The opinion of the court was delivered by
Williams, Ch. J.The object of the bill appears to be to set aside a conveyance, or assignment, made by John Jackson to the defendant Edward Jackson on the 19th of July, 1837, and also a discharge executed by him, at the same time, to the defendant; and to call on the defendant to pay the sum due from him to the intestate at that time. It appears, from the report of the master, that there was due at that time from the said Edward, as allowed by the *346master, $6893.96, from which the master deducted a balance due to the defendant on book, a claim for losses by an attachment made on the goods of the firm of John & Edward Jackson, and for the services of the defendant, rendered to John Jackson in his life time, $3059.82, leaving the defendant, at that time, indebted to John Jackson $3834.14, which was released by the discharge, if it is effectual.
By the assignment, and out of the avails thereof, the defendant was authorized to retain the sum of one thousand dollars, and also a further sum of two thousand dollars, for a note given up to John, which was executed under such circumstances that it constituted no legal claim against the maker. So that it appears that, at that time, there was, by the discharge and assignment, transferred and given up to Edward Jackson, by John, a sum but little short'of seven thousand dollars. This, together with the circumstance that, by this transaction, the intestate parted with all his property, and that he was indebted to a large amount, and the creditors having presented their claims to the commissioners for allowance against his estate, required the administrator to investigate the business, and he has preferred this bill. We have been called on to examine the claims of the administrator and of the defendant, and determine, from the evidence, whether the administrator shall have this property for the benefit of the creditors and heirs of the intestate, or whether the defendant can, according to the principles of law, retain it. We are always to remember that a man may make any-disposition of his property he thinks proper, after satisfying the claims of his creditors. As to them, we can compel him to be just. His generosity is to be measured by his own will and sense of propriety, and not by any rule of law which we can lay down.
It appears from the evidence, that, in January, 1829, the intestate had notes and obligations against several individuals, which were inventoried at $50,759, and he probably had real and personal estate besides of the value of twelve or fifteen thousand dollars. At this time the defendant was in partnership with him in a store, and the intestate held notes against the firm of over fourteen thousand dollars. In the spring of 1829 the goods of the intestate were attached at the suit of Livermore & Dana,, and the goods belonging to the firm of John & Edward Jackson were also attached. In *347July, 1830, tlieir partnership was dissolved, and the defendant bought out all the interest which John Jackson had in the partnership property, for which he gave notes amounting to about $9082.98, besides paying $6000 in demands due to the company, part of which sum of $9082.98 was paid, and the residue constituted the indebtedness of the defendant to the intestate at the time the discharge and assignment were made. It further appears, that, within a few days after the date of the assignment and discharge, the intestate went away, stating that he was going to Upper Canada and Illinois, and returned the 24th of August, and died a few days thereafter.
Many witnesses have been examined on both sides to show the situation of the intestate during the last year and the previous years of his life ; and, although there is not much difference in the relation given by them as to his habits, and his continued and excessive use of spirituous liquors, yet there is a difference of opinion as to its effect on his understanding. There is a very great similarity in the relation given by the witnesses as to the effect of his habits of intoxication, and his situation, at the time he executed the paper in question, to what we find in the few cases reported, where a similar attempt has been made to invalidate an instrument executed by such a man at such a time.
It is somewhat singular, but so it is, that there has always been a propensity to underrate the effects of intoxication on the mind and faculties of individuals, while all will agree as to its general tendency. The individual will always have credit for greater talents, higher powers of mind and intellect, and better qualities, than he in fact possesses. The contrast between the man when intoxicated and when sober is so great, that, in drawing the comparison, we are apt to give him credit for more than he would be entitled to, if there was less diversity in his habits and pursuits. There can be no doubt in my. mind but that the habits of Mr. Jackson did undermine his physical and mental powers ; that they produced, as is the usual effect of such habits, an incapacity to do business; rendered his neighbors and friends distrustful of his ability and capacity, and kept them watching, even in trivial matters, for a sober moment in which to transact business with him, and did induce them, as it did Mr. Keeler, who wished-to make a settlement with him, to go early, before he got his bitters, and then to make a sacrifice *348rather than not effect a settlement; — and it had also the effect to make him distrustful of his family; and hence that morbid feeling towards his wife and children, which such a man, in such a state, is too apt to indulge. It appears, that, so sensible was the intestate of this infirmity, he refused to attend to business, when indulging his appetite, — which, unfortunately, was too frequently' the case, — ■ and that he was obliged to prepare himself by abstinence, in order to endeavor to recall some glimmering traces of that energetic mind which had formerly distinguished him, before he would attempt to transact any important business.
