Kelly v. Kelly

• Decision Date: 16 January 1931
• Citation: 153 A. 384
• Parties: KELLY et al. v. KELLY.
• Court: New Jersey Court of Chancery

153 A. 384

KELLY et al.

v. KELLY.

Court of Chancery of New Jersey.

Jan. 16, 1931.

Syllabus by the Court.

A transfer made by a widowed, aged, and invalid mother of all of her property to her daughter—resulting in the former's impoverishment—between whom there exists a relationship of trust and confidence, will not be sustained, unless it is clearly shown by the latter that the former well understood the legal, as well as the practical, effect and consequences of her act, and had the benefit of competent and independent advice relative to her proposed action. Syllabus by the Court.

Transfers so made are not prevented from being improvident, nor rendered immune from the application of the rule as to competent and independent advice, because of the existence of a mere verbal promise to support.

Syllabus by the Court.

The rule as to competent and independent advice is applicable with especial force to those cases where the purpose of a will is sought to be accomplished by a deed, and said deed of gift contains no power of revocation.

Syllabus by the Court.

Where, as here, proof of competent and independent advice is requisite, the burden is cast upon the donee, in order to sustain the gifts, to satisfy the court that such advice was actually given to the donor, who, in turn, well understood the character, effect, and consequences of her act.

Suit by Ann Kelly, for whom after her death was substituted Patrick A. Kelly and others, against Isabella Kelly.

Decree for complainants advised.

Bernard L. Stafford, of Paterson, for complainants.

Edward F. Merrey, of Paterson, for defendant.

LEWIS, Vice Chancellor.

This action is brought to set aside deeds of gift covering live tracts of land and a $2,500 mortgage, which were made by Ann Kelly, now deceased, to her daughter, Isabella, the defendant herein. The reasons assigned for their avoidance are: Improvidence, undue influence, lack of competent and independent advice, and the existence of a confidential relationship between the donor and the donee.

The evidence before me discloses that the donor died on September 17, 1929, at the age of about seventy-nine years, leaving her surviving Annie M. Harlin, Patrick Kelly, and Henry Kelly (complainants herein) and Isabella Kelly (the defendant herein), who were her only children and heirs at law. For more than twenty-five years, immediately preceding her death, she, being a widow, earned her livelihood and accumulated her property by keeping a rooming house in one of her properties. In the performance of the duties in connection with the conduct of her said business, as well as of those in and about her own household, she was assisted by the donee, who alone of all her children had remained unmarried and continued to make her home with her mother—her sister and two brothers each having married and established their own separate homes, away and apart from that of their mother, for more than eighteen years preceding her death.

The donor was afflicted with various ailments and physical disorders, which, during the last fifteen years of her life, kept her in bed for protracted periods, each of which was of quite frequent recurrence. As time progressed, her sufferings became aggravated to such an extent that, with the exception of but few occasions, she was forced to spend the last five years of her life in bed. Throughout her protracted illness and almost complete helplessness, she received the kindly ministrations and almost constant care and attention of the donee, who at the same time was her companion, nurse, and servant as well.

The ravages and progressiveness of her ailments had so sapped her vitality and powers of resistance that, on July IS, 1928, she took a turn for the worse, her condition became, precarious, and her life was despaired of. It was on this day that the donee herself notified her sister, by mail, that their mother "was very sick, had taken a turn for the worse, and that there was no hope for her." It was under these circumstances, and while in this condition, that the donor, on July 18, 1928, executed the deeds in question, conveying all of her property to the donee—completely stripping herself—and thereby changed her condition from one of comparative comfort and affluence to one of complete poverty and destitution.

On December 29, 1928, or less than six, months thereafter, the donor filed the present bill of complaint, praying that said transfers be set aside because they were procured through fraud and undue influence, without consideration, and without the benefit of competent and independent advice. Due to her disability, her testimony was taken at her bedside on June 4, 1929, by a special master appointed for said purpose by order of this court. She, however, passed away before the case was concluded. Upon her death being noted, the court, upon their application, ordered the present complainants to be substituted as parties complainant.

The deeds of gift, made and given under the circumstances and conditions hereinabove stated, contained no provision for the donor's support, nor any power of revocation. Although the law does not prohibit such action on the part of the aged and infirm, it nevertheless circumscribes same with certain safeguards in order to protect the rights and interests of the donor, especially where the relation existing between him and the donee is one of trust and confidence. Before it will sanction or approve of such a gift, that law will demand that it be shown that the donor had the preliminary benefit of competent and independent advice and fully comprehended the legal, as well as the practical, result of his action. It is the settled policy of this state that a court of equity, moved by the apparent improvidence of such a gift, will cast upon the donee the burden of showing that all was fair, open, voluntary, and well understood by the donor, after he had received the benefit of competent and independent advice. Haydock v. Haydock's Ex'rs, 34 N. J. Eq. 570, 38 Am. Rep. 385; Mott v. Mott, 49 N. J. Eq. 192, 22 A. 997; Hall v. Otterson, 52 N. J. Eq. 522, 28 A. 907; Otterson v. Hall, 53 N. J. Eq. 695, 35 A. 1130; Slack v. Rees, 66 N. J. Eq. 447, 59 A. 466, 69 L. R. A. 393; Post v. Hagan, 71 N. J. Eq. 234, 65 A. 1026, 124 Am. St. Rep. 997; Soper v. Cisco, 85 N. J. Eq. 165, 95 A. 1016, Ann. Cas. 1918B, 452; Jacobus v. Waits, 86 N. J. Eq. 148, 97 A. 958; Clark v. Clark, 87 N. J. Eq. 504, 101 A. 300.

This rule as laid down by all of the...