Martin, J.
The plaintiffs have obtained two judgments: (l) Adjudging that gifts from Ellen Campbell, deceased, to Frances H. O’Connor and Madelon R. O’Connor, and (2) adjudging that a deed of trust executed by Ellen Campbell on the 19th day of June, 1926, were fraudulently procured; and that both the gifts and the deed of trust were the result of undue influence and, therefore, void.
The first action is to recover the proceeds of the sale of 4,252 shares of stock of the British American Tobacco Company, Ltd., of Great Britain, and 794 shares of stock of the Imperial Tobacco Company, Ltd., of Great Britain and Ireland. These shares of stock were sold by Nickerson & Co. under a written order from Ellen Campbell and the sum of $138,409.75, the proceeds of the sale, divided between Frances H. O’Connor (Lamberti) and Madelon R. O’Connor.
The issue involved is whether the sale of the stock and the gift of the proceeds thereof to Frances H. O’Connor and Madelon R. O’Connor were voluntary acts on the part of Ellen Campbell while she was in full possession of her faculties and subject to no undue influence or restraint.
A similar issue is raised as to the trust action. A deed of trust was made on June 19, 1926, supervised by the representative of the New York Trust Company making that company trustee, whereby the decedent turned over to the trustee certain property. This consisted of 666 shares of American Tobacco Company stock, 200 shares of California Gold Mine stock and certain claims that Ellen Campbell had as residuary legatee under the will of her brother Daniel amounting to about $20,000 and a claim she had against [128]*128Sadie Kaplan amounting to $5,600 in respect to a sale of certain American Snuff Company stock together with about $3,000 cash on deposit in the Chatham Phenix National Bank of New York city and in the Irving Bank-Columbia Trust Company.
The deed of trust provides that the income from the trust estate was to be paid to the grantor during her life in quarter annual payments and upon her death the then existing principal was to go to Frances H. O’Connor, if living at the time of grantor’s death, and if not living to the heirs of said Frances H. O’Connor, subject, however, to a payment of $2,750 out of the principal for the perpetual maintenance of the Campbell mausoleum in Woodlawn Cemetery.
On July 24, 1926, Ellen Campbell, then seventy-three years of age, died while a resident óf Bronx county. Her family originally consisted of five sisters and three brothers. Her four sisters were Marguerite Campbell, a nun, who died in St. Augustine, Fla., in 1912, Frances Y. O’Connor, Mary A. Haas and Emma Hogan, and her three brothers were Daniel Campbell, William Campbell and Edward Campbell. Daniel Campbell died in 1918. Ellen Campbell inherited practically his entire estate including the part which is the subject of this litigation. Nothing has been heard from William Campbell or Edward Campbell for upwards of twenty-five years. Two of the sisters, Mrs. Emma Hogan and Mrs. Mary A. Haas, survived the decedent but Mrs. Hogan has since died.
The two surviving sisters are Frances V. O’Connor and Mary A. Haas. The last named survivor has three children, Sadie Kaplan, Alma M. Schneider and Alexander L. Haas. Frances V. O’Connor has four children, Frances H. O’Connor (now Lamberti), Madelon It. O’Connor, Marguerite O’Connor (now Margaret Frenz) and Howard O’Connor.
In her early life the deceased was a seamstress and later when Marguerite O’Connor (now Margaret Frenz) was three years old she took the latter with her and went to five with her brother Daniel, at Fishkill, N. Y. Margaret continued to live with her until 1924, when she married. A quarrel then occurred which resulted in litigation. Ellen Campbell sued Margaret but was unsuccessful in her action; the latter then in turn sued her, which litigation was finally settled.
In 1924, after Margaret left her, Ellen Campbell went to live with Sadie Kaplan. She remained there until Sadie Kaplan told her that she intended to take a cottage at Long Beach for the summer, and that she would either have to go to Long Beach or to a hospital. It was then that Ellen Campbell asked her sister [129]*129Mrs. Frances V. O’Connor to rent an apartment in which she could live with the O’Connor family.
The plaintiffs contend that it was during the time Ellen Campbell lived with the O’Connors that they wrongfully influenced her to give them part of her property.
When the case was before this court on a former appeal from an order denying a motion to enjoin certain of the defendants from disposing of property which is the subject of this litigation, we held that if the facts alleged in the moving papers were established the plaintiffs would undoubtedly be entitled to some form of relief; that the allegations of fact set forth in the affidavits if proved might establish fraud and undue influence. (220 App. Div. 340.)
