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and stocks of many other corporations, as fully detailed in the complaint. Of the 1,415 shares of the Eastman Kodak Company stock above referred to, the defendant received by way of gifts from Mr. Rundel, as she claims, between the day he returned from Atlantic City and the time of his death, 784 shares, and her daughter, Mrs. Sawyer, received 21 shares, also claimed to be a gift. When Mr. Rundel returned from Atlantic City he had on deposit in various banks in the city of Rochester cash aggregating in amount $6,745.49. After his death it was discovered that between the time of his return from Atlantic City and the time of his death he had transferred to defendant a large amount of personal property on the dates as follows:

1910.

Aug. 10. 300 shares Eastman Kodak common stock.

Aug. 27. 100 shares Eastman Kodak common stock.

Aug. 27.

Dec. 25.

1911.

Feb.

June 13.

June 13.

June 17.

Aug. 1.

Sept. 22.

Oct.

1911.

Sept. and

October

100 shares American Fruit Products Company common stock.
Cash, $6,500.00.

Cash, $3,900.00.

84 shares Eastman Kodak common stock.

18 shares Hungerford Smith stock.

Bill of sale, jewelry, pictures, personal effects.

Insurance policy for $3,000.

300 shares Eastman Kodak common stock.

Several coupons Century Telephone Co. bonds. ($125.)

495 Consolidated Telephone Co. stock.

230 General Railway Signal Co. stock.

25 New York & Kentucky Co. stock.

308 American Fruit Products Co. stock.

2 Genesee Valley Trust Co. stock.

Cash, $19,100.00.

The value of such securities and cash exceeded $500,000, and it is to set aside these transfers that plaintiff brings this action, claiming that they were procured by fraud and undue influence exercised over Mr. Rundel.

The contention of plaintiff is that defendant was a Spiritualistic medium, and acting through a spirit called Wau Kee, with whom she had communications, she treated Mr. Rundel, and that he believed she had done him great good in such treatments; that when the treatments were given she would go in a tranced condition and Wau Kee would assist her; that she was also in communication with another spirit called Pat, who was the financial man in the business; that he gave valuable advice as to stock investments; that she in turn advised Mr. Rundel; that because of these peculiar powers defendant claimed to have to communicate with spirits, all of which Mr. Rundel believed, she had absolute control over him and his business affairs; that, because of the fact that there was really nothing in any of her claims to supernatural powers, Mr. Rundel was defrauded and influenced against his will; and that all of the transfers above referred to were procured because of such fraud and undue influence.

[1] It seems to me that the fact that Mr. Rundel and Mrs. Holmes were Spiritualists has been unduly magnified in this litigation. "Spiritualism" is simply a form of religious belief, and what a person's religious views may be should not be inquired into in a judicial proceeding. 40 Cyc. 1011; Keeler v. Keeler, 3 N. Y. Supp. 629; 1 Matter of Halbert, 15 Misc. Rep. 308, 37 N. Y. Supp. 757; Matter of Vedder, 14 N. Y. St. Rep. 470; Matter of Rohe, 22 Misc. Rep. 415, 50 N. Y. Supp. 392; Matter of Vanderbilt, 3 Redf. Sur. 384.

In this country, where a man has the unquestioned right to worship God according to the dictates of his own conscience, whether he believes in one kind of religious teaching or another, or does not believe in any such teaching at all, is not a matter of so much importance when it comes to consider his rights in a court of justice. In this case it is not established that at any time during Mr. Rundel's last illness there were any communications with spirits through Mrs. Holmes, and even if he and defendant believed there were such spirits, and that through Mrs. Holmes Mr. Rundel had had communications with them, there is no evidence that would justify a finding that any such communications had entered in the slightest degree in the transfers sought to be set aside in this action. So far as this case is concerned, Mr. Rundel's religious views must not be permitted to be controlling. It is no more than just that they lie buried with him, and the mere fact that he and defendant were Spiritualists, and that at some time they had had seances and communications with spirits, as they believed, will not justify the inference that such belief was the inducing cause for the transfers in question.

Defendant denies absolutely any fraud or undue influence of any kind used to induce these transfers, but alleges that they were all voluntary gifts made by Mr. Rundel to her in testimony of his affection for her and as a reward for the unquestioned care and kindness she had shown him up to the time of his death.