It is sufficient to say, — without going minutely into the testimony, — that, from the evidence of Mr. Lyon, Mr. C. W. Conant, Mr. Field, Mr. Parkhurst, John Conant, Joseph Simonds, Gov. Jennison, Mr. Felton, Mr. Marsh, Mr. Briggs, Mr. Button, Mr. Sprague, Mr. June, and Mr. Starr, on the part of the complainant, as also from the testimony of the defendant’s witnesses, it is apparent that, for a considerable time before his decease,' and especially for the last six months or year of his life, he was, for a considerable part of the time, incapable of knowing the nature, effect, and consequences of a contract, and therefore unfit to transact business of any great importance; and that, finally, he was reduced to that state of bodily and mental imbecility, on his return just before his death, described by Mr. Clarke. But, during most of this period, there were times when he appeared so far sober that his contracts made at those times could not be avoided on the ground of intoxication and want of capacity merely, unless they were so grossly unequal ánd unreasonable as to afford evidence that the appearance was deceptive, and that the intellect was clouded, obscure, and confused.
The evidence tends to show that Mr. Jackson, at the time he executed the writings in question, was not in such a state of intoxication, as that his contracts would be void at law for want of capacity ; the witnesses to the writings, Mr. Ketchum and Mr. Davenport, Mr. Bliss, who was in the store, and Mr. Hall, the magistrate before whom a discharge of a mortgage was acknowledged, say that at this time he was sober; and it is undoubtedly true, that a person, who seeks toAnvalidate an instrument on account of the intoxication and consequent want of capacity of the person executing it, takes upon, himself the burden of proof, as the presumption is against a person’s being in that state.
*349The principles, on which courts of equity, as well as courts of law, proceed in relation to the effect of intoxication in affecting contracts, have evidently undergone a considerable alteration. In the time of Lord Coke a party could not set up intoxication in avoidance of his contract. Afterwards it was considered, that it could not be set up, unless it was procured by the other party ; but now it seems to be determined, that, if a person was so intoxicated as to be incapable of the exercise of his understanding, he may avoid a con-, tract made while in that state. Equity will not lend its aid to enforce a deed, or contract, obtained from a man when intoxicated ; and, in relation to persons whose minds are prostrated by a course of intoxication, and who have become stupefied from previous inebriation, so as to be incapable of judging upon the propriety of what they do, a court of equity will make a strict examination, as to whether the instrument does not contain evidence that advantage was taken of those habits. 1 Ves. 43.
In the case of the Earl of Chesterfield v. Jansen, reported in Cooper, but more particularly in 2 Ves. 155, Lord Hardwicke enumerates the seveval species of fraud, against which a court of equity will relieve, and, under the second head, says, “it may be apparent, from the intrinsic nature and subject of the bargain itself, that it is such as no man in his senses, and not under a delusion, would make, on the one hand, and as no'honest and fair man would accept, on the other.” Under the third head he says, “ fraud may be presumed from the circumstances and condition of the parties contracting, and herein it is different from the rule of law, where it is to be proved, not presumed.”
In the case of Clarkson v. Hanway, 2 P. Wms. 203, a conveyance, made by a weak man, easy to be imposed upon, was set aside, though there was no proof of any particular efforts made to prevail on him to execute it; but the deed was prepared by the grantee, and there was no proof that the grantor gave any instructions, or that it was read to him ; — the master of the rolls observing, that the fraud was apparent, and judging upon the face of the deed is judging upon evidence which cannot err. In the case of Say v. Barwick, 1 Ves. & B. 195, a lease was set aside, obtained from a young man, on coming of age, at a very inadequate rent, when he had been in habits cf intoxication repeatedly and in com*350pany with the lessee. The testimony in that case was contradictory, — some of.the witnesses saying he was so much affected by a former night’s debauch, as to be utterly incapable of business, and others representing him as perfectly cool and collected, and aware of what he was about, — and the master of the rolls concluded he did know what he was doing. The lease had been previously prepared by the defendant, and executed in his house, and there was some evidence of the plaintiff’s having confirmed it afterwards. In the case of Dunnage v. White, 1 Swanst. 138, the court refused to enforce a deed, it appearing on the face of it that the parties did not understand their rights, or the nature of the transaction, and that the heir surrendered an unimpeachable title without consideration, and evidence being given of his gross ignorance, habitual intoxication, liability to imposition, and want of professional advice, in the absence of proof of direct fraud, or undue influences, and after an acquiescence of five years.
