Decker v. Waterman.

donee than his own. And such influence must be specially directed to accomplish the thing done. (Gardner v. Gardner, 34 N. Y., 161.) If the mind of the donor was brought to a purpose preconceived by the donee for his own advantage, by an influence the donor could not escape, under the circumstances in which she was placed, and which was deliberately used to effect such purpose, then that influence, or its exercise, was undue and improper. (Tyler v. Gardner, 35 N. Y., 596. Bergen v. Udall, 31 Barb., 25.) As before remarked, this gift to Waterman should be treated largely as a testamentary affair. It certainly was concurrent with the making and publishing of a will and testament - both prepared by the same attorney, and executed with no less form and solemnity. Mrs. Decker was sick, and beyond much doubt, feared that she might not recover from such illness. By the terms of her will, together with the gift to Mrs. Bevier, and the gift to Waterman, she disposed of all her estate, designating, in all, four distinct persons as the objects of her bounty.

Testamentary bequests, made by a testator for the benefit and advantage of those who hold fiduciary relations towards him, are not judged altogether by the same severe rule that gifts inter vivos are; the same presumptions are not indulged in, as to fraud and undue influence. A gift by will by a cestui que trust to his trustee, by a principal to his agent, by a client to his attorney, or by a ward to his guardian, is upheld on less evidence that there was no fraud or undue influence, than is a gift in presenti. (Hill on Trusts, 158, margin and notes; Hinson v. Wetherill, 5 De G., M. & G., 301.) If, however, the facts disclose that the person taking the benefit be instrumental in procuring the bequest, then the rule would not be modified towards him.

There is no direct evidence in the case, that Waterman suggested this donation to himself. As against its validity, the whole proof rests in presumption. In the

Decker v. Waterman.

evidence of Mr. Goff, we have the idea suggested that before he was called in to prepare the conveyance, the matter had been up and considered, between Mrs. Decker and Mr. Waterman; for Goff states that when he commenced to draw the will, Mrs. Decker said to him that Waterman was going to pay off the legacies mentioned in her husband's will. The plaintiff and her husband testify, in substance, that in April preceding the transfer, and at the time Mrs. Decker came to their house in company with Waterman, he said, in speaking of her sickness "that they did not expect her to live, and they got her to make a will," and made no mention of the assignment. Waterman denies making any such remark. Mr. Goff further states that he conversed with Mrs. Decker, and learned from her the provisions of the will then made, and that she communicated to him what she wanted done with the bonds and mortgages; that after they were prepared, the same being done in her presence, they were-both the will and the assignment -read over and explained to her, before execution; that the conversation about the business was had aside from the family; that Mrs. Decker, in speaking of Waterman, said that he had lived with them when he was a boy, and he got the impression from her remarks, that Waterman was brought up in their family. Mr. Miller, who was present and witnessed the execution of the will, confirms fully the statement of Mr. Goff, in most particulars, and also says that Mrs. Decker told him that she was distributing her property, and that she wanted Waterman to have the balance of mortgeges, after paying Mrs. Bevier $1,000, and the legacies.

If the usual reliance is placed on this evidence, such as is accorded to unimpeached witnesses, it goes very far in meeting the presumptions of the law, that the position and influence of Waterman brought Mrs. Decker's mind to the making of this gift, and to establish that it was her free act and disposition, being moved by feel

Decker v. Waterman.

ings of kindness and affection towards Waterman. Waterman had done her no great favors, nor put her under many obligations, since the death of her husband. All that he had done had been compensated in a pecuniary reward ample and generous enough. No where in the evidence are the personal characteristics of Mrs. Decker described; nor is it disclosed what was the strength of her mind, and the nature of her disposition. Whether she easily submitted to the suggestions of others, or not, cannot be very satisfactorily determined. It does appear, however, that by the will then made, she gave the balance of her property-some seven or eight thousand dollars-to the plaintiff and the wife of Waterman; that they are her nieces; and it is not disclosed that she had any other blood relations. Mr. Goff had acted, before this, as the attorney of Waterman, and afterwards acted as his attorney in defence of a suit prosecuted against him as executor of Mrs. Decker's will. This circumstance causes a degree of suspicion that the attorney was brought in to aid his client in effecting an arrangement beneficial to himself; and that if friendly suggestions were needed to be made, they would not be omitted, on his part. Goff swears, however, that Waterman said nothing, beyond asking him to come to his house and prepare the will. If the negotiations were intended to be fair and honorable, the calling of his own attorney was also a very proper and natural course. It is a circumstance to be weighed in all its bearings.

