Thomas Toomey, Appellant, v. Bridget T. Whitney, Individually and as Administratrix, etc., of Nora Toomey, Deceased, Respondent

Thomas Toomey, Appellant, v. Bridget T. Whitney, Individually and as Administratrix, etc., of Nora Toomey, Deceased, Respondent. Valse representations inducing one of the next of Idn to sell her interest in an estate — when a release of such interest will be set aside. A decedent, who, at the time of her death,, resided in Belmont, N. 'Y., left her surviving as her only heirs at law and next of kin, a sister residing at Belmont, N. Y., and a brother residing in Missouri, who had not been in New York State for twenty-one years. After the funeral the brother, who Was entirely ignorant of the decedent’s circumstances, came to the State of New York and had a conversation with his sister, in the course of which the brother claimed that the sister informed him that the decedent’s estate amounted to but $200, while the- sister claimed that she informed him that the estate amounted to $1,800. Shortly thereafter, the brother, who was inexperienced in business and who had but little education, executed to his sister a release of his interest in the decedent’s estate for $150. ■ The estate concededly amounted to more than $2,700. ■ At the time the release was executed, the sister had filed a petition for letters of administration upon the decedent’s estate and such letters were subsequently issued to her. In an action brought by the brother to set aside the release, it was Held, that the sister occupied such a position of confidence toward her brothel as required her to fairly inform him of the condition of the decedent’s estate; That, under the circumstances, the release executed by the brother was not fairlj obtained and that it was improper to dismiss the complaint. Appeal by the plaintiff, Thomas Toomey, from a judgment oi the Supreme Court in .favor of the defendant; entered in the office of the clerk of the county of Allegany on the 24th day of December, 1903, upon the report of a referee dismissing the plaintiff’s complaint. Action to cancel and set aside a release of interest in the estate of Nora Toomey, deceased. Delmar M. Darrin,, for the appellant. Oha/rles JET. Drown, for the respondent. [MAJORITY — Stover, J.:] Stover, J.: Nora Toomey, a resident of Belmont, N. Y., died on March 4, 1900, leaving her surviving the. plaintiff, her brother, and the defendant, her sister, her only heirs and next of kin. Plaintiff resided at St. Joseph, Mo., and had no acquaintance in Belmont, in this State, where defendant resided, he having gone to Missouri when twenty years of age, and had not been in New York State for twenty-one years. He was inexperienced in business and apparently with but little education. He was not informed of his sister’s death until after the funeral. On March 14, 1900, defendant wrote to plaintiff that “ Nora had a little money and as soon as I am appointed administratrix I can tell what there is.” On April second plaintiff arrived at Belmont, and subsequently some conversation was had with defendant as to Nora’s estate, about which there is a dispute, plaintiff saying that defendant told him Nora had but §200, as $1,600 of the $1,800 which she had was in bonds of no value, while defendant contends that she told him the estate amounted to $1,800, and nothing was said about bonds of no value. On April eighteenth plaintiff executed a release of his i interest in Nora’s estate upon a consideration of $150. On April twenty-first defendant was appointed administratrix. It is conceded that Nora’s estate was worth more than $2,700. We think that under the circumstances of this case defendant t owed the duty to plaintiff to fairly inform him of the condition of the estate of his sister. She assumed to have knowledge, and he was entirely ignorant' of her circumstances. She seems to have been in possession of information as to its character and extent. She had already filed a petition for administration and, while not yet acting, was in such a position of confidence as to call for the fullest information from her to those with whom she was dealing, she was bound to disclose and had no right to conceal the extent of the estate to her own profit. There can be no doubt that plaintiff relied upon her statement, and it is almost incredible that he should have released his interest in the estate for $150, had he known that his share was at least ten times as much. Upon the defendant’s own statement the estate was larger than stated by her to plaintiff, and it is clear that for almost nominal consideration she has received a' large benefit. "We think that, under these circumstances, the release was not fairly obtained, and the dismissal of the complaint was error. All concurred. Judgment reversed and new trial ordered, with costs against the defendant individually to the appellant to abide, event, upon questions of law and of fact.