Opinion
March 7, 1977
In an action to set aside a deed conveying an interest in real property from plaintiff's decedent to three of said decedent's sisters, the defendants appeal, as limited by a stipulation dated August 25, 1976, from stated portions of a judgment of the Supreme Court, Dutchess County, dated December 31, 1975, which, after a nonjury trial, inter alia, declared the deed to be invalid and awarded exclusive possession to plaintiff, theretofore a joint tenant with the decedent. Defendant appellant Santina Sparacio died after the taking of this appeal. By letter dated February 8, 1977, counsel for appellants advised this court that he has been engaged by the executors of the estate of Santina Sparacio to "pursue their appeal". By letter dated February 18, 1977, counsel for plaintiff advised this court "that the death of * * * Santina Sparacio will not affect the prosecution of this appeal." Judgment affirmed insofar as appealed from, with costs. The evidence adduced at the extended trial held herein amply supported a finding that undue influence had been exerted upon the decedent, an 84-year-old man, who had been hospitalized and under the influence of various medications. Experts agreed that the medications caused disorientation, impairment of cerebral functioning and a proneness to pressure and suggestions. The deed in question was executed without the decedent having the benefit of counsel and after last rites had been performed. Under these conditions the burden of proof, which is normally upon the plaintiff to show undue influence, shifted to defendants to demonstrate affirmatively that no undue pressures had been exerted. They have not met this burden. We have considered defendants' remaining contentions and find them to be without merit. Hopkins, Acting P.J., Martuscello, Latham and Damiani, JJ., concur.