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Second Department, March, 1910.

[Vol. 137. JENKS, J.:

This appeal is from a decree of the Surrogate's Court of Westchester that refused probate of the alleged will of Richardson upon the findings of restraint and undue influence and of incompetency. Richardson was 72 years old when he executed the instrument. The natural objects of his bounty were his aged wife and his two daughters, Mrs. Alexander and Mrs. Valentine. At the instance of his wife and Mrs. Alexander and after their consultation with his physician Richardson had been confined in a sanitarinin for physical and mental infirmities, but after a few weeks hie had been released by legal proceedings at the instance of Mrs. Valentine, wherein a jury determined that he was competent to manage his affairs. Shortly thereafter he executed the instrument in question, whereby, although he provided for his wife and the child of Mrs. Alexander, he excluded Mrs. Alexander, and disposed of the bulk of his estate in favor of Mrs. Valentine and her children. The contestants are the widow and Mrs. Alexander.

The opinion in the case indicates that the finding of restraint and undue influence rests upon the distinction made in favor of Mrs. Valentine, for which there appeared no good reason, and the absence of any proof that Mrs. Valentine ever attempted to correct lier father's obsession that Mrs. Alexander's purpose in taking steps towards his confinement in a sanitarium was to strip him of his possessions, by informing the father that Mrs. Alexander had acted from proper motives and upon a physician's advice. The question of incompetency was bitterly contested, and there was a clash of intelligent and reputable witnesses aside from a battle of experts. The proponent called a well-known physician who attended Richardson before the execution of the instrument, and who was a witness thereto, a prominent member of the bar who drew the instrument, as well as several friends and neighbors, of whom all gave evidence which indicated testamentary capacity. In sharp contradiction the contestants called several witnesses, including physicians.

We think that those issues should be passed upon by a jury. Such a determination of the appellate court does not necessarily proceed from the conclusion that the Surrogate's Court was posi. tively wrong in the result reached upon the facts, but is the

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App. Div.]

Second Department, March, 1910. approved course where the disposition which should be made of the questions of fact presented by the evidence is not free from doubt and the result reached in the Surrogate's Court is not entirely satisfactory to the appellate court. (Matter of Tompkins, 69 App. Div. 474, and authorities cited; Matter of Warnock, 103 id. 62; Matter of Eckler, 126 id. 199; Matter of Ilopkins, 176 N. Y. 595.) As this disposition is to submit, as if in the first instance, qnestions of fact to the primary judges thereof, and as it does not necessarily involve our determination of positive error in the findings of fact made by the learned Surrogate's Court, it seems wisest that we should not indulge in extended discussion of the facts in the present record. (Matter of Tompkins, supra, citing Van Orman v. Van Orman, 34 N. Y. St. Repr. 824, 826.) Aside from the fact that the instrument provides inequally in a marked degree for those of like degree the finding of restraint and of undue influence, as I have said, rests upon the absence of evidence. For aught that appears such evidence may be available. And on the other hand Mrs. Valentine testifies that at the outset she was against such confinement, and it may be that she believed that her sister's motives were not entirely disinterested, although that sister was sustained by the opinion of a physician. If Mrs. Valentine believed that Mrs. Alexander was moved solely by her affection for her father and was fortified by medical opinion, Mrs. Valentine's omission to remove the violent prejudice of her father against her sister might be stamped as unsisterly, sinister and unfair, but such shortcoming is hardly sufficient to com pel the inference that Mrs. Valentine thereby substituted her will for that of her father in the disposition of his property. In the nature of things undue influence is not readily susceptible of direct proof, but there must at least be affirmative evidence of facts from which it may be inferred. (Cudney v. Cudney, 68 N. Y. 148.) In that case the court, per Rapallo, J., say: “To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts froin which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence; there must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist or by deception, fraud or other improper means, that the instrument is not really the Second Department, March, 1910.

(Vol. 137. will of the testator.” The burden of this issue was upon the contestants. (Matter of Martin, 98 N. Y. 193, 197.) So far as the question of competency is concerned, enough has been said to show that that issue should be submitted to a jury.

The decree of the Surrogate's Court should be reversed and there should be had a new trial by jury at a Trial Term of the Supreme Court, held in the county of Westchester, upon these questions:

First. Did decedent at the time of the execution of the will in question have testamentary capacity ?

Second. Was the instrument purporting to be such will voluntarily made by him?

Third. Was the execution by the decedent of the said instrument purporting to be his last will and testament procured by fraud, circumvention or undue influence practiced upon him? with costs of the appeal to abide the event of the new trial. payable out of the estate.

HIRSCHBERG, P. J., WOODWARD, Thomas and Carr, JJ., concurred.