From these cases it is apparent that no direct proof of fraud, or imposition, or undue influence, is required from a party endeavoring to set aside an instrument unduly obtained. It is true that it is the duty of a party, who seeks to impugn an instrument on that ground, to prove that such influence was exercised ,• but it is equally true that positive and direct proof is not required. Influence is not susceptible of direct proof. Who can tell how, or in what manner, or how much, one man is influenced by the advice, conduct, or hints of another ? And when an advantage is obtained of another by the influence acquired over him, what proof or evidence of such influence could ever be afforded? If we should attempt to lay down any general rules upon the subject, and to determine before hand what acts or things should be evidence of influence, it would be easy to avoid the effect of them. In the case of direct fraud, the badges, which are laid down by Lord Coke in Twyne’s Case, [3 Co. R. 80] in distinguishing a colorable and fraudulent sale from one lona Jide are always foreseen, and care is taken that they should not attend a transaction intended to be fraudulent.
The court will not measure the degree of understanding, and say that a weak man may not contract, or give away his property; yet they will scrutinize the gift, made by a man of a feeble understanding, or one whose powers of memory and whose mind and *351judgment are gone, or impaired, from whatever cause it may have proceeded; and if made to one in whom confidence has been reposed, and no sufficient reason appears for the same, and the consideration be wholly inadequate, so as to afford evidence that the person did not understand the nature of the contract, or gift, he was making, relief against such a contract will be afforded in equity. •'
In the case before us I have already remarked that the mental faculties of the intestate were greatly impaired by his habits, that he had become jealous of his family, indulging in complaints about them, drawing comparisons between his wife and children, and his former wife and children, that he reposed implicit confidence in the defendant, and that, by the writings executed at the time, he gave up to the defendant, or provided that he should receive property to the amount of nearly seven thousand dollars out of his notes then transferred, and those discharged to the defendant; for it "appears that, after allowing all the claims which the defendant sets up in his answer, and we have no reason to believe but what the master made a liberal allowance for all the losses sustained by the defendant, and for all the services performed by him, — the defendant was then indebted to an amount of not far from four thousand dollars, and was to retain three thousand dollars out of the notes assigned.
It appears, further, that the discharge and assignment were made, or procured to be made, by the defendant, and no evidence is produced that they were read to, or by, the intestate ,* none of the family were consulted, or made acquainted with the transaction. No previous declaration of the intestate, "that he contemplated making this extravagant gift, is shown. The only evidence that he ever intended it as a gift, or compensation, is contained in the testimony of a single witness, and he says that he contemplated not over one thousand dollars. The master has allowed him seven, hundred and fifty dollars, and. a further sum of four hundred dollars for his services. No receipt was given by the defendant, no counterpart of the assignment was executed, nor any obligation or writing, by which the defendant became bound to execute the trust, to which the representatives of the intestate, or his creditors, could resort for the purpose establishing their claims. The intestate left the eoun*352try, and returned in the situation described by Mr. Clarke, and though his attending physician says he retained his senses until the last twenty four hours of his life, no mention is made by him of any provision made for his debts, or family. His pocket book, and what money he had, passed into the hands of the defendant during the last sickness. It is impossible to support this transaction, made without any apparent motive, and of which we should have supposed some written evidence would have been preserved by the intestate, or at least some mention of it made to some of his connections, if he retained any knowledge or remembrance of the nature and effect of the papers he signed on the 19th of July. And, if there was that great friendship and confidence reposed in the defendant by the intestate, in consequence of the fraternal regard he had for him, which has been so eloquently described by the able and learned counsel for the defendant, it would have been better reciprocated by the defendant in making a different provision for the family and creditors of his brother, and not in taking to himself so large a share of the remnant of the great property which John Jackson had formerly possessed.
