#### DITMAS v. DITMAS. WICKHAM v. SAME.

(Supreme Court, Appellate Division, Second Department.

December 8, 1896.)

Rescission op Deed—Knowledge op Facts.

Where heirs at law of an intestate, with a full understanding of the facts- and the effect of their acts, executed conveyances and releases conveying their interest in his estate to one who, until after the death of decedent, was believed by all to be his lawful wife, but whose marriage was afterwards discovered to have been void, for the benefit of her and her children, they will he bound by such conveyances.

The questions involved In these cases seem substantially of fact. If plaintiffs-knew and comprehended their acts in executing the papers, they should he hound. A long and minute discussion of minor matters is not necessary, for, after a careful review of the testimony and briefs, I am convinced beyond question that plaintiffs exactly and fully understood the papers. It must he borne in mind that there was no confidential relation between plaintiffs and defendant, or the attorney for the defendant. If the attorney for the defendant had acted for the plaintiffs, or advised them, a very different question would have been presented. I am satisfied that defendant, during all the time she lived with Henry (I. Ditmas, and until his-death, believed herself to be his lawful wife, and so did all the relatives. After his death it was first discovered that the marriage was void by reason of the judgment of divorce, and his heirs were brought together on two different occasions to-execute deeds and releases by which they transferred, all their interests to the defendant. After full explanation the papers were executed. At first it seems surprising that plaintiffs, who were in humble circumstances, should give up a large estate for a nominal consideration. The fact that they were poor in no wise prevented them from doing what they thought to be right. They considered they took as heirs by reason of a technicality of the law, and, further, they knew that Mr. Ditmas died suddenly, and had no warning in time to make a will. The plaintiffs' *109were, no doubt, influenced by the mother of Mr. Ditmas, and by his sister, to execute the papers. The mother and sister thought that the estate left by Mr. Ditmas equitably belonged to the defendant and her children, and so advised plaintiffs and the other heirs. The plaintiffs could read the papers, and understand what was read to them; and the law casts on them the burden of showing fraud or mistake. They have failed to make out a case calling for equitable relief.

*108Appeal from special term, Kings county.

Actions by Elias H. Ditmas against Abigail V. Ditmas, and by George D. Wickham against the same defendant, to set aside conveyances and releases of plaintiffs’ interest in the estate of Henry 0. Ditmas, deceased. The complaints were dismissed, and plaintiffs appeal.

Affirmed.

The opinion of Mr. Justice CLEMENT at special term is as follows:

*109Argued before BROWN, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

Augustus S. Hutchins and Henry A. Forster, for appellants.

G. H. Fearons and J. Arthur Corbin, for respondent.

PER CURIAM.

Judgments affirmed, with costs, upon the opinion at special term. All concur.