1 am unable to concur in the affirmance of any part of this judg■ment. . It seems to me that the plaintiff has entirely failed to prove the cause of action alleged in the complaint, and that the defendant Leonard R. Kerr has fairly met the burden resting upon him. 'Considering the relation that Leonard R. Kerr bore to his mother, the "trust and confidence reposed in him by her would throw upon him the burden of proving that a deed of his interest in the property which they held in common, executed by his mother to him, was her voluntary act and deed, without being induced by any undue or improper influence; but this is the extent of the burden that rests .upon him. This property belonged to the mother, was hers to do *111with as she wished, and it is not surprising that she desired to give it to this son. The question is, did she give it to him voluntarily, without compulsion or improper inducement, and has the son satisfactorily established that fact %
Row, it is clear that if this instrument, which is a conveyance of the property from the mother to the son, had been a will executed under the same circumstances as the deed was executed, there would not be a moment’s doubt as' to its validity. She, of those who advised her, chose to accomplish that result, not by a will, but by a deed; and while under the circumstances I can see no reason why a distinction should be made as to the proof necessary to establish the deed from that to establish a will,, we will consider that there is a distinction, and that, because this is a deed, the burden is upon the defendant Leonard R. Kerr to prove the fact that his mother voluntarily executed it.
The principal dispute of fact in this case is as to the inference to be drawn from facts proved. I shall not attempt to analyze this evidence, but shall only state some of the principal facts which are not disputed and which seem to me to establish that this deed was voluntarily executed and that no fraud or undue influence was used. The deed is presented executed by Mrs. Kerr, duly acknowledged before a notary public, and duly recorded. The notary public, who was also a lawyer and who prepared the instrument, is dead, and we are deprived of his statement as to the circumstances under which the deed was prepared, or his instructions from the grantor. Row the burden of proving that this deed was executed by Mrs. Kerr to'Leonard R. Kerr being upon Leonard R. Kerr, we have presented the deed so executed and duly acknowledged before an officer authorized to take the acknowledgment of such instruments. We are bound to give due effect to this acknowledgment as proof of the execution of this instrument. The person making the acknowledgment is dead, and the person before whom the acknowledgment was made is dead. The instrument stands as a legally executed instrument. It is proof of itself, without corroboration of the due execution of the instrument, and it is proof of the strongest character, not overcome by doubtful testimony, by a failure of recollection, nor by any evidence, but proof of the clearest and most cogent kind. The nature of such an instrument has lately been discussed *112"by the Court of Appeals in the case of Albany Co. Savings Bank v. McCarty (149 N. Y. 83). In that case the court, after considering all of the authorities as to the effect of such a certificate, determined what effect a trial court was bound to give to> it. It is there said: “We think that, as between the parties, a certificate of acknowledgment, when read in evidence, makes out a pítima facie case as strong as if the facts certified had been duly sworn to in open court by a witness, apparently disinterested and worthy of belief. The legal presumption of the proper performance of official duty by a public officer requires that this effect should be given it. * * * While the evidence is not conclusive, as the statute provides that ‘it may be rebutted and the effect thereof contested by a party affected thereby,’ it is of such a character as, standing alone, to send a case to the jury, so that they may decide between the probative force of the certificate, supported by the presumption that it states the truth, on the .one hand, and" the evidence produced in rebuttal, whatever it may be, on the other.” Assuming, therefore, that the burden of proof is upon the defendant Leonard R. Kerr to prove that his mother executed this deed, giving to this certificate of acknowledgment this effect, the mere pro- ■ duction of that certificate of acknowledgment proves that fact, subject to be rebutted by evidence tending to show that the deed was not duly executed by the grantor, and subject to be rebutted by evidence tending to show that this defendant Leonard R. Kerr, or some one else, had procured this execution by fraud, or had exercised over the grantor undue influence. Was there any such evidence? A careful examination of the testimony has satisfied me that there is not the slightest scintilla of evidence to rebut this presumption of a proper execution of this deed by the grantor.