Decree of the Surrogate's Court of Westchester county reversed, and new trial granted before a jury, costs of the appeal to abide the event of the new trial, payable out of the estate.

John Quinn, Respondent, v. Thomas H. WHITNEY and W. MURDOCH

WILEY, Appellants.

Second Department, March 31, 1910.

Contract — agreement to sell stock on account of director of corporation

--- participation of director in acts constituting breach.

Where a contract provided that upon a sale of treasury stock held by a trustee,

he should sell on the account of a director one share for every five shares sold for the benefit of the treasury up to a certain amount, and permitted the director to sell his holdings on his own account, neither he nor his assignee can complain because the trustee made a sale without including shares sold for the

director, if he participated in and authorized the sale. HIRSCHBERG, P. J., and CARR, J., dissented.

App. Div.]

Second Department, March, 1910. APPEAL by the defendants, Thomas II. Whitney and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 10th day of June, 1909, upon the decision of the court rendered after a trial at the Nassan Trial Term, the jury having been discharged.

Charles E. Lydecker, for the appellants.

Henry C. Burnstine, for the respondent.

Thomas, J.:

On July 23, 1907, Moore, plaintiff's assignor, and the defendants entered into an agreement wherein the defendants were tirst parties. This contract recited an option upon mining property, and the intention of first parties to form a corporation, whose capital should be $1,000,000, and shares one dollar each, and to transfer the option to such corporation ; and further recited the second party's desire to purchase 174,000 shares of the stock. Thereupon follow stipulations to be kept by the first parties that the option shall be transferred to the corporation for 999,500 shares of its stock; that the second party shall be entitled to receive 174,000 shares for $8,700, payable in installments, and that “there shall be set aside for the account of said second party" shares to meet installments of payments; that 500,000 shares should be issued to a trustee to be appointed by the board of directors, but stipulated to be one Whitney, which stock "shall be sold at such price or prices as the Board of Directors may from time to time determine.” The second party agreed to pay as stated in the contract to “Wiley, as Trustee, on the express understanding and agreement * * * that said payments when so made shall be used solely for the benefit of said corporation.” But the first parties made this further agreement that nnderlies this action, “that upon any sale or sales of said stock the said fiscal agent (Whitney meaning) shall sell for and on account of the second party one share for every five shares of such stock so set aside for the benefit of the Treasury until the net proceeds of such proportionate sale for his account shall equal the amount of cash paid by him under his purchase as above provided for.” This contract was satisfactorily fulfilled save in one respect. Between January 1 and July 1, 1908, Whitney, fiscal agent of the corpora

Second Department, March, 1910.

(Vol. 137. tion, pursuant to the terms of the said agreement, sold of the trust stock 77,500 shares for $8,125, and did not include any of Moore's shares in such sale; and upon such grievance the plaintiff sues for damages, to wit, one-sixth of $8,125, or $1,354.17, for which sum judgment was ordered, less $165.40 received by plaintiff on a sale of his stock. The plaintiff's status depends upon a sale and transfer of 12,500 shares of stock by Moore on April 1, 1908, and a transfer, by instrument dated April thirtieth, of all his interest in the agreement of July 23, 1907. The plaintiff claims that this formal transfer embodied an oral transfer made when the stock was transferred. Plaintiff tendered defendants 12,917 shares of stock, one-sixth of the shares sold by them, and demanded one-sixth of the moneys received by them, and upon their refusal and upon notice sold for their account the stock in the market and received the sum of $165.40 credited as above. The court finds that neither defendant knew of the assignment of the contract of July 23, 1907, until May 29, 1908. The sale of the 77,500 shares, of which plaintiff complains, was in several lots, one on January 3, 1908, to Noyes and others, three equal lots to Clothier, severally on April 15, 22 and June 23, 1908. Clothier purchased his stock under an option agreement, which comprised “all the trustee stock of the corporation and all the stock of the parties hereto.” Moore was an officer and director of the corporation from October 11, 1907, to April 28, 1908. The first inqniry is, what did the involved stipulation in the contract of July 23, 1907, mean? This is aided by reference to the respondent's brief: “The clause of the contract material in this case was for the benefit of Moore's stock, and, if he could get the same benefit by a sale of all the stock to Clothier as by having Whitney sell it in connection with the trusteed stock for the treasury, he had a right to do this. He never agreed that he would hold this stock so that Whitney and Wiley could get one share to sell and deliver in connection with every five shares of the trusteed stock. This was optional with him, and only Whitney and Wiley were bound to take his stock and sell it if he so desired. Moore never even placed himself in a position where he could not deliver if delivery became necessary. IIe escrowed his stock upon the same conditions as the 499,500 shares of trusteed stock were escrowed. If these were sold his stock was sold; if they were not sold, his

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