Brice agt. Brice, (5 Barb., 533,) & Voorhees agt. Voorhees, (29 N. Y., 463, 467.)

The case is still stronger in favor of the plaintiff in regard to the bill of salé. It is perfectly clear to my mind, that the plaintiff only intended to give the use'of the personal property to the defendant, and that for one year only. In regard to that, Mr. Vann testified, that when, the parties came to the office of Raynor & Vann, the plaintiff expressed his intention of giving the personal property to William, and he speaks of this property having been the subject of conversation in the second interview. In this, I have no doubt he was mistaken, he was not the person with whom they consulted. It was his partner with whom they talked, and who advised them what to do, and although Mr. Vann was his co-partner, and doubtless, heard much of what was said, he might well have mistaken as to whether anything was said about the personal property, (except the $600 in the savings bank,) in the second interview, and also whether the proposition to let the defendant have the personal property, occurred at an early or late stage of the third interview; at all events, his testimony in that respect, is in direct conflict with that of the defendant as well as of the plaintiff. Neither of them state that anything was said about this personal property previous to the third interview, or that it was at an early part of that interview, and there is no contradiction between them in the fact that the plaintiff did not propose to give it to him at any time. It nowhere appears from the testimony of William that his father agreed to give him the property, but he says expressly that his father proposed to give him the use of it, and he does- not in any way state the length of time such use was to be given, nor does he even state that in any way, except by the language used in the bill of sale, any intention was manifested to give him the property as his own. And yet, before he was examined, his father had testified, “I told William, I should hang on to the personal property any way,” then he wanted some paper to keep George from suing him for the use of it after I was dead; I asked Raynor if he had got that thing up to keep George óff, and he said yes ; he brought it to me and I signed it; I did not know what it was; George was not there; I sat back and did not say much. Willie would put in before I had a chance; William would not sign any mortgage to me until I signed the paper to keep George off.”

Again he testified, “I had told them at Raynor’s office, that I would not let William have the personal property; then Raynor advised William to buy the personal property, and William did not make much reply; I offered to sell it to him, but he would not buy it, then I offered to give him the use of it for a year; and then he wanted the writing got up to keep George from making him pay for the use of it.”

When William was called as a witness he testified, “I-wanted control of the whole; he said he would give me a deed of the whole, but he wanted to keep the personal property; I told him I could not afford to work and raise grain and keep cattle, hogs and hens, and whenever there was a pound of butter to sell it was his, and he was to have the money; he said then he would give me the use of the personal property ; I told him I wanted something to show that in case he should be taken away, George could not sue me for the use of the personal property; said he would fix it so he could not.” So, that the only testimony there is to fix and limit the use is that of the plaintiff, who states it was for one year, and this is not contradicted by the defendant.

Now1, it is not enough in such a case as this that the bill of sale may have been read to the plaintiff, for it is apparent from the whole case, that the plaintiff would not have executed it, if he had not been improperly led to believe that it only transferred the use of the property for one year.

I think the judgment should be reversed and a new trial granted, with costs, to abide the event.

Morgan, J.

This being an equity case, the exceptions are not to be viewed with the same strictness as in actions at law.

It is supposed that an error was committed by the referee in refusing to allow Mr. Geddes to testify whether, in his judgment, the plaintiff would be easily persuaded to do an act dictated by any person he considered his friend. Mr. Geddes had already been permitted to give bis opinion of the plaintiff’s ability to transact business, and as to his soundness of mind. He had testified that in his opinion, he was a man of inferior mind, badly shattered by bad habits, and that he was never sound in his mind since he knew him; and he gave illustrations to fortify his opinion. It seems to me, therefore, that it was very much in the discretion of the referee, whether the examination should go further and Mr. Geddes be permitted to state his opinion upon a hypothetical case. I have no recollection of any such exception, and while I do not deem it of sufficient importance to call for a new trial, I am ready to acquiesce in the views of my brethren upon the point, and agree to a new trial if they deem it of sufficient importance to call for one.