Leonard R. Kerr was called as a witness for the plaintiff and was examined by her. . From his testimony brought out upon that examination, it appears that, with the exception of an incidental conversation some time before this deed was executed, in which an arrangement about this copartnership property was referred to, he had made no request, of his mother about the conveyance of this property, and that he had nó knowledge of the execution of the deed until about three weeks after it was executed. That testimony is not contradicted in the slightest degree by any evidence in the case. The *113execution, of the deed, therefore, was not procured by Leonard R. Kerr, nor did he have anything to do with it. The gentleman who prepared the instrument and before whom it was acknowledged was a lawyer and a notary public, against whom there is no suspicion of improper conduct. . He was an acquaintance of both Leonard R. Kerr and his mother. As before stated, he, is dead, and there is no evidence as to the instructions given by Mrs. Kerr as to the preparation of this deed; but in the face of. this testimony, there can certainly be no presumption that it was prepared at the request of any one except the grantor, or that it was not executed by her with full . knowledge of what it contained. There is also the uncontradicted evidence of one who was present at the execution of the deed and who was a witness to it. He swears that it was read over to the grantor; that she acquiesced in it after it was so read to her, ánd that she, herself, made her mark upon the instrument and acknowledged it to the notary. That evidence is not disputed, and it is not claimed that at that time Leonard R. Kerr was present, or had any communication with the grantor upon the subject of this deed. We have also the evidence of those about Mrs. Kerr, apparently entirely disinterested, who stated that both before and after the execution of this instrument she stated that it was her intention to give this property and business to her son Leonard. We have also the fact that immediately upon Leonard’s becoming acquainted with the execution of this deed, it was duly recorded in the register’s office, thus notice of its execution being given without any attempt of concealment during the lifetime of his mother. So, if there had been any impropriety in its execution, a word from any of those interested would have enabled the mother to have, taken the necessary steps to protect herself. How, these facts that I have stated are proved, either by witnesses called by the plaintiff or by the uncontradicted testimony of persons apparently entirely disinterested. It is important in this connection, to consider the probability of the grantor’s wishing to make such a disposition of her property. She had received this half of the hotel property under the will of her husband, who was the father of Leonard R. Kerr, her only son. Her other children, who were the full sisters of Leonard R. Kerr, were all dead, leaving, however, some descendants. She had *114also'the descendants of children by a former marriage, who were not connected at all with her husband, from whom this property came. For many years Leonard had assisted his. father in carrying on the business and in making it a profitable and valuable one. Her husband by his will had left one-half of the ■ hotel property and business to his son Leonard, and onedialf to his widow^ the grantor. Hone of her other children, so far as appears, had at all assisted in that business or was familiar in any way with- it. She had also inherited from her husband quite a large amount of other property which, upon her death intestate, would be divided equally among her children. Can it be said to be unreasonable or evidence of fraud or duress that, under the circumstances, the mother should give this hotel and the business connected therewith to the son, who had assisted in- building up-the business and making it valuable, who was familiar with it, and who could continue to conduct it profitably and well, rather than to allow it to be divided among all of her children, in which case a large proportion of it would go to those who were not at all connected with the one from whom she had received it? The fact that 'she considered it just that the son should have the other half of the hotel does not tend to prove that the deed was improperly obtained, as it possibly would in a case where a person who had executed a conveyance or will disinherited those who would, be- the natural object of her. bounty in favor, of a stranger. • Thus we have, as tending to sustain this burden thrown upon the defendant Leonard R. Kerr, the due execution and acknowledgment-of this instrument, which, as evidence, is of great weight, at least as strong “ as if the facts certified had been duly sworn to in open court by a witness apparently disinterested" and worthy of belief.” We have the corroborative evidence of a witness present when the.deed was executed uncontradicted. We have the uncontradicted evidence of a witness, made credible by the plaintiff herself, that the one to be benefited by the execution of the deed had no knowledge of its execution until three weeks after it was so executed; that then it was publicly recorded,' notice being given to all of its execution, without one suspicion being brought forward against it during the lifetime • of the grantor, and