Waesche, Francis and Hughes. The opinion of the court was delivered by Hughes, J.s.c. (temporarily assigned).
[22 NJSuper Page 399] This appeal is from a judgment rendered in the Chancery Division of the Superior Court in favor of Helen C. Vezzetti and Mae Horn, who sued as administrators of the estate of their mother, Mary Shields, to recover for the benefit of such estate money and bonds of which defendants secured possession in the decedent's lifetime. The defendants-appellants are Andrew M. Shields
and Rose Shields, other children of decedent, who are, respectively, aged 53 and 63 years and who had always resided with her in her home. A fifth surviving child, Lillian Neumann, was not a party to the litigation. Mrs. Shields, at about 90 years of age, died intestate on April 13, 1950. Judgment went against Rose Shields for $6,000 and Andrew M. Shields for a sum in excess of $39,000, after allowing him a credit for certain funeral expenses. The appellants challenged the sufficiency of the evidence below to support the court's decision that they had obtained these assets from one toward whom they stood in a confidential and dominant relationship, and had failed to sustain their burden of proving what our courts have said is necessary under the "rule of independent advice." Hall v. Otterson , 52 N.J. Eq. 522 (Ch. 1894), affirmed 53 N.J. Eq. 695 (E. & A. 1895); Post v. Hagan , 71 N.J. Eq. 234 (E. & A. 1907).
The trial developed an evidential picture of a widowed mother whose life was devoted over a great span of years to the able and self-sufficient leadership of her family and home; of a persistent, extreme frugality of daily life that resulted in her accumulation in various banking accounts of more than $46,000; of residence in a close family relationship with defendants until her death; of the leaving of the family home by the daughters who married, but who sustained over ensuing years a close and friendly relationship with their mother; of the mother's gradual deterioration in health signalized by a stroke in 1942, which incapacitated her to a certain extent; of increased sickness and enfeeblement, especially during the last year or two of her life, due in part to a cancerous open ulcer of the breast, which was inoperable because of her advanced age; of her hospitalization for this major ill in 1949 and the unavailing use of deep X-ray therapy thereon; of her discharge from hospital and return to her home but a few months before her death, which was caused immediately by cardio-vascular renal disease, including complications due to the cancer and arteriosclerosis. The medical and other evidence produced by the
plaintiffs amply supported the conclusions of the learned court that in this evening of her life her relationship with the children with whom she lived, so changed as to alter the relative positions of their wills and daily being, she becoming dependent upon, and subject to them, and they dominant as to her.
It was in this setting that the defendant Andrew M. Shields so manipulated the monies thus painstakingly accumulated by his mother, as to be in possession or control of all of it at her death, with the exception of bonds of the value of $6,000, which she had turned over to Rose Shields about September 9, 1949. The opinion of the court below describes the mechanics of these transfers: --
"Prior to July 14, 1948, the decedent had accounts in three banks in her sole name, and according to a stipulation in the pretrial order, the banks and the amount which she had on deposit are as follows on the dates given, which are those upon which was made the first transaction with which we are concerned: July 14, 1948, Hudson Trust Company, Hoboken Branch, $6,906.50; September 9, 1949, Hoboken Bank for Savings, $26,106.08; December 1, 1949, Provident Institution for Savings in Jersey City, $13,438.65.
On July 14, 1948, Andrew's name was added to the account No. 13769 at the Hudson Trust Company and he acquired the right to draw upon it. On November 30, 1948, he withdrew the sum of $3,750. and with it purchased ten U.S. Savings Bonds -- Series E having maturity value of $500. each. These bonds on his application were inscribed in the name of Andrew Shields or Mrs. Mary Shields. On January 24, 1949, he withdrew the sum of $1,851.96 from the account and on the same date made application for the purchase of two U.S. Savings Bonds -- Series E having a maturity value of $1,000. each, for the sum of $1,500. These bonds were inscribed in the name of Andrew M. Shields or Mrs. Mary Shields. This withdrawal closed the account. In January, 1950 he surrendered the bonds just mentioned as well as an additional U.S. Savings Bond -- Series E having a maturity value of $1,000. and inscribed in the name of himself or his mother, and received in exchange therefor U.S. Savings Bonds -- Series G, one in the denomination of $5,000. and the other of $1,000.
On September 9, 1949, Andrew and the decedent went to the Hoboken Bank for Savings where they transacted business with John Jacob, its chief clerk. Andrew's name was added to account number 169315 in his mother's name, and both of them on that occasion signed an
agreement with the bank, whereby among other things either or the survivor might draw on the account. Because the decedent signed her name with great difficulty, Mr. Jacobs caused her fingerprints to be placed upon the card. At the same time she transferred from account 169312 to the joint account the balance therein of $7,094.49. She signed the draft for this sum by her mark and her fingerprints appear upon the face of the draft. As the result of this transaction, there was $26,106.08 in the joint account. On the same day Andrew signed a draft on the account for $15,000. and he made application through the said bank for the purchase of U.S. Savings Bonds -- Series G in the amount of $9,000. to be inscribed in the name of Mrs. Mary Shields or Andrew M. Shields, and a like application for the purchase of U.S. Savings Bonds -- Series E having a maturity value of $8,000. to be inscribed in the name of Mrs. Mary Shields or Miss Rose M. Shields. On the same occasion he withdrew from the joint account the further sum of $1,000. He testified that this sum in cash was given to decedent. Jacob had no recollection as to whom the cash was given. The reason for her taking the sum of $1,000. does not appear.
The decedent signed a draft dated November 18, 1949, drawn on the Provident Institution for Savings in Jersey City and payable to the order of Hoboken Bank for Savings, for the balance of account number 58404 and interest. This draft was honored and the sum of $13,438.65 was paid to the latter bank on December 1, 1949, which credited it to the joint account of the decedent and Andrew.
On January 10, 1950, Andrew went to the Hoboken Bank for Savings and drew the sum of $12,000. from the joint account and with it purchased through the bank U.S. Savings Bonds -- Series G in the amount of $12,000. and requested that the bonds be inscribed in his name. On the same day, he withdrew the balance in the account, namely $11,637.32, opened a new account, number 250923, in the same bank in his sole name and deposited the said sum therein. On February 27, 1950, he withdrew the sum of $7,500. from this account and on the following day opened an account in his name at the Greenwich Savings Bank in New York City with a deposit of $7,500. No further deposits were ...