The facts as detailed in the finding are not questioned, except as to two paragraphs, viz: "62. Mrs. Kane was, at the time when the bank books were delivered by her to defendant, and when the orders were executed, mentally capable of recalling and comprehending the plan made and discussed with defendant prior to the stroke, and understood the nature and effect of the delivery and transfer. 63. She delivered the bank books to defendant and executed the orders for the purpose of carrying out the plan of transfer to the defendant of her property, to be by him distributed and disposed of, as had been previously discussed and decided upon by her, and the defendant received and accepted the same as trustee for said purposes."
Unless the finding as to these paragraphs can be sustained, the judgment must necessarily be reversed. These findings presuppose (1) the existence of a plan agreed upon by Mrs. Kane by which these bank books were to be transferred to Father Fitzsimmons to carry out a determined trust; (2) the possession by Mrs. Kane, at the times the books were delivered and the orders were executed, of mental capacity capable of recalling and comprehending this plan and the nature and effect of the delivery and transfer; (3) that the delivery and execution were for the purpose of carrying out this prearranged plan; and (4) that Father Fitzsimmons received and accepted the bank books as trustee in pursuance of this plan.
Our most diligent study of the evidence fails to satisfy us that either of these propositions was reasonably established. Up to the time the bank books were delivered to Father Fitzsimmons, the manner in which Mrs. Kane should dispose of her property had not been definitely decided upon. This would seem to follow from the fact that Father Fitzsimmons himself endeavored to get Mrs. Kane to make a will, then to have *Page 378 her brother Patrick influence her to make her will, and finally, on January 20th, two days after she had suffered a severe shock, he caused a lawyer to see her for the purpose of having her make a will. If a definite plan had been agreed upon by her of transferring the books to him, he would not have persistently endeavored to have her make a will. The plan must be found in the first interview between Father Fitzsimmons and Mrs. Kane, after her first illness in December. She then told him she wanted to dispose of her property and wanted him to take care of it for her. She, at his request, named seven persons to whom she wished to give named sums. The balance she wanted to give to charity, and upon his suggestion that she leave it for a convent for the Sisters of his church at New London, she said: "I guess I will leave it for the convent, for your convent you are about to build." At this time Mrs. Kane did not state the amount of her possessions nor the nature of her investments, and Father Fitzsimmons did not know these, and nothing was then said about the transfer of the bank books. At most, she had expressed only her expectation as to the gift for the convent. Nothing too, was said at this time as to the manner in which the disposition of her property was to be carried out. She did not then, nor at any other time, definitely determine upon this disposition of the residue.
Furthermore, Father Fitzsimmons never agreed specifically to make the gifts Mrs. Kane suggested; all that he said was that he would look after it for her. His commitment is as indefinite as is hers. No plan as determined upon by Mrs. Kane can be found from this interview. Nor would it be possible to establish out of it a trust in Father Fitzsimmons as to the proceeds of these bank books.
In the next interview between Mrs. Kane and Father *Page 379 Fitzsimmons, evidently the existence of the bank books and their transfer had been mentioned, since he advised her to go to the banks and have the money transferred to him, and she said she would do so the first thing when she had sufficiently recovered. No reference was made at this time to the disposition of the funds, nor as to whether she had decided to give the residue to the convent at New London. The additional facts as developed in this interview, taken in connection with those of the first interview, do not establish the plan and trust upon which defendant relies.
On Sunday, January 18th, Mrs. Kane suffered a severe stroke. On the following Tuesday, the 20th, Father Fitzsimmons saw her and she then handed to him the two bank books. On the following Thursday, the 22d, Mrs. Kane, by her mark, executed transfers of the accounts upon these books. At this time Father Fitzsimmons told her Murray had come to draw up the transfer of the bank books to him. Aside from this, nothing more appears in evidence from which a plan or trust as agreed upon by Mrs. Kane could be found. It is evident that nothing occurred after Mrs. Kane suffered her shock which helps to establish the plan or trust.
It is likewise clear that from anything appearing in evidence it cannot be found that Father Fitzsimmons received and accepted the bank books as trustee in pursuance of the plan or trust which he alleges. Aside from the impossibility of establishing the plan from the evidence, it appears, and we think incontestably, that Mrs. Kane did not, at the delivery of the bank books and at their execution, possess mental capacity to recall and comprehend this plan, or to understand the nature and effect of the delivery and transfers. She delivered the bank books two days after suffering an apoplectic stroke accompanied by paralysis of the *Page 380 right side, arm, leg and face, and a partial paralysis of the tongue, and when she could not speak intelligibly except an occasional word. She delivered the books without uttering a word. She did no act except to deliver the books. So far as appears nothing occurred from which the possesion [possession] of mental capacity could have been found.
That evening Mr. Walter J. Walsh, the lawyer whom Father Fitzsimmons caused to be summoned, found that he could get no information whatever from Mrs. Kane and so had to abandon his attempt to draw her will. Mr. Walsh testified that Mrs. Kane did not at this time know and comprehend what was going on about her, and did not know anything that he was talking about. Mrs. Kane's condition continued to grow worse. When two days later Murray drew the transfers and read them in her presence and asked her if she was satisfied and willing to sign, she merely bowed her head. When Father Fitzsimmons told her Murray had come to draw up the transfer of the bank books to him, she also merely bowed her head.
There was nothing which occurred at this time from which it could be fairly found that she knew and comprehended what was going on about her, much less that she comprehended that what was being done was the consummation of a plan determined upon in an interview between Father Fitzsimmons and herself by which she was to transfer to him her bank books upon a predetermined trust. We should find it difficult to sustain a finding, except upon convincing proof, that a woman had made a transfer of her entire possessions for the benefit of others, when she was seventy-six years of age and sick, and by her act stripped herself of everything she had and retained nothing for her sustenance, her care in sickness, the payment of her just debts and her funeral expenses. The improvidence *Page 381 of such a transaction would be persuasive evidence of mental incapacity, or imposition, or misunderstanding.
These considerations are conclusive of the case. Hence we find no occasion to decide upon the effect in law of the plan as claimed, assuming that the facts as found by the court had not been corrected.
There is error, the judgment is reversed and the Superior Court directed to enter judgment for the plaintiff for $15,466.44.
In this opinion the other judges concurred.