Another objection is, that the mortgage did not provide for the payment of the $1,400 to George S. Brand. But the deed did make that provision and referred to the mortgage, which was silent on the subject as to whom the payment of the $1,400 was to be made.. In the absence of the condition contained in the deed, it is true the payment of the $1,400 would have to be made to the administrators of the grantor. But the defendant having accepted the deed is clearly bound by the condition, notwithstanding the language of the mortgage. If both are left to operate, then the defendant would be required to pay $1,400 to his brother George, and another $1,400 to the plaintiff’s administrators. But the case is too clear to admit of argumentation, that the language of the mortgage failed to express in full the agreement of the parties, and a court of equity would have no difficulty in correcting it, so as to conform to the condition of the deed, and the real contract entered into between the parties.

A good deal of stress is laid upon the mistake of the referee in estimating the amount secured, to George S. Brand, and a close calculation is made to show that be did not obtain as much by the settlement as was charged to him. I have not called to my aid the Northampton tables, to ascertain what a nice calculation would furnish as the net result of the settlement. It is clear that the referee did not attempt to state the amount with accuracy, nor did the parties when they entered into the arrangement, make any such calculation. A mistake of the referee in that respect in not fatal to the judgment; no doubt it was discretionary with the plaintiff to secure to his son George, any sum he pleased as. his portion of his property; he fixed the sum after a good deal of discussion about it; and it is not for the court to break up the arrangement, because he did not make it larger.

If the plaintiff was not over-reached or misled by the defendant, the inadequacy of the sum has but very little, if anything, to do with the merits of the case.

It is said the referee' has found as a fact, that the plaintiff still lives with the defendant, eats at his table, and has his wants kindly provided for, and yet, evidence was excluded to show the contrary. The evidence set out in the case, does not affirmatively show whether the old gentleman is, or is not, kindly treated by the defendant, but shows that he still lives with the. defendant, and eats at his table. The offer was in general terms to show how he was treated.' If that fact was material, the evidence ought to have been admitted. The offer, however, was not pointed enough to show that the defendant had treated his father unkindly or failed to provide for his wants. But the provision in the deed of settlement, was drawn so as to permit the old gentleman to take his board elsewhere, in case he did not prefer to remain in the defendant’s family. It is very suggestive that the old gentleman still lived with the defendant, and eat at his table, when he could have run over to his son George’s house in a minute’s time, and had his wants supplied. The whole case seems to support the evidence that the plaintiff was not suffering from bad treatment in the defendant’s family. As the offer of evidence objected to, did not necessarily point out any ill treatment in the defendant’s family, it is not of sufficient consequence perhaps, to call for a new trial.

It is also objected, that the fact mentioned by the defendant to the old gentleman, that George was about to institute proceedings to put him under guardianship, is conclusive evidence that the defendant brought improper influence to operate upon the plaintiff, to induce him to make the settlement. '

It does not appear affirmatively that his son George threatened to institute any such proceedings—but it seems to have been taken for granted on the trial, that he had made such threats. The question was not asked George.

Without doubt, such afactif unfounded, or if well founded, if it was used to persuade the plaintiff to do an act which he would not otherwise be likely to do, ought to be sufficient to induce the court to break up .the settlement.

While the evidence does not satisfactorily show that this fact in any manner influenced the plaintiff in making the settlement, it called upon the defendant to show on his part that it was fairly made, and that every opportunity was afforded to the plaintiff to understand the act he was about to perform, and as the plaintiff was coutessedly a weak minded man, and easily persuaded to adopt a particular course of conduct at the instance of the defendant, the court should require the most satisfactory proof, that the act performed was his own act, while in. a condition not only to understand its effect, but sufficiently independent to refrain from its performance if he did not approve of it.

And this brings us to the inquiry whether the evidence of Mr. Vann, the attorney, was admissible to show that the plaintiff was fully informed of the effect of the settlement before it was made; for without,his evidence, I have no hesitation in saying that the settlement ought to be set aside.

In my opinion his evidence was admissible for that pur-, pose. The grounds of objection are fully stated in the case. It appears that Mr. Bichard Baynor drew the papers, and that Mr. • Vann was his partner and heard the conversation between the parties, and read over the papers carefully to the plaintiff. 'There were at least three interviews in which the terms of the settlement were freely discussed.

