Brandon's Estate, Matter of

• Decision Date: 18 February 1982
• Citation: 448 N.Y.S.2d 436,55 N.Y.2d 206,433 N.E.2d 501
• Parties: , 433 N.E.2d 501 In the Matter of the ESTATE OF Alice BRANDON, Deceased. Ann MURPHY et al., Appellants. Ethel BASHNAL, as Executrix of Alice Brandon, Deceased, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 436

448 N.Y.S.2d 436

55 N.Y.2d 206, 433 N.E.2d 501

In the Matter of the ESTATE OF Alice BRANDON, Deceased Ann MURPHY et al., Appellants Ethel BASHNAL, as Executrix of Alice Brandon, Deceased, Respondent.

Court of Appeals of New York.

Feb. 18, 1982.

John R. Kelligrew, White Plains, for appellants

William A. Egan, Jr., White Plains, for respondent.

OPINION OF THE COURT

JASEN, Judge.

In this discovery proceeding brought by the executrix to recover property obtained by appellants from the decedent by means of fraud and undue influence, we are asked to decide whether it was error to admit evidence of two prior judgments decreeing that one of the appellants had engaged in fraud and undue influence in obtaining property from two other elderly individuals.

The record discloses that the decedent, Alice Brandon, was rather frugal by nature. For example, it was said that she used an egg timer while making long distance telephone calls. As a result of her temperate life-style, decedent had managed to amass a tidy sum. Unfortunately, the onset of various ailments, including terminal cancer, made it impossible for the 75-year-old widow to continue to care for herself, and, in December, 1976, she visited the Friendly Acres Home for Adults with the thought of spending her remaining years there. At Friendly Acres, decedent met the owner and operator of the nursing home, appellant Ann Murphy. In conversations with Mrs. Murphy, decedent expressed some concern about her ability to adjust to the institutional life-style at Friendly Acres. Thereupon, Mrs. Murphy offered to take decedent into her private residence, a luxurious home located adjacent to the grounds of a Westchester country club. Decedent quickly accepted this offer and moved into the Murphy home on or about September 1, 1977, paying $600 per month for room and board.

In the months that followed, decedent became almost totally dependent on Mrs. Murphy, and the decedent's family and friends found it increasingly difficult to communicate with her. When they did see her, decedent indicated that she was displeased with her new home. In addition, decedent's health became progressively worse, and, on September 24, 1977, she apparently suffered a stroke. Yet, perhaps the thing that perplexed her friends and family the most was the drastic change in decedent's personality immediately after moving into the Murphy home. A person who characteristically did not share her wealth with even those who were closest to her, decedent began showering her new landlord with numerous "gifts". Most notably, decedent provided Mrs. Murphy with the money to purchase a Mercedes-Benz automobile at a cost of approximately $20,000. In addition, decedent agreed to finance a trip to Florida for herself, Mrs. Murphy and the appellant Mortimer C. O'Brien, Jr.

Alice Brandon died less than one year after moving into the Murphy home. During the last eight months of her life, nearly $130,000 was transferred from the various accounts in her name, usually with some form of "assistance" from Mrs. Murphy. It is undisputed that when decedent entered the Murphy home in September, 1977, she had a net worth in excess of $150,000. Upon her death on May 3, 1978, only $35,000 could be located.

The executrix then instituted this proceeding pursuant to SCPA 2103 seeking to recover the assets of the estate of Alice Brandon from the appellants. As a result of a demand made by the executrix (see SCPA 502), the matter was tried before a jury. Over objection, the executrix was permitted to question Mrs. Murphy about two prior judgments that had been entered against her. Specifically, Mrs. Murphy admitted on the stand that one Daniel Sullivan, while a resident in the Murphy home, had set up a trust account for her benefit, but that a judgment had been entered in 1976 ordering the return of the trust corpus to the Sullivan estate on the ground that the trust was the product of undue influence exerted by Mrs. Murphy on the elderly gentleman. Mrs. Murphy also admitted that one Louise Metz, while a resident in the Murphy home, had executed a will that was denied probate in 1978 upon a finding that it was the result of undue influence and fraud engaged in by Mrs. Murphy. By coincidence, Mrs. Murphy happened to be the principal beneficiary under that will.

The Surrogate ruled that the testimony concerning the two prior judgments was admissible as parts of a common scheme or plan by Mrs. Murphy to obtain money from elderly people by means of fraud and undue influence. In charging the jury, however, the Surrogate stated that the testimony concerning the two prior judgments could not be considered as direct evidence on the question whether Mrs. Murphy actually obtained money from the decedent, but could only be used for purposes of determining whether she acted with the intent to obtain the decedent's property by means of fraud and undue influence. The jury found that the appellants had obtained a considerable portion of Alice Brandon's estate through the use of fraud and undue influence, and a decree was entered directing appellants to return that which was improperly obtained.

On appeal, a unanimous Appellate Division, 79 A.D.2d 246, 436 N.Y.S.2d 329, affirmed, stating that "the Sullivan-Metz matters were properly admitted as tending to establish a common scheme or plan under which appellants inveigle into Murphy's place of residence aged and ailing residents of her nursing home for the purpose of stripping them of their life savings." (79 A.D.2d at p. 248, 436 N.Y.S.2d 329.) We affirm, but on a somewhat different rationale than that relied upon by the court below.

A general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion. (See Richardson, Evidence §§ 170, 184.) Certain exceptions to this rule have been recognized where the evidence offered has some relevancy to the issues presented other than mere similarity. Although not subject to precise categorization, evidence of other similar acts will be admitted if it tends to establish: (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity. (People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286; accord New York Proposed Code of Evidence, § 404, subd. This appeal involves the second and fourth categories of the celebrated Molineux exceptions.

Where guilty knowledge or an unlawful intent is in issue, evidence of other similar acts is admissible to negate the existence of an innocent state of mind. (People v. Molineux, supra, at pp. 297-298, 61 N.E. 286; see People v. Schwartzman, 24 N.Y.2d 241, 247-249, 299 N.Y.S.2d 817, 247 N.E.2d 642; Richardson, Evidence §§ 172-176.) The focus here is not on the actual doing of the act, for the act is either conceded or established by other evidence. Rather, the element in issue is the actor's state of mind, and evidence of other similar acts is admitted under this exception because no particular intent can be inferred from the nature of the act committed. (People v. Molineux, supra; People v. Katz, 209 N.Y. 311, 327-328, 103 N.E. 305; Richardson, Evidence § 172.) Indeed, the intent exception has often been applied in cases where fraud is alleged because a fraudulent intent rarely can be established by direct evidence. (People v. Schwartzman, 24 N.Y.2d 241, 248, 299 N.Y.S.2d 817, 247 N.E.2d 642, supra; Beuerlien v. O'Leary, 149 N.Y. 33, 38-39, 43 N.E. 417; Richardson, Evidence § 184.) Similar considerations come into play when it is claimed that a person has exerted undue influence.

The intent exception is predicated primarily on a theory of increased probability arising from repetitive actions. According to Professor Wigmore: "The argument here is purely from the point of view of the doctrine of chances--the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them...