Although at the times these transfers of personal property to defendant were made Mr. Rundel was a sick man, his difficulty appears to have been largely physical in its character. He had never had any serious illness up to the time he was taken sick in the summer of 1910, although for some time prior to that summer he had not been as robust as in former years. After returning from Atlantic City he was confined to his bed for a few weeks, but then rallied and was able to be up and around the house most of the time until his death, although he was only out of the house on three occasions. He sat in his rooms, visited with neighbors and friends as they would call on him, attended to his usual business, wrote letters and checks, and, so far as his mental powers were concerned, there is no evidence to justify a finding that they were in any way seriously impaired. On the contrary, the evidence is quite sufficient to justify the conclusion that at all times between the time of his return from Atlantic City in 1910 up to near the date of his death, November 5, 1911, Mr. Rundel was possessed of his usual mental faculties, and, so far as they were concerned, was entirely competent to transact all ordinary business, so the plaintiff's contention must rest entirely upon the claim that the transfers were procured by fraud and undue influence.

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 49 Hun, 636.

[2,3] Now "undue influence" means any improper or wrongfulconstraint, urging, or persuasion whereby the will of a party is overpowered, and he is induced to do acts in relation to the disposition of his property which he would not do if left to act freely and of his own volition, and whatever disturbs the free act and constrains a person to do with his property what is really against his will and purpose, and which he would not have done if left to himself, is "undue influence," whether exercised by physical force or by threats or by coaxing. It is impossible to describe or define with any great precision what undue influence really is, what the quality or extent of one mind over another must be to make it undue influence in the eyes of the law.

But the influence exercised by one person over another which the law would regard as undue and illegal must be of such a character as to destroy the free agency of the party who disposes of his property; but, no matter how slight the influence may be, if the free agency of the party is destroyed, it destroys also the act or acts which come from it-which are the result of it.

[4,5] Now if Mrs. Holmes by virtue of her associations with and relations to Mr. Rundel had such an influence over him with reference to his property, so that her will was substituted in place of his will, then such an influence might well be deemed undue influence which would destroy the acts resulting from it. But not every influence is undue influence by any means, and it would not be sufficient to avoid these transfers that they were obtained by legitimate influence resulting from honest and disinterested advice. Mr. Rundel, being a man of sound mind and competent, if not unduly influenced or defrauded, had a right to bestow his bounty upon the objects of his affection, and he had a right from gratitude to reward any person who had rendered him services. The idea cannot be too strongly emphasized that it is no part of the province of the court, or anybody else, to step in, and by a judicial inquiry and decision in effect say what Mr. Rundel ought or ought not to have done with his property. In this country a man who has industry, intelligence, and frugality enough to accumulate a fortune has a perfect right to dispose of it as he chooses, provided, of course, he is of sound mind, and that whatever disposition he makes of his property is understood by him and is his free and voluntary act.

[6] If however, Mrs. Holmes by reason of her position took advantage of any affection Mr. Rundel had for her and obtained these transfers unjustly, and if she, because of her intimate association with him, used her position to subdue and control the mind of Mr. Rundel and to deprive him of his free agency, then the fact that they were old friends and that she had been kind to him would make it no less a case of undue influence.

[7] It is almost impossible to establish undue influence by direct proof. If established at all, it must be made up of a variety of circumstances and little incidents, and must be gathered from all the facts surrounding the case; but whatever the character of the proof pre

sented with an idea of establishing undue influence, whether direct or circumstantial, it must be of the clearest and most convincing character. Evidence which raises a mere suspicion that Mrs. Holmes, because of the fact that she nursed and cared for Mr. Rundel, and had the opportunity, unduly influenced him, is not sufficient.

The case of Tyler v. Gardiner, 35 N. Y. 559, cited by counsel for plaintiff, is not a controlling authority to sustain his contention here, for the reason that the facts in that case are quite dissimilar to the facts in the case at bar. In the Gardiner Case the evidence was clear and convincing, not only that the daughter, who was the principal beneficiary under the will sought to be probated, had the opportunity to influence her aged mother, but that she actually had influenced and controlled her in the matter of making the will. The proof was clear and satisfactory that she was the means of getting her mother in a state of mind whereby she excluded her son, the contestant, from her home and premises. It also appeared that the will in controversy, as finally drawn, followed absolutely a written memorandum which had been prepared by the daughter, and was in her own handwriting; that, although her mother had been critically ill for some time, the son was not apprised of said illness, although he lived within 21/2 miles of his mother's residence; and that the entire conduct of the mother toward her son was changed after the daughter became a member of her family the fall before her death, and the disposition by Mrs. Gardiner of her property by her last will, which was made only a few hours before her death, was materially different from the disposition made by a former will and greatly to the advantage of the daughter.