I am fully convinced that if this gift to Waterman had been embraced in the will that day made and executed, as a bequest to him, and such will had been left by the testatrix to stand; and the same were offered for probate, on the proofs here made, no court would reject the same on the ground that the devisee procured the same by fraud or the exercise of undue influence over the testatrix. (1 Jarman on Wills, 44, and note.)

The People v. Ingersoll.

I am unable to see why a gift inter vivos, made under like circumstances, cannot be upheld, as against the claim of those who take by inheritance.

The plaintiff has not seen fit, in any degree, to disturb the final accounting had before the surrogate, but has acquiesced in the decree made by the surrogate.

In view of the conclusion reached, that by the terms of the will the plaintiff has failed to establish any title to the property, she must pay the defendant, John H. Waterman, his taxable costs.

Judgment for defendants.

[ORLEANS SPECIAL TERM, October, 1876. Barker, Justice.]

THE PEOPLE vs. JAMES H. INGERSOLL, impleaded with others.

Money borrowed upon the credit of county bonds which the county was authorized by statute to issue and is legally liable to pay, becomes the property of the county the moment it reaches the hands of the county treasurer, or is deposited and placed to his credit as such treasurer, in bank.

The chamberlain of the city of New York being, ex officio, treasurer of the county of New York, the receipt of money by him, as such treasurer, is a receipt of it by the county.

And where moneys so placed in the county treasury are, in pursuance of a corrupt, fraudulent and unlawful combination and conspiracy to that end, by individuals, drawn out of the treasury, and fraudulently divided between such persons and others, an action will lie against such persons, to recover the moneys back, and damages for the fraud perpetrated upon the county.

In such a case, the county, being the owner of the property fraudulently obtained, is the "real party in interest," and the proper party to bring the action.

The people of the state, by their Attorney-General, cannot maintain an action against the confederates to recover back the moneys so fraudulently taken and converted, or to recover damages for the fraudulent conspiracy and conversion.

No complete determination of the controversy in respect to such moneys, or damages, can be had, to which the county is not a party.

Power or right of the court to order an amendment of a complaint, upon the trial.

DE

The People v. Ingersoll.

EMURRER, by the defendant Ingersoll, to the complaint.

Francis C. Barlow (Attorney-General,) Charles O'Conor, Wm. M. Evarts and W. H. Peckham, for the plaintiffs.

E. W. Stoughton, D. D. Field and Elihu Root, for the defendants.

HARDIN, J. On the 26th day of April, 1870, the defendant Hall was mayor of the city of New York, the defendant Connolly was comptroller of said city, and the defendant Tweed was president of the board of supervisors of the county of New York. On that day, the legislature passed an act entitled "An act to make further provision for the government of the county of New York," which contained, in its 4th section, the following, viz.:

"§ 4. All liabilities against the county of New York incurred previous to the passage of this act shall be audited by the mayor, comptroller and present president of the board of supervisors, and the amounts which are found to be due shall be provided for by the issue of revenue bonds of the county of New York, payable during the year 1871, and the board of supervisors shall include in the ordinance levying the tax for the year 1871, an amount sufficient to pay said bonds and the interest thereon. Such claims shall be paid by the comptroller to the party or parties entitled to receive the same, upon the certificate of the officers named herein." (Laws of 1870, p. 878.)

In October, 1871, this action was brought by the Attorney-General, and an order of arrest for "deceit and fraud” was issued by Justice Ingraham, holding the defendant Tweed to bail in the sum of $1,000,000.

In December, 1871, a motion was made, at a Special