On this appeal an examination of the record discloses that many of the allegations made in the affidavits on the former appeal have not been proved. In several instances they were wholly disproved. Important witnesses who were in a position to explain the matters referred to on the former appeal, although available on the trial, failed to testify.
A majority of the witnesses for the plaintiffs were relatives, interested in the result and all seeking a share of the property that was the subject of the action. During the course of the trial it appeared they had already received substantial gifts from the decedent.
The witnesses for plaintiffs who were not relatives seeking a share of the property, especially the lawyer, Mr. Heymann, were clearly biased. On cross-examination he admitted that he was related to Sadie ICaplan, was her attorney and was vitally interested in the result because of a will that had been prepared by him but which was destroyed by Ellen Campbell. The trial court commenting on the testimony said: “ The sad and sordid story of the straining of these formerly close relations and their final rupture is hinted at by various witnesses. If fully told it might furnish a key to several obscure problems of the case. Neither Marguerite nor Sadie was called as a witness for either side. On May 10, 1926, Miss Campbell left Sadie and took up her residence with Mrs. O’Connor and Frances, who were two days afterwards joined by Madelon; there she remained until her death on June twenty-fourth of the same year.”
Attention was then called to the fact that several of the relatives had received substantial gifts from the decedent. The trial justice said: “ Miss Ellen Campbell, the deceased, had been a member of a large family, of whom her brother Daniel J. Campbell, her benefactor through bequests of nearly $400,000, was the most [130]*130successful. After Daniel’s death such of the survivors as were conveniently located appear to have turned to Ellen as the moneyed member and she from time to time distributed gifts to them with a generous hand. By the first or second month of 1926 the score was approximately as follows: Mrs. Frances V. O’Connor, sister (co-defendant), $10,000; Mrs. Alma Schneider, niece, and daughter of Mrs. Haas, $18,000; Al Haas, nephew, and son of Mrs. Haas, $5,000; Mrs. Mary A. Haas, sister (plaintiff), $10,000; Madelon and Frances, nieces, and daughters of defendant Mrs. Frances V. O’Connor (defendants), $15,000 each; Howard O’Connor, nephew, and son of defendant Frances Y. O’Connor, $5,000. Mrs.
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Martin, J.
The plaintiffs have obtained two judgments: (l) Adjudging that gifts from Ellen Campbell, deceased, to Frances H. O’Connor and Madelon R. O’Connor, and (2) adjudging that a deed of trust executed by Ellen Campbell on the 19th day of June, 1926, were fraudulently procured; and that both the gifts and the deed of trust were the result of undue influence and, therefore, void.
The first action is to recover the proceeds of the sale of 4,252 shares of stock of the British American Tobacco Company, Ltd., of Great Britain, and 794 shares of stock of the Imperial Tobacco Company, Ltd., of Great Britain and Ireland. These shares of stock were sold by Nickerson & Co. under a written order from Ellen Campbell and the sum of $138,409.75, the proceeds of the sale, divided between Frances H. O’Connor (Lamberti) and Madelon R. O’Connor.
The issue involved is whether the sale of the stock and the gift of the proceeds thereof to Frances H. O’Connor and Madelon R. O’Connor were voluntary acts on the part of Ellen Campbell while she was in full possession of her faculties and subject to no undue influence or restraint.
A similar issue is raised as to the trust action. A deed of trust was made on June 19, 1926, supervised by the representative of the New York Trust Company making that company trustee, whereby the decedent turned over to the trustee certain property. This consisted of 666 shares of American Tobacco Company stock, 200 shares of California Gold Mine stock and certain claims that Ellen Campbell had as residuary legatee under the will of her brother Daniel amounting to about $20,000 and a claim she had against [128]*128Sadie Kaplan amounting to $5,600 in respect to a sale of certain American Snuff Company stock together with about $3,000 cash on deposit in the Chatham Phenix National Bank of New York city and in the Irving Bank-Columbia Trust Company.
The deed of trust provides that the income from the trust estate was to be paid to the grantor during her life in quarter annual payments and upon her death the then existing principal was to go to Frances H. O’Connor, if living at the time of grantor’s death, and if not living to the heirs of said Frances H. O’Connor, subject, however, to a payment of $2,750 out of the principal for the perpetual maintenance of the Campbell mausoleum in Woodlawn Cemetery.
