Post v. Hagan

• Decision Date: 04 March 1907
• Parties: POST v. HAGAN et al.
• Court: New Jersey Supreme Court

65 A. 1026

71 N.J.E. 234

POST

v. HAGAN et al.

Court of Errors and Appeals of New Jersey.

March 4, 1907.

Appeal from Court of Chancery.

Action by Henry Post against Sadie Hagan and others. From a judgment in favor of defendants (61 Atl. 566), plaintiff appeals. Reversed, with directions.

James A. Gordon, for appellant. Charles C. Black and William T. Hoffman, for respondents.

GARRISON, J. To the facts found, and found correctly as we think, by the learned vice chancellor (61 Atl. 566), he applied the rule as to undue influence laid down in Haydock v. Haydock's Ex'rs, 34 N. J. Eq. 570, 38 Am. Rep. 385; whereas, in our opinion he should have applied the rule as to independent advice laid down in this court in Slack v. Rees, 66 N. J. Eq. 447, 59 Atl. 466, 69 L. R. A. 393.

Both cases were decided by this court, and the essential difference between them is that the rule of Slack v. Rees has specific application to cases in which the gift, if valid, has the effect of stripping the donor of all or practically all in his property; whereas, the rule followed in Haydock v. Haydock applies generally to gifts that bear no such relation to the donor's entire estate.

Slack v. Rees goes further than Haydock v. Haydock, to Just the extent required by this additional circumstance that marks the distinction between them.

This distinguished circumstance, namely, that a person already aged or infirm or otherwise dependent should give to the one upon whom he thus depends practically his whole living beyond recall, and at the very time when apparently he had most need to retain it, raises in the mind of a chancellor the presumption that the donor may not have appreciated the irrevocable character of his act, or that he did not foresee its legal consequences to himself. This presumption of apparent improvidence gives rise to the special rule followed in Slack v. Rees, which may be called the rule of independent advice. By force of this rule, if a person upon whom another has in fact come to be dependent accepts a gift from such dependent person of all of his or her estate, a court of equity, moved by the apparent improvidence of such gift, casts upon the donee the burden of showing that the donor had the benefit of proper independent advice. "Proper independent advice," in this connection, means showing that the donor had the benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect, but who was furthermore so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidently as to the consequences to himself of his proposed benefaction.

The practical distinction between this rule, and that applied by the learned vice chancellor in the present ease, is so clearly pointed out by Chief Justice Gummere, in Slack v. Rees, that I cannot do better than cite here a pertinent extract from the opinion delivered by him in that case, the essential facts of which, by the way, were exactly those of the case now before us: "The normal relation of parent and child, as it had existed in earlier years, had been reversed, and the daughter had come to be the guardian of the father. In this situation the law presumes that a gift made by the parent to the child is the product of undue influence, and casts upon the latter the burden of proving the contrary. A decision upon this point in the case, however, is rendered unnecessary, as we conclude that the conveyance must be set aside, because, in making it, the donor did not have the benefit of competent and independent advice as to its effect."

"That the absence of such advice will invalidate a deed of gift, which contains no power of revocation, where a relation...