But the complaint does not stop there, but continues with a most remarkable allegation, and so utterly foreign to the scope of an action to account as to at once arouse suspicion that there was some ulterior purpose for its interpolation, and explains why the Nelson heirs are joined with the plaintiff as parties defendant. The allegation is as follows:

"Upon information and belief the plaintiff further alleges that the defendants, Walter Nelson, Kate Pearce, Ida W. Fenner, Elva W. Pomeroy, and Jeanette Willoughby, constitute and are all of the heirs at law and next of kin of the said George Nelson, deceased, and as such became seised of and owners of all the real estate and personal property constituting the trust estate and left by said George Nelson and existing at the time of the death of Fred G. Nelson aforesaid; that the defendant Walter Nelson was entitled to one-half of said estate; and that the nieces were each entitled to receive one-eighth of said estate."

Having included such allegations in the complaint, how absurd becomes the present position of the trustee's attorney that he then knew that such allegations were false, and that the plaintiff was the owner and entitled to the entire trust estate! On being pressed to explain the discrepancy between what he had his client swear to, and which as attorney he himself had signed, and that which he on the trial insisted he knew, Livingstone makes the lame excuse that the complaint was Eaton's, and that he drew it so as to conform to his client's notion rather than his own knowledge-a most extraordinary position for a lawyer to take. If anything was required to show that Livingstone was innocent of any knowledge of his client's legal right to the trust estate, or knowing that the property belonged to her became a party to a conspiracy to deprive her of it, it is furnished by these allegations of his complaint. But that it was not a mere accident that the Nelson heirs were joined with plaintiff as parties defendant in this "action for a final accounting" by the trustee, and that there was a real reason for the bringing of this action so close upon the heels of the MillsLivingstone settlement, and indeed before it was consummated by the passing of the deeds, becomes apparent as the succeeding allegations of the complaint unfold themselves. The complaint continues with allegations: That on or about March 2, 1906, the widow of Fred G. Nelson, "the sole and only legatee and devisee" under his will, duly sold and transferred to the defendant Nelson heirs the Nelson home farm of 326 acres and the Danube farm of 21911⁄2 acres; that such conveyance was upon good consideration, and that thereby the grantees became seised of said two farms; that on said March 2, 1906, the Nelson heirs conveyed to the plaintiff Bertha J. Eysaman the undivided one-half of the Churchill farm, and that she was then seised thereof. As a matter of fact, such conveyances could not have been made at the time said complaint was verified, although the deeds were dated on March 2, 1906, because the authentication of the lastmentioned deed and the mortgage given concurrently by the Nelson heirs was not completed until April 25, 1906. So that the decree which was granted April 6, 1906, in the action ratified conveyances that had not been made.

The complaint further alleges the purchase by the Nelson heirs of the stock on the Home and Danube farms from plaintiff for $3,200, and the payment therefor with trust funds.

The complaint closes with a prayer that the trustee's accounts be judicially settled and allowed as therein stated, and that all his proceedings as shown in said complaint be passed upon and approved by the court, that he be allowed commissions and expenses, and that he and his bondsmen be discharged from further liability or responsibility, and for such other or further or different relief as to the court may seem just and equitable, "besides an allowance for the costs and expenses of this action." While this prayer does not specifically ask for the ratification of the "settlement" effected by Mills and Livingstone, a cursory perusal of the complaint reveals that the concealed purpose of the action was to clinch by a decree of the Supreme Court a transaction whereby an ignorant and confiding woman was being relieved of a valuable estate without consideration.

The complaint was verified by Eaton, the trustee, on April 3, 1906. Livingstone testifies that he personally served the summons and a copy of said complaint upon the plaintiff, Bertha J. Eysaman, in Little Falls (at what place it does not appear), on the day of its verification or the day after, and explained to her what it was, and that she should take it to her attorney. Mrs. Eysaman denies that she was served or informed as to the contents of the complaint. Strangely no proof of service was filed. Shall testifies that she brought the summons and complaint to him, and that he had it two days in his possession to examine and prepare her answer. In this Shall is clearly mistaken, as the answer which he prepared was verified on the 4th day of April, 1906-the very day when Livingstone says he may have serveď plaintiff. The summons and complaint which it is claimed was served upon Mrs. Eysaman was not produced upon the trial; Shall disclaiming any knowledge of the whereabouts of the document. The plaintiff denies the service, and disclaims any knowledge that an action was pending to adjudicate as to the title or disposition of the trust estate. She asserts that Livingstone informed her of the necessity of an accounting in court by the trustee, and that he could not represent her, but that Shall, who had a communicating office with him, could do so; and that she was then led to sign a paper which was not read to her, but which she understood related to Eaton's accounting, with which she had been led to believe she had no concern. Shall never presented to his client any bill, nor did she pay him anything for his services. He never consulted with his client as to her rights, and took no steps to investigate the same. His allowance of $50, made in the decree, was paid by the Nelson heirs. The fact that her written retainer of Shall as her attorney authorized him to appear for her only in proceedings by Eaton to account and the other attendant circumstances amply corroborate plaintiff's version.