On July 24, 1926, Ellen Campbell, then seventy-three years of age, died while a resident óf Bronx county. Her family originally consisted of five sisters and three brothers. Her four sisters were Marguerite Campbell, a nun, who died in St. Augustine, Fla., in 1912, Frances Y. O’Connor, Mary A. Haas and Emma Hogan, and her three brothers were Daniel Campbell, William Campbell and Edward Campbell. Daniel Campbell died in 1918. Ellen Campbell inherited practically his entire estate including the part which is the subject of this litigation. Nothing has been heard from William Campbell or Edward Campbell for upwards of twenty-five years. Two of the sisters, Mrs. Emma Hogan and Mrs. Mary A. Haas, survived the decedent but Mrs. Hogan has since died.
The two surviving sisters are Frances V. O’Connor and Mary A. Haas. The last named survivor has three children, Sadie Kaplan, Alma M. Schneider and Alexander L. Haas. Frances V. O’Connor has four children, Frances H. O’Connor (now Lamberti), Madelon It. O’Connor, Marguerite O’Connor (now Margaret Frenz) and Howard O’Connor.
In her early life the deceased was a seamstress and later when Marguerite O’Connor (now Margaret Frenz) was three years old she took the latter with her and went to five with her brother Daniel, at Fishkill, N. Y. Margaret continued to live with her until 1924, when she married. A quarrel then occurred which resulted in litigation. Ellen Campbell sued Margaret but was unsuccessful in her action; the latter then in turn sued her, which litigation was finally settled.
In 1924, after Margaret left her, Ellen Campbell went to live with Sadie Kaplan. She remained there until Sadie Kaplan told her that she intended to take a cottage at Long Beach for the summer, and that she would either have to go to Long Beach or to a hospital. It was then that Ellen Campbell asked her sister [129]*129Mrs. Frances V. O’Connor to rent an apartment in which she could live with the O’Connor family.
The plaintiffs contend that it was during the time Ellen Campbell lived with the O’Connors that they wrongfully influenced her to give them part of her property.
When the case was before this court on a former appeal from an order denying a motion to enjoin certain of the defendants from disposing of property which is the subject of this litigation, we held that if the facts alleged in the moving papers were established the plaintiffs would undoubtedly be entitled to some form of relief; that the allegations of fact set forth in the affidavits if proved might establish fraud and undue influence. (220 App. Div. 340.)
On this appeal an examination of the record discloses that many of the allegations made in the affidavits on the former appeal have not been proved. In several instances they were wholly disproved. Important witnesses who were in a position to explain the matters referred to on the former appeal, although available on the trial, failed to testify.
A majority of the witnesses for the plaintiffs were relatives, interested in the result and all seeking a share of the property that was the subject of the action. During the course of the trial it appeared they had already received substantial gifts from the decedent.
The witnesses for plaintiffs who were not relatives seeking a share of the property, especially the lawyer, Mr. Heymann, were clearly biased. On cross-examination he admitted that he was related to Sadie ICaplan, was her attorney and was vitally interested in the result because of a will that had been prepared by him but which was destroyed by Ellen Campbell. The trial court commenting on the testimony said: “ The sad and sordid story of the straining of these formerly close relations and their final rupture is hinted at by various witnesses. If fully told it might furnish a key to several obscure problems of the case. Neither Marguerite nor Sadie was called as a witness for either side. On May 10, 1926, Miss Campbell left Sadie and took up her residence with Mrs. O’Connor and Frances, who were two days afterwards joined by Madelon; there she remained until her death on June twenty-fourth of the same year.”
Attention was then called to the fact that several of the relatives had received substantial gifts from the decedent. The trial justice said: “ Miss Ellen Campbell, the deceased, had been a member of a large family, of whom her brother Daniel J. Campbell, her benefactor through bequests of nearly $400,000, was the most [130]*130successful. After Daniel’s death such of the survivors as were conveniently located appear to have turned to Ellen as the moneyed member and she from time to time distributed gifts to them with a generous hand. By the first or second month of 1926 the score was approximately as follows: Mrs. Frances V. O’Connor, sister (co-defendant), $10,000; Mrs. Alma Schneider, niece, and daughter of Mrs. Haas, $18,000; Al Haas, nephew, and son of Mrs. Haas, $5,000; Mrs. Mary A. Haas, sister (plaintiff), $10,000; Madelon and Frances, nieces, and daughters of defendant Mrs. Frances V. O’Connor (defendants), $15,000 each; Howard O’Connor, nephew, and son of defendant Frances Y. O’Connor, $5,000. Mrs. O’Connor has another daughter, Marguerite (later Mrs. Frenz), the amount of whose gifts from deceased is not shown, but it appears that she cost her aunt Ellen in litigation altogether $49,000. Mrs. Haas has another daughter, Sadie (Mrs. Kaplan), who appears to have received gifts of $50,000. * * * Up to the time of her removal to the new home of the defendants, she had treated the relatives who lived in the neighborhood of New York with impartiality, apart from Marguerite and Sadie. These two were then alike in the position of having specially profited to about the same extent and of having quarreled with her. It would appear that each member of the family had a fairly good idea how much every other had received.”