The transaction carries on its face such intrinsic evidence of imbecility and undue influence, as to require a court of equity to set it aside. The very least which could be required of a person claiming such a gift, would be, that he should show that the person making it did in fact understand what he was doing, — that the papers were read to, or understood by him ; and it is not sufficient for the defendant to rely on the presumption arising from the execution and delivery; but, standing in the situation that he does, the burden is on him, to show that it was understood by the intestate, and that he intended to do the very thing which it is claimed he has done.
Nor can the defendant say, that, by setting aside this assignment and discharge, he will be deprived of any thing which he has earned, or which is justly and equitably his due. Every legal claim has been awarded to him by the master, as well as a compensation for losses, and services, which were not presented to the intestate in his life time, and which were not noticed in the settlements made between them. It cannot be pretended, therefore, that there was any consideration for the discharge and assignment, so far as it gave to *353the defendant the amount due from him to the intestate, and the three thousand dollars which he was to have out of the notes assigned.
If the object had been merely to provide for the payment of his debts, and to make a provision for the children of his first wife, no one could with propriety have objected to it. Whether they will be benefited or injured by setting aside the gift to the defendant cannot be determined, until there are further proceedings had in the settlement of the estate; nor could it affect our view of the case, whether they would be benefited or not. By that assignment they were left entirely to the good feelings and sense of justice of the defendant, as no obligation was taken from him to enforce the performance of the trust. The defendant appeared as the sole owner of the notes therein described, gave notice to the debtors that they were assigned to him, and neither the creditors, nor legal representatives, nor heirs, had any evidence left to secúre the due performance of the trust. If the intestate intended to make provision for them, as claimed by the defendant in his answer, he did not discover much of that shrewdness and capacity which has been attributed to him, when he took no security whatever to enforce the performance of the trust, but managed the business in so inartificial a manner that he left the whole dependent upon the continued good feeling and generous disposition of the defendant; and when, in the event of the decease of this defendant, as well as of John Jackson, nothing would have”appeared, but what the whole property assigned belonged to the defendant. The notes assigned would not have left a large fund for those children, after paying the debts of the intestate, and the three thousand dollars to be retained by the defendant.
If the intestate had made a will, at the time he made this assignment, and made the same provision which the defendant now claims, and there had been the same evidence, which we now have, of his imbecility, and his habits, and of the situation of the defendant, and the same want of any evidence of his having declared it to be his intention to do that which he has done, it could not have been deemed valid. But a greater security would have been had in that case, than is afforded by the present transaction. A will is revocable during the life of the testator; — this discharge and assignment were executed and irrevocable. A will is declared and *354pronounced tó be the will of the testator in the presence of witnesses. The person who writes the same can tell the situation and the intention of the testator, — or, if the testator writes it himself, it may carry in itself evidence of design. This discharge and assignment were prepared by the defendant, signed by the intestate, and the witnesses know only of his signature, but do not know that he ever read or understood the contents of the papers he signed. A will is retained in the possession of the testator, and may be can-celled or destroyed. This assignment and discharge were executed and delivered to the defendant. What became of the notes, w'hich the intestate held against the defendant at that time, is not in evidence. In a will we have evidence that the testator intended a gift. That evidence is wanting in this case.
On a careful review of the testimony we cannot think the discharge and assignment should be permitted to remain as evidence of the legal act and intent of the intestate. As a contract it has no consideration to support it. As a gift, — taking into consideration the situation of the intestate, the sickly and unnatural state of his feelings towards his family, produced entirely by his habits, the influence which the defendant must have had over such a man at such a time, arising from their former intercourse, and considering also the extravagant amount of the sum given, without any evidence of any previous intention so to do, and with no other evidence of its being understood by the intestate than what is afforded by the testimony, — it cannot and it ought not to be sanctioned in a court of equity.
The decision of the chancellor is affirmed in every particular; and the case will be remanded to the chancellor, with directions to execute the same, and to issue execution for the amount ordered to be paid by the former decree, with interest, and with additional cost, if not paid within ten. days from that time.