[7] As a pleading the answer which Shall says he prepared, and which bore unmistakable evidence of having been typewritten on the same machine as the complaint, is certainly sui generis. It admits each allegation of the complaint, then alleges that Eaton is trustee and

has executed the trust as alleged in the complaint, that he has received and paid out the amounts set forth in the accounts contained therein, and on information and belief that the account as presented by the trustee is correct and should be allowed, and prays that the plaintiff have the relief prayed for by him in the complaint. The "answer" contains nothing more. No such pleading as this is authorized by law or practice. Section 500 of the Code of Civil Procedure provides what an answer shall contain: "(1) A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. (2) A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language without repetition." The "answer" served in behalf of Mrs. Eysaman surely had no warrant in law. Why was such an answer interposed? Manifestly with a design to show that she knew the contents of the complaint, and to estop her from afterwards questioning the truth of its allegations concerning the disposition of the Nelson trust estate. It is quite possible that Shall, at the time, may have been innocent of knowingly attempting to overreach plaintiff, but he certainly permitted himself to be used for such purpose. Livingstone testifies that he served the summons and complaint upon the defendant Walter Nelson in the city of Utica. Senator Mills testified that he guessed it was early in March that he was aware of the trustee's action; that he thought Mr. Walter Nelson brought him a copy of the summons and complaint; "that it had been mentioned that they would have an action to settle Mr. Eaton's accounts." On April 5, 1906, two days after Eaton verified his complaint, Mills appeared in the action for the defendants Walter Nelson and the four nieces, and himself verified and served an answer in behalf of his clients. The answer verified by Senator Mills before Livingstone as county judge is significant.

It also admits the allegations of the complaint, and then discloses its underlying purpose to confirm the "settlement" whereby plaintiff had been relieved of her property, and to obtain a decree of the Supreme Court which would effectually prevent plaintiff from ever thereafter attacking the same. The answer alleges that there was a dispute between the Nelson heirs and Mrs. Eysaman as to the ownership of the stock on the farms after Fred's death, and that each side was claiming the same. How this could be when Eaton years before had bought this stock of Fred and covenanted to return the same to his personal representative, and how the Nelsons could be then doubting Mrs. Eysaman's title thereto when they had paid her $3,200 the fall previous for this same stock, is hard to understand. The answer also somewhat hazily alleged that there was some dispute as to the ownership of the real estate; thus very adroitly putting forth the idea that there were disputed claims between the parties, and that the settlement effected was a good and sufficient consideration for the conveyance by Mrs. Eysaman to the clients of Senator Mills. The details of the alleged compromise and settlement are set forth at length, and in the prayer for relief judgment is demanded ratifying, confirming, and adjudging to be valid, lawful, and binding upon each and every of the

parties the "aforesaid settlement and compromise between these defendants and the said Bertha J. Eysaman, and all the conveyances, transfers, and payments made in pursuance thereof and in consummation thereof." The prayer further demands that the parties to such "The compromise be adjudged to be the owners of the property going to each thereunder. Thus it will be seen that from a simple, uncontested action by a trustee to account was evolved an action to ratify and confirm a most unconscionable transaction.