The plaintiffs made several serious charges which, if true, would be sufficient to warrant the setting aside of the gifts and trust deed.
Because of limited space, we shall be unable to refer at length to each charge or the evidence offered to support it, contained in the voluminous record submitted on this appeal. We will, however, refer to some of the more important evidence.
The plaintiffs charged that because of the excessive use of drugs, Ellen Campbell was unable to act rationally. The only drugs administered were necessary because of the nature of her illness and in accordance with her doctor’s orders. It was established by the evidence that there was not an excessive use of drugs, or any harmful effect therefrom.
The court at Special Term in passing upon that allegation said: “It is not asserted that she was of unsound mind, but that her nieces Frances and Madelon administered to her, with the aid of a physician, certain drugs which affected her mentality and made her more susceptible to their influence. In spite of some partial denials by the defendants, their adversaries have established that codeine, in capsules of one-half and one grain each, was prescribed for her by the doctor and given by the defendants, usually Frances, to her.
[131]*131“ According to expert testimony this drug in considerable quantities, say of two grains and more at a time, might have clouded her mind, but there is no convincing evidence that any such quantities were in fact taken at one time by deceased, or that her mind was in fact clouded by these capsules or any other medicine at any time. This particular charge is, therefore, in my judgment to be eliminated, although the necessity for the use of the drugs to alleviate her sufferings, the period during which they were administered, and the lack of frankness of the defendants in their testimony about the matter furnish at once some measure of the patient’s physical and mental condition and of the conduct and opportunities of the defendants in relation to her.”
On the former appeal it was stated that Mary A. Haas had difficulty in obtaining admission to the O’Connor home, and at times was not allowed to see her sister.
On this trial Mary A. Haas admitted on cross-examination that she not only was permitted to see her sister at any timo she desired, but did see her every Thursday during the period she was in the home of the O’Connor family. It also appears that members of the Haas family with friends were permitted to enter the home at any time and to converse freely with Ellen Campbell.
In an effort to support the allegation of undue influence, much stress was laid upon another incident which occurred during this period. It was urged that the will of the decedent had been destroyed through the influence of the O’Connor family. The incident with reference to the destruction of the will was also explained. The decedent had made a will during the time she lived with Sadie Kaplan in which she made her niece Sadie Kaplan her residuary legatee. Sadie Kaplan arranged with her lawyer for the preparation of this will. Shortly after Ellen Campbell took up her residence with the O’Connor family the will was destroyed because the decedent believed Sadie Kaplan wrongfully withheld some of her property.
It is very significant that on this trial Sadie Kaplan failed to take the witness stand and submit to an examination with reference to the circumstances leading up to the preparation and signing of the will, her removal to Long Beach, and her efforts to obtain a release from Ellen Campbell. It developed upon the trial that Sadie Kaplan had already received at least $50,000 from Ellen Campbell and that the decedent had made a will leaving her practically everything. The decedent upon the discovery of certain facts not only destroyed her will in the presence of several people but indicated that she believed she had very good reason [132]*132for doing so. After the death of Ellen Campbell, Sadie Kaplan, although she had denied having any property of decedent, returned to the estate property of the value of $61,000 which she had wrongfully withheld.
On the former appeal our attention was also called to a letter signed by the decedent directing the sale of certain stock. It was suggested that the letter was not signed by Ellen Campbell and that the plaintiffs were probably in a position to establish that fact. On this trial it was admitted that the decedent had signed this important letter and the evidence established that she was well aware of the contents thereof.
The plaintiffs at the trial emphasized the fact that the doctor attending Ellen Campbell at the Kaplan home had advised against her removal to the O’Connor home in the borough of The Bronx. This was seized upon as showing the influence of the O’Connor family and a wholly unnecessary and improper change. They overlooked the fact that this change became necessary because Ellen Campbell was given the choice of either going to Long Beach, a journey which would have been much more injurious, or going to the hospital.
