Phillip v. Phillip

[2] Mutual wills by an agreement of the defendant Joseph O. Phillip and Nellie M. Phillip, his wife, with the plaintiff, Harry G. Phillip, have been shown. The two former executed identical wills devising a life use of tire real estate in question in this action to each other, with remainder over to the plaintiff upon the death of the survivor. These wills were executed pursuant to an agreement made between them to preserve the farm for the son in consideration of his remaining upon the farm after he became 21 years of age. He became 21 on October 20, 1905, and the wills-were executed October 16, 1909. The son remained upon the farm, doing such work as was necessary, until he was forced to leave his home through the efforts of the defendant Maggie W. Brown. The agreement to make mutual wills for the benefit of the plaintiff is shown by the testimony of the scrivener who drew the wills and by conversations between the plaintiff and his mother and father. The mother’s will was in the possession of the plaintiff, and he had often seen the

[ 1 ] This being the character of the transactions between the father, mother, and son, the father had no authority to change his will after his wife’s death, for the purpose of defeating the agreement, and the conveyance and bond and mortgage given to defendant Maggie W. Brown are void for this reason. They were executed by him, however, not only in violation of the previous agreement, but through the fraud and undue influence of the defendant Maggie W. Brown. In May, 1915, the defendant Joseph O. Phillip suffered a stroke of paralysis, and about that time employed the defendant Maggie W. Brown as a housekeeper, and while in enfeebled health, by fraud and undue influence, she caused him to execute and deliver a bill of sale October 11, 1915, of one-half interest in his personal property, excepting money in the bank. She then married him, and on December 13, 1915, he executed and delivered to her a bill of sale of the remaining one-half interest in said personal property. These transfers were followed by a bond and mortgage for $1,000 on the farm, and finally a conveyance of the farm itself. The execution of these documents was clearly the result of undue influence and fraud exercised and practiced by the defendant Brown. She occupied somewhat of a confidential relation to this old man, who was infirm and suffering from a severe stroke of paralysis. She began by setting him against the son, finally succeeding in driving the son from home. She even instigated a charge against the son for stealing a feather bed, swore out a search warrant, prevailed upon his father to do likewise, complained of the plaintiff to a justice of the peace, and procured letters to be written to him. She admitted to another that her marriage was prompted by mercenary motives, and she described the defendant Phillip as foolish and childish. She represented that she was a widow, and that her husband was dead, and upon these representations she married defendant Phillip, while in fact her husband was alive, and was produced on the witness stand. These facts, and other inferences that may be drawn from the acts and circumstances, show that she was guilty of fraud and undue influence in persuading this old man to break the agreement which he had made with his deceased wife

These facts amply support the decree asked for in this action. Edson v. Parsons, 155 N. Y. 555 , 50 N. E. 265 ; Fisher v. Bishop, 108 N. Y. 25 , 15 N. E. 331 , 2 Am. St. Rep. 357 ; Ten Eyck v. Whitbeck, 156 N. Y. 341 , 50 N. E. 963 . It was not necessary for the plaintiff to allege the details of the facts constituting undue influence. This influence is not always revealed in words, and it is not necessary to allege every fact showing its actual exercise, and the allegation of the general fact, accompanied by some specific instances from which the court may infer it, is sufficient. Wait, Fraudulent Conveyances, § 141, p. 213. When the facts constituting the undue influence are not known to the party alleging it, a general averment will not render the pleadings insufficient. Cyc. Pleading and Practice, pp. 686, 690; Kain v. Larkin, 141 N. Y. 144 , 152, 36 N. E. 9 ; Calkins v. Stedman, 146 App. Div. 202 , 203, 130 N. Y. Supp. 932 . The conversations between the plaintiff and his mother were not prohibited, under section 829 of the Code. The father and mother held the real estate as tenants by the entirety, and upon her death he acquired .no interest from her, nor can he be said to be her survivor. Each was possessed of the whole estate, and in such cases the survivor does not take as a new acquisition, but under the original limitation; his estate is simply freed from participation by the other. Washburn on Real Property, vol. 1, p. 672; Stelz v. Shreck, 128 N. Y. 263 , 266, 267, 28 N. E. 510 , 13 L. R. A. 325 , 26 Am. St. Rep. 475 .

The plaintiff is entitled to a decree establishing an agreement for mutual wills of the father and mother for his benefit, and setting aside and canceling the deed and bond and mortgage given by his father to the defendant Maggie W. Phillip.