the fact that, from the circumstances surrounding the property and the method of its acquisition by the grantor, *115it was a most natural disposition to make of the property, coupled with a constant announcement by the grantor of her intention to make such a disposition of the property. How, what evidence has been adduced by the plaintiff to overcome the effect of this proof % Merely the evidence of children and grandchildren of the grantor who would be interested in the enforcement of this judgment, of conversations with this old lady during the last few years of her life, which are of the most uncertain character, and which, even if true, would not at all contradict in any essential particular the evidence offered by the defendant; and the fact that the executors of her husband’s will, of which the defendant was one, and the attorney that represented them, apparently have made some statements to the grantor as to the property left to her under that will,- which were not in all respects accurate; but it is not proved that Leonard R. Kerr had any knowledge of the transactions, that the executors or their attorney made any such statement to his mother, but, on the contrary, the evidence is that Leonard R. Kerr left all of the business relating to his father’s estate to two of the executors, who had particular knowledge of matters of that kind, and the attorney employed by the executors. There is. also some criticism upon Leonard R. Kerr as to his obtaining a lease of a portion of the premises in his own name instead of' in the name of himself and his mother, who were then copartners; but, in the absence of any claim on the part' qí Leonard that he owned that independently of his mother, or that he intended to defraud her in obtaining such a lease, or to hold it as against her or the copartnership, of whicli she was a member, the mere fact of taking such a lease in his own name, under the circumstances, is certainly no evidence to show that this deed was not properly executed. Considering the age of his mother, , the difficulty that she had in writing, and the fact that she was not in the habit of attending to business of this kind, it would not be at all unnatural for Leonard, one of the partners, to take the renewal lease in his own name and thus avoid the necessity of disturbing his mother by requiring her to execute it. There certainly is nothing shown to justify a finding that he intended to take this renewal lease and.hold it as against his mother, or those who would succeed to her interest. The court is unanimously of the opinion that the accounting cannot be set aside; that the conveyance of this hotel to *116Leonard R. Kerr and his mother by the executors was not wrongful, and that the hotel itself and business vested in them by the will, the execution of the power of sale not being necessary .to make them the owners of this property. All of this transaction, therefore, as between the executors and the mother, relating to the execution of the power of sale, is quite immaterial in determining this question. It seems to me' to throw no light upon the question as to whether or not "this grantor knowingly executed this conveyance. There is certainly not the slightest, evidence to show that the grantor was not, at the time she executed both of these instruments, of sound mind, perfectly able, to understand what she was doing; and I think the evidence is most, conclusive that she did understand what she was doing, and voluntarily and intentionally conveyed this property to her son; that this-deed was voluntarily and knowingly ■ executed to carry into effect, the intention of the grantor, and that, upon the evidence, any judg^ merit setting it aside was unauthorized; that the facts relied upon in the prevailing opinion, to show such fraud or undue influence, do-not really affect the question as to the execution of this instrument, at all, and have no probative force to overcome the presumption attached to the acknowledgment of the instrument before the officers-duly authorized to take such acknowledgment, and. the strong and uncontradicted evidence that such an instrument was made as the: free act and deéd of - the grantor. It is said that the grantor mentioned the fact that she was the owner of the property after the time this deed was executed, but the evidence "as to these statements-of - hers is quite uncertain. The time is not accurately fixed, and it. is all given by those who are interested parties in upholding this-judgment. It would be quite easily understood that, in consequence of this deed not having been delivered to the defendant until some time after it was executed,-and from. Mrs. Kerr’s ignorance as- to-the effect of such a conveyance, she might well have supposed that, the deed was to take effect'upon her death. • Such statements, being-admissions of a deceased person., are always received with great, caution, and under the circumstances it seems to me that they should be allowed but little weight in considering the question of the execution of a deed; but this opinion is already too long, as I simply intended to" state the result of my dissent rather than to enter-at; large into the reasons. - "
*117I think the judgment should be reversed and the complaint dismissed.
O’Brien, J., concurred.
Judgment modified as directed in opinion, and as modified affirmed, without costs to any party in this court.