The Mills answer was served on the day of its verification, April 5, 1906, on the plaintiff's attorney, and a copy thereof served on attorney Shall claiming to represent Mrs. Eysaman. Then on the day following, April 6, 1906, with the utmost diligence all hands-Eaton, the trustee, and Livingstone, his counsel, Senator Mills, representing the Nelson heirs, and Attorney Shall, appearing for Mrs. Eysaman-betake themselves into the presence of the Supreme Court, there to obtain adjudication of the "issues" in the action. Eaton and Walter Nelson are briefly sworn, but not cross-examined. A previously prepared decision and final decree are presented to and signed by Mr. Justice Scripture. The decree allows and passes the plaintiff's accounts, and approves of his various acts as trustee, and then proceeds to accomplish the evident purpose of the action by ratifying, confirming and adjudging to be lawful, valid, and binding upon the parties the "said settlement, compromise, and agreement," and confirming the conveyances alleged to have been made in accordance therewith, but which in fact had not yet been made, for the reason that they had not been delivered. Said final judgment further decrees the title and ownership of the Homestead and Danube farms and all the trust estate, save the half interest in the Churchill farm, to be in the Nelson heirs, and that of the Churchill farm to be in Mrs. Eysaman.

The decree directs the trustee to pay from out of the balance of moneys in his hands the following allowances: "To Robert F. Livingstone, his attorney, five hundred dollars ($500.00); to A. M. Mills, attorney for defendants Nelson et al., seven hundred and fifty dollars ($750.00); and to Frank Shall, attorney for defendant, Bertha J. Eysaman, fifty dollars ($50.00)." These allowances are followed, not without significance, with the adjudication: "That the said Fred G. Nelson, cestui que trust, having died, the said trust is at an end." The trustee is allowed commissions to the amount of $607.54 and "for expenses incurred by him on this accounting and otherwise," payable from the trust funds in said trustee's hands after the payment of allowances to the attorneys, and, if sufficient moneys did not remain after payment of said allowances to attorneys, it was decreed that Eaton, the trustee, should have a lien upon the real estate adjudicated to the Nelson heirs, and the income to be derived therefrom in the immediate future, and authority given him to retain possession of said real estate and receive the future income therefrom until paid the full amount of said commission and compensation. The absurdity of such a provision is rivaled only by the amount of the allowances made to attorneys for services rendered during a period of not to exceed two or three days, and involving no contest.

I have endeavored to relate somewhat in detail the circumstances surrounding this controversy. Therefrom it is apparent that there was concerted action on the part of the Nelson heirs, aided by able counsel and by the trustee, Eaton, to withhold from plaintiff property to which she was justly entitled; that plaintiff was in entire ignorance of her rights, and so remained until shortly before the commencement of this action; that either Livingstone was unaware of his client's rights in the premises, and became a most passive tool in the hands of others better informed, or he was a party to a deliberate scheme to defraud his client. It must be conceded that his conduct in relation to the action of Eaton to account and the manifest intention through the instrumentality of such action to forever foreclose an ignorant and confiding woman from asserting her rights should some future day discover them to her is hardly reconcilable with the theory of ignorance. The preconceived purpose of that action is all too apparent. In my opinion the bringing of this action, the interpolation of matter so foreign to the accounting of the trustee, the concert of action of the parties engaged in carrying on the action, and its consummation in the decree, furnishes the strongest kind of evidence of the conspiracy to deprive this unfortunate woman of her property. If the settlement was honest and the deed obtained from plaintiff a valid one, untainted by fraud, why was such a decree necessary? If the transaction was clean and above board, no Supreme Court decree was required to confirm it. The deal was a questionable one, and the perpetrators believed it needed fortifying, and ir their efforts to clinch the affair they overreached and branded the whole transaction as a fraud. The motives which actuated the Nelson heirs are easy to understand. It was not strange that they entertained a prejudice against the daughter-in-law of their kinsman, who bore no blood relationship to the deceased nor to them. They undoubtedly considered her an interloper, who had no claim, except as the widow of a dissolute son of their kinsman, from whom indeed she had separated before his death, and, he having died without leaving a child, the blood relatives of George Nelson undoubtedly looked with jealousy upon a stranger inheriting this valuable estate, in the accumulation of which she had had no hand. But the prejudices of these so-called "heirs" should not be permitted to deprive the plaintiff of that which the law clearly gives her. And, if it appears that those who have no legal right to this property have acquired it by means of a fraud perpetrated upon the rightful owner, equity should reach out and take from the wrongdoers the fruits of their dishonest acts and restore them to the person entitled thereto.

[8] In any event, the plaintiff was induced to enter into a most unconscionable bargain. In ignorance of her rights she was led to part with a valuable estate without a particle of actual consideration. There are certain facts over which there can reasonably be no con

troversy.

First. The plaintiff owned and was entitled to receive the entire remainder of the trust estate upon the death of her husband. This property became hers absolutely, subject only to an accounting by the trustee for his acts.