The first day the bargain fell through, because the plaintiff was unwdlling to give a bill of sale of his personal property. The next day the plaintiff went again to the office with his son Geoi’ge, and canceled the deed, and he afterwards concluded to accede to the requirements of the defendant, and went back again to Raynor’s office, and the writings were completed. Mr. Yann says, he is not sure that William was present all the time the old man was; but no objection was taken that any of the conversations took place in the absence of William. ,

The objection is, that Yann was one of the attorneys of the plaintiff at the time, and the conversations were confidential—and that since the transaction, Raynor & Yann have refused to actas counsel for the plaintiff, on the ground that they were counsel for William. After the testimony was closed, the plaintiff's counsel moved to strike out Yann’s evidence, upon the ground that William received advice from Raynor & Yann, with reference to the conveyance, and acted as counsel for both parties in said interviews, and that the statements of both parties were privileged. Another ground for the motion was, that Raynor & Yann were not the regular attorneys or legal advisers of either party prior to the interviews, but were employed and paid by both parties for their advice and services. And especially because Raynor & Yann must have known from what had taken place at the second interview, that there would be a law-suit on account of George’s hostility to the settlement, and therefore, the statements made at that interview were privileged.

These objections are frivolous, except so far as they involve the question as to whether the statements of the plaintiff were privileged communications. The attorneys were the legal counsel and advisers of both parties at the time, so far only as the form of the settlement was concerned. But it seems Mr. Raynor took it upon himself to advise the old man not to make such a settlement, and suggested that $225 a year was not sufficient for his support.

But no objection is, or can be taken to this friendly admonition. The parties were there to make their own arrangements; and it is an entire misapprehension to suppose that any law-suit was contemplated at the time, or that any statements were made or advice given in expectation of a law-suit.

Nor is there the slightest pretext for saying that any of the matters disclosed by Mr. Yann, were confidentially or professionally intrusted to him or his partner Mr. Raynor, by the old gentleman or by his son William. It would be a waste of time to take up the matters sworn to one by one, in order to show that none of them were confidentially communicated to Mr. Yann. They were not stated to him in order to obtain his advice as counsel, to regulate their future conduct, but to enable him to draw the papers. They were the statements of both parties, and not the secret of either, so as to require concealment. Doubtless, the authorities are not all one way in relation to the admission .of this species of evidence; but since the decision of the court of appeals in Whiting agt. Barney, (30 N. Y., 333,) the law must be considered as settled in this state that the attorney may testify to a negotiation or bargain between the parties, when he had been mutually consulted by them. And so it seems when only one of the parties consults the attorney. (Prouty agt. Eaton, 41 Barb., 410, and see Johnson, J., (p. 416,) as to what was decided in Whiting agt. Barney, (38 Barb., 398,) and subsequently overruled in 30 N. Y., 330.)

. I am clearly of opinion that the case of Whiting agt. Barney, controls this case and. that the testimony of Yann was admissible as to what transpired between the parties at the time of the negotiation in Mr. Raynor’s office.

But there is another ground upon which the evidence was admissible. The plaintiff himself had already testified to the same matters, and thus waived any right, he had to keep the matter secret o.r privileged from disclosure. This is too obvious to be seriously questioned.

At the time of the trial, Mr. Yann had dissolved his connection with Raynor, and had no further interest in the suit; he was the partner of Mr. Fuller, the plaintiff’s attorney, and his evidence was entitled to full credit; he testified without bias, and in such a manner as to command the fullest confidence in his statements. And I think, no one can read his testimony, without coming to the conclusion that the old gentleman was fully informed of the consequences of the act he was about to perform. The subject of the bill of sale was fully explained to him, and led to the abandonment of the settlement the first day; afterwads he agreed to it, and told some of his neighbors that he had parted with all his property. When it is recollected that he broke off the first negotiation, because his son insisted upon the bill of sale, it can hardly be said that he did not know what it was. If he had any capacity for business, he must have known that he was required to sign it before William would consent to enter into the arrangement. After a good deal of hesitation, and without any undue influence, as it seems to me, he consented to sign it, with certain restrictions dictated by himself.

If the case is one where the referee has a right, to find upon the evidence, that the plaintiff was not of unsound mind, it was also a case where I think, he had a right to find, that the settlement was not obtained by the fraud or undue influence of the defendant. If Mr. Vann’s evidence is to be credited, then it is entirely clear that the plaintiff was reckless in his statements as to what took place between him and his son William, and very little if any credit could be placed in what he said. The testimony of William was clear and straight-forward.

