Zaveski v. Kish.

• Decision Date: 26 April 1946
• Docket Number: 148/160.
• Citation: 46 A.2d 665
• Parties: ZAVESKI et al. v. KISH.
• Court: New Jersey Court of Chancery

46 A.2d 665

ZAVESKI et al.

v.KISH.

148/160.

Court of Chancery of New Jersey.

April 26, 1946.

Suit by Theresa D. Horwath Zaveski and another against Helen Kish for the invalidation of a deed.

Decision in accordance with opinion.

Syllabus by the Court

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1. Where a confidential relationship exists, and the grantors have stripped themselves of all of their property, the law proceeding upon the theory that, irrespective of undue influence, the grantors did not fully understand and appreciate the irrevocable character of the act nor foresee its legal consequences to themselves, for their protection casts upon the grantee the duty of showing that the grantors had the benefit of timely, competent and independent advice. That burden has not been sustained here.

2. The failure to incorporate in the deed, in accordance with the actual understanding, a clause of reservation to the effect that the grantors were to retain and enjoy the use and benefit of the premises during their lives, held, to furnish an additional reason for invalidating the deed.

Bertram Lefkowitz, of Trenton, for complainants.

Rudolph Eisner, of Trenton, for defendant.

JAYNE, Vice Chancellor.

The complainants desire a decree invalidating a deed executed and acknowledged by them on October 29, 1941, by which they conveyed to the defendant two parcels of real estate designated as Lots Nos. 872 and 873 in an area known as East Trenton Heights, in Hamilton Township, Mercer County.

The trial of the cause has introduced for consideration an assortment of factual elements: (1) the ages and manifest illiteracy of the complainants; (2) the relationship of trust and confidence, if any, between the complainants and the defendant; (3) the improvidence of the conveyance; (4) the lack of independent advice; and (5) the failure to include in the instrument a clause of reservation expressive of the intention and understanding of the parties. To those factual elements, as they may be resolved, the established equitable principles must be applied. Vide, Alpaugh v. Alpaugh, 135 N.J.Eq. 200, 37 A.2d 825; Campana v. Angelini, 132 N.J.Eq. 285, 28 A.2d 223, and cases therein cited.

Counsel for the defendant, in the prelude to his very comprehensive brief, suggests that in cases of this nature, there is generally ‘an instinctive sympathy for the ‘underdog transferor’.' Yes, in a very modified sense perhaps that is true. Traditionally, equity is alert to afford protection to the infants and to the aged, to the mentally incompetent, to the victims of deception, and to the rights of minorities. The intrusions of equity are probably disappointing to those who are obliged to surrender their coveted gains, but in such interventions inheres one of the virtues of equity jurisprudence.

The complainants, husband and wife, are of foreign birth. Their testimony was elicited through the agency of an interpreter. It seems to be conceded that they are uneducated and illiterate. They are now advanced in years. The defendant is their niece, and she has evidently been a favorite relative. Indeed, at intervals she has resided with the complainants.

At the hearing the complainants ignorantly pretended that at the time they signed the deed they did not understand or realize that they were making any disposition whatever of their property. Cross-examination promptly exposed the falsity and incredibility of their pretensions in that regard.

The complainants were well known to the ‘case worker’ of the Hamilton Township Welfare Board. In 1941 the complainants were in dire need of financial aid. They were distraught with the anxiety that their home would be sold to recover accumulated delinquent taxes. The defendant was pursuing a remunerative employment, and with her earnings (and perhaps with some contributions from her brother) she rescued the property from the distressing tax liens, amounting to less than $300. Her beneficience in that emergency undoubtedly inspired the complainants not only with a sensibility of gratitude and affection for the defendant, but also a natural consciousness of their dependence upon her.

The circumstances do not so much affirmatively exhibit the dominant position of the defendant as they portray the subordinate dependence of the complainants. I do not infer that the defendant by her generous act had reduced the complainants to a state of complete subjection to her will, but I am impelled to believe that she had won their implicit trust and confidence.

It is with a realization of such an existing relationship between the parties that we view the complexion of the succeeding events. The complainants continued to be impecunious. The property was their domicile, and it and its contents comprised their only asset. The transfer of the property was...