The effort to prevent proof of the fact" that Sadie Kaplan went to Long Beach in the spring of 1926 proved ineffective. Her removal to Long Beach was established beyond question.
Although it is urged by the witnesses for the plaintiffs chat Ellen Campbell was too weak to act of her own free will and too deaf to converse with any one, in the same breath and almost in the same sentence these witnesses, especially Mr. Heymann, detailed at length intelligent, clear and important conversations with reference to the decedent’s property and affairs, the making of her will and the demand for the return of the original. If Ellen Campbell was fully able to converse with reference to the matters which were of importance to the plaintiffs’ case, it is not likely that she was unable to converse intelligently during the same period with reference to similar matters affecting the defendants’ case.
In addition, the evidence developed that Mrs. Frances V. O’Connor was probably entitled to more consideration from the decedent than any other member of the family. For many years she had taken care of the parents of the decedent. During the last few months of Ellen Campbell’s life the O’Connor family had been kind and attentive to her. It is contended by the plaintiffs that such solicitude for her welfare during her last illness was induced by an ulterior purpose.
That suggestion may be true. It is clear, however, that the other [133]*133relatives with whom Ellen Campbell had lived had profited by her generosity and were less considerate.
While it may be charged that the O’Connor family used undue influence to obtain the property of the decedent, nevertheless there is ample evidence that some of the other members of the family, after accepting her gifts, neglected the decedent. They were quite willing to use all the influence at their command to obtain the remaining part of decedent’s wealth without giving her any attention in return.
A very important letter written by a daughter of Mrs. Haas, the sister of Sadie Kaplan, after a visit to Ellen Campbell at the O’Connor apartment, at a time when there was no thought of litigation, gives a very good idea of the whole situation. A part of that letter is as follows:
“ Dear Aunt:
^
“ More than enjoyed our visit to you the other night and certainly was glad to see every thing so nice and cheerful. The apt is certainly lovely and you yourself it was good to see your smile and contented look. Hope that deafness has gone and you are going to keep up the good work and sit up a little each day so you will get stronger and with God’s help will be yourself again. Doctors don’t know everything.
“Was sorry to hear you had been unhappy and had we known surely would have tried to adjust matters as our home is yours whenever you see fit to make it so. As far as the things that they have said about me I do not understand Sadie’s attitude toward me I am sure there is no reason for her to be jealous of us and we have always tried to mind our own business and would not have gone up to 124 St. so often if it had not been to see you and it will be a long time, yes, a very long time before we go up again and you try not to think of what has gone by but look ahead to and enjoy yourself while you can for there is none of us can say we will be here tomorrow not even the strongest. * * * Well Aunt I really have no news to write but felt I wanted to tell you how pleased we were to see you so happy. We will be up soon again. Thank the girls for us as we felt more welcome than we ever did going to see you before and I know it was not your fault that we felt that way. Take good care of yourself and try not to think of the disagreeable things gone by. Will see you soon again.
“ Love
“ ALMA.”
The defendants are charged with fraud and undue influence. There is no doubt that the close relationship of the parties was [134]*134of a character that was likely to result in the suspicion that undue influence was used and that all was not fair, open and well understood. If we take as true the statements contained in the affidavits that were used on the motion for the injunction, one might believe that the charges were well founded. When the opportunity was given to the affiants to produce evidence to sustain the statements made by them there was a complete failure of proof.
The evidence does not sustain the allegations of fraud and undue influence. On the contrary, the record contains evidence that all of the parties were anxious to secure a share of the decedent’s wealth and that the decedent had ample reason for giving the daughters of her sister Mrs. Frances V. O’Connor a large sum of money with the direction that they should take care of their mother for the rest of her life.
The testimony of disinterested witnesses, including the representatives of the trust company who prepared and attended to the execution of the trust deed, warrants the conclusion that the decedent well knew everything she was doing and that the making of the trust deed and the gifts were her deliberate act.
It is quite clear that Ellen Campbell was not only able to dispose of her estate without the aid or influence of any other person, but that she finally gave her property to those to whom she felt indebted and from whom she had received most consideration.
The judgments should, therefore, be reversed, with costs, and the complaints dismissed, with costs.
Dowling, P. J., and McAvoy, J., concur; Finch and O’Malley, JJ., dissent.