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Apgar v. Connell

Supreme Court of New York, Appellate Division

May 3, 1912

MARY A. APGAR, Respondent,
v.
ELLEN CONNELL, Appellant.

Page 425

APPEAL by the defendant, Ellen Connell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

The action was to set aside certain deeds upon the ground of fraud and false representations.

COUNSEL

Louis J. Somerville of counsel [Somerville & Somerville, attorneys], for the appellant.

Leander B. Faber of counsel [Charles H. Street with him on the brief], for the respondent.

CLARKE, J.:

On November 1, 1905, one Patrick J. Connell died intestate in the city of New York, leaving him surviving his widow, the defendant Ellen Connell, and as his only heirs at law and next of kin the following six children, namely, the plaintiff, Mary A. Apgar, then thirty-eight years of age, Christopher A. Connell, Joseph F. Connell, John A. Connell, Elizabeth G. Sullivan and Ellen V. Connell. At the time of his death he was seized and possessed of three parcels of real estate situated in the city of New York.

The intestate had been suddenly taken ill. The daughter, the plaintiff, had been summoned from Richmond Hill, where she resided, and the priest had been called in. She arrived at the house before he died. After the last rites of the church had been administered, the plaintiff and her mother and all the children being present, Father Matthew said in a loud voice, 'Is there anything you wish to say, Mr. Connell.' He said, 'Yes, I want to leave all my property to my dear little wife.' Thereupon the oldest son, Christopher, called up an attorney, Mr. Somerville, over the telephone, in the presence and hearing of the others. 'I told him to come and prepare the papers for my father's last statement, because I asked the doctor and the

Page 426

priest if he was able to do those things and they answered me yes.' But Patrick J. Connell passed away before Mr. Somerville arrived at the house.

The five other children all testified that they and Mrs. Apgar had a general conversation in regard to carrying out the last expressed wish of their father and that they all agreed to do so. Joseph Connell testified: 'We did have several conversations, but the conversation was the night that Mr. Somerville was there, and we were all up in the back room, and Mr. Somerville, how we would do this thing, and I finally said to Mr. Somerville in the presence of all of them, 'Couldn't we all sign our rights away by selling it to my mother for a time?' and he said, 'Yes.' Q. That is before the deeds were there? A. Yes, the day my father died, and Mr. Somerville says, 'Well, yes, you could do that, there are other ways.' And then Mr. Somerville said, 'Are there any of you boys married?' They all said no, except I. He said, 'Your wife will have to sign.' I said, 'I have no doubt my wife will be ready to sign with me, and I will explain it to her.' * * * In the meantime, after the death, we went down stairs and on the stairway leading to the basement my sister Mary asked what is meant and I explained to her. Q. What did you say? A. 'It means that we are to give all the property to my mother as my father wished.' She said, 'It is a good idea for us all to do that."

It was arranged that Mr. Somerville should draw the necessary papers and return on the Monday night following the funeral, which was on Saturday, and he did so. On that Monday night, accompanied by a notary, he went to the house and in the presence of all the children three deeds and a release were executed and acknowledged by all of the children. The testimony is that the papers were read and explained and that the transaction took about two hours and a half to complete. The deeds were acknowledged on November 6, 1905, and were recorded November eighth.

The summons in this action is dated October 21, 1909, and the complaint avers that 'On or about November 6, 1905, the defendant, well knowing the plaintiff's * * * condition, circumstances and inexperience and trustfulness, but ...


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