In the case at bar, in giving securities to Mrs. Holmes after she had become his attendant and nurse, Mr. Rundel was pursuing a course similar to his transactions prior to her sustaining that relation to him, for it is established that before he was stricken with his fatal illness in August, 1910, he had made large gifts of securities to Mrs. Holmes. If these gifts had occurred so near the time of Mr. Rundel's death that they might be deemed deathbed transactions that is, if all the gifts had been made when he was in extremis and just before his death, as in the case of Tyler v. Gardiner, supra-the conclusion would have been irresistible that the transactions were the result of undue influence, but the gifts to defendant covered a period of many months, and with reference to many of them there is no evidence that Mrs. Holmes had anything to do with them until after the transfers had been made.

The case of Huguenin v. Baseley, 14 Ves. 273, a celebrated English authority, holds, in a case somewhat similar to this, that:

"The question is not whether she (the grantor) knew what she was doing, had done, or promised to do, but how the intention was produced; whether all that care and providence was placed around her, as against those who advised her, which from their situation, and relation with respect to her, they were bound to exert in her behalf."

Under the evidence in this case I do not see where defendant had taken advantage of her position with Mr. Rundel prior to the time he transferred to her the life insurance policy, to induce or influence him

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to transfer property to her; but, beginning with that transaction, it is quite clear to me that she actively interfered with his business affairs. [8] Mr. Rundel being ill and under defendant's constant care, it is plain that they did not deal on terms of equality, and, under these circumstances, where the stronger party has seemingly obtained an unfair advantage over the weaker one, and has obtained a very large amount of property from the sick person in her charge, transactions effected under such circumstances may be presumed void, as was held in Green v. Roworth, 113 N. Y. 462, 21 Ν. Ε. 165, and I think the relations between Mr. Rundel and the defendant were such as to create the inference that she dominated and controlled him with reference to the transactions in question beginning with the life insurance policy transfer and following on through each subsequent transfer involved in this controversy.

[9] The fact that Mr. Rundel was very ill at all times when the transfers in question were made, and that defendant was his nurse, and that while that relation existed he transferred to her securities exceeding in value half a million dollars, created a situation which naturally gave rise to suspicion as to their regularity and good faith and fully justified plaintiff in instituting this litigation. Indeed, the facts as disclosed here made a prima facie case in favor of the contentions of the plaintiff, which should shift the burden to the defendant of proving that the transfers in question were the free and voluntary acts of Mr. Rundel by evidence that was clear and satisfactory. In re Van Ness' Will, 78 Misc. Rep. 592, 139 N. Y. Supp. 485; Matter of Snelling, 136 Ν. Υ. 515, 32 Ν. Ε. 1006; Doheny v. Lacy, 42 App. Div. 218, 59 N. Y. Supp. 724, affirmed 168 N. Y. 213, 61 Ν. Ε. 255.

An attempt was made on the trial to show that during the progress of Mr. Rundel's illness defendant prevented his old neighbors and friends from seeing him; but while on some few occasions it appears that when he was asleep, or after consultation with him he did not care to see people, they were refused admittance, the great mass of the testimony shows that at all reasonable times old neighbors and friends of Mr. Rundel were permitted to see and converse with him.

The transfers sought to be set aside were made at various times covering a period of about 15 months, and, if any of them were brought about by an improper and undue influence exercised over Mr. Rundel by defendant, it does not necessarily follow that that influence applied and entered into them all, for the reason that the transfers occurred at widely different times and under varying conditions. The relations existing between Mr. Rundel and defendant as established by the evidence and the fact that she is so largely interested in the result of this litigation required that all the transactions which she claimed were gifts should be looked into with the greatest care, and, because as a witness she was so vitally interested, the weight attached to her testimony has been greatly lessened, although no attempt has been made to discredit her in any way excepting by contradictions of witnesses and discrepancies between her testimony given on the trial and the discovery proceedings in the Surrogate's Court.

Plaintiff has set forth in his complaint 11 different causes of action,

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