Nothing appeared in his evidence to show that he had attempted to make out a case by suppressing the truth or exaggerating it. And it was corroborated in many important details by the evidence of Irving Brand and his neighbors. While I am entirely satisfied with the j udgment, I shall be glad to have the case submitted to a jury for their determination. When they have seen the witnesses and heard them testify, and weighed the evidence, their verdict ought to be satisfactory to both parties. If the case goes back for a new trial, the referee should be discharged and issues settled. The only two questions of importance are, first, whether the plaintiff was of sound mind when he made the settlement, and if so, whether the settlement was procured by fraud or undue influence. The referee may have mistaken the character of the witnesses and the import of the evidence. Ho one is a good judge of his own bias in such a case, and I may have been misled by it. All that can be claimed is, that my conclusions were honestly drawn from the facts as they appeared to me on the trial.

Bacon, J.

I am not prepared to say that, on the merits of this case, I should be disposed to differ from the conclusions of the learned referee touching the mental capacity of the plaintiff, and his freedom from such influences as the law has stamped as undue and illegitimate. On such questions, much is necessarily submitted to the judgment and good sense of a referee, which the court that does not see the witnesses, and has, therefore an imperfect opportunity to judge of the bearing and reliability of their testimony, cannot so well appreciate.

Without, therefore, expressing any opinion on the main facts disclosed by the testimony, and waiving their consideration, I shall vote for a reversal of the judgment and the granting of a new trial solely upon the erroneous ruling of the referee, as I consider it, on a single point. It is the re-. jection of the question propounded to the witness., George Geddes, at the 249th folio of the case. The principle of law involved in this point is fully discussed in the opinion of my brother Foster, and the authorities cited, which show, in my judgment, that the question was entirely proper and should have been allowed. What weight might have beén attached to the testimony' is not a subject of dis* cussion, but that it was competent, I think, is very clear from the authorities. The rule is well stated in the case of Cohn agt. Haslam, (7 Barb. 314.) that on a question of mental capacity the opinion of an intimate acquaintance as to such condition is competent when connected with facts and circumstances within his knowledge, and disclosed by him in his testimony as the foundation of his opinion, Mr. Gfeddes stood in this relation substantially to the plaintiff, and he disclosed facts and circumstances which well qualified and authorized him to express an opinion on the precise point on which it was proposed to interrogate him.

It may be well also, in case of a new trial to express an opinion as to the competency of the evidence given by the witness Vann, which was received by the referee under the objection that the matters he testified to, being the communication of a client to his counsel, they were received under the professional seal of secrecy, which could not be broken without the express assent of the client. Perhaps the rule is not yet established in this state, (although there are stong intimations to that effect,) that where a party offers himself as a witness, he may be interrogated as to any admissions ' or statements made to his counsel, and the counsel may be examined as to the same matters by the opposing party, either in chief or by way of impeachment. If it were necessary, I think, I should be prepared to hold this doctrine. But on another ground, the evidence of Vann was competent. The communications which passed between the plaintiff and Vann, were not in reference to any suit then pending or contemplated. They were made with the object of avoiding any legal controversy by bringing about an amicable arrangement, and with a view to the future conduct and relations of the plaintiff and his son the defendant. The case of Whiting agt. Barney, (30 N. Y., 330,) holds that the rule which protects the disclosure of professional communications of clients to their attorneys only extends to such communications as have relation to some suit, or other judicial proceeding then pending, or anticipated. Within this rule, the evidence objected to was clearly competent, and was properly received by the referee.

Note.—A very abort explanation only (if-any), is necessary in the case of Brand agt. Brand which occupies nearly this entire number. It will be seen at once that it is a leading case, and is nearly parallel with the case of Whelan agt. Whelan, 3 Cowen, 537, which occupies 53 pages of that book. It involves not only the important question of “undue influence” contained in Whelan agt. Whelan, but also the very important question of “ privileged communications both of which questions are discussed with great ability by Judge Foster.—Hep.

But on the ground heretofore stated, I am in favor of reversing the judgment and sending the case to a jury, as one very proper to be passed upon by them, on the issues of the mental capacity of the plaintiif, and the alleged fraud, or undue influence of the defendant.