#### Joseph P. Kinner and William A. Kinner, as Administrators, etc., of Lucy E. Johnson, Deceased, Appellants, *v.*Clarissa P. Corning, Respondent.

Third Department,

September 9, 1914.

Decedent’s estate — suit to set aside transfer of personal property alleged to have been effected by fraud and undue influence — evidence.

In a suit to set aside a transfer of personal property from plaintiff’s intestate to the defendant, her sister, on the ground of fraud and undue influence, it appeared that the intestate, about three weeks before her death, while confined to her bed and very feeble and under the influence of the defendant, who had shown an intense animosity against the other members of the family and had insisted upon caring for the deceased for a short time and excluding other members of the family, signed a check and bill of sale transferring all of her property to the defendant.

Evidence examined, and *held,*insufficient to establish that the transfer was the free act of the intestate, or that she intended to give all of her property to the defendant.

Lyon and Howard, JJ., dissented.

Appeal by the plaintiffs, Joseph P. Kinner and another, as administrators, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 14th day of May, 1913, upon the decision of the court after a trial before the court without a jury.

*Bratt & Van Wormer [Fred A. Bratt*of counsel], for the appellants.

*Rogers & Sawyer [J. E. Sawyer*of counsel], for the respondent.

Kellogg, J.:

Mrs. Johnson had lived on the old homestead at Whitehall, N. Y., with her brother for many years as a member of his family. For about the last two years of her life she lived alone in a part of his house, receiving much assistance from his family. She had $1,100 in the bank, and some household furniture, and apparently notes of a small amount against her *811brother. In the fall of 1911 the defendant, her sister, who •lived in Nebraska, came to Whitehall, and soon after began to take care of Mrs. Johnson, and showed an intense animosity against her brother and his family. Mrs. Johnson became sick about February first and was very feeble, and the defendant did not want the brother or his family in her room, and the doctor advised them, in order to save trouble with the defendant, to keep out of her room. After February first Mrs. Johnson only answered questions asked her, and was not able to engage in any conversation; was gradually growing weaker and died on February twenty-fifth. She had apparently lived on good terms with her brother and family, but while visiting a neighbor at a time when she was unwell and shortly before she entered upon her last sickness she offered him all of her property if he would take care of her, and made the same offer to her niece, Mrs. Balch. On February seventh the defendant sent for a lawyer. He came to the house with a neighbor, Mrs. O’Eourke, and received instructions from the defendant and prepared a check for all of the money in the bank and a bill of sale of the household furniture, without any directions from or conversations with Mrs. Johnson. They then went into the room where she was. Some one said that they must talk low so that the brother’s family in the adjoining room would not hear them. The nurse raised Mrs. Johnson up in bed, sitting behind her to hold her up. The lawyer, as he says, presented the check to her, telling her it was a check for all of the money in the bank to the defendant, and she signed it, and then she signed the bill of sale. The nurse, who was supporting her in the bed, did not hear the conversation because it was so low, and did not hear the papers read. There is no other evidence in the case that Mrs. Johnson knew that she was giving to the defendant all her property. She was in the defendant’s control. The family was excluded by the defendant from seeing her, and it rests with the defendant to establish by affirmative evidence that the check and bill of sale was the free act of Mrs. Johnson and that she intended to give all her property to the defendant. There is no evidence of any agreement that she should do so. The services rendered by the defendant were not large, and the evidence that Mrs. *812Johnson knew and appreciated the act that she was doing and intended to give all her property to the defendant is not satisfactory. The defendant was required to prove more than a formal execution of the papers. The instructions were the defendant’s, and the only evidence that Mrs. Johnson appreciated and understood her act is the fact that she signed the papers. It is not clear hut that she would have done anything that the defendant asked her to do. Before the seventh the defendant asked the doctor if Hrs. Johnson made a will whether it would hold, and he told her he did not know, that the proper thing for her to do was to have an attorney come and draw up the legal form if she chose to make a will. I favor a reversal.

All concurred, except Lyon and Howard, JJ., dissenting.

Judgment reversed on law and facts, and new trial granted, with costs to appellants to abide event. The sixth, seventh, eighth and ninth findings of fact are disapproved of.