This action is brought to set aside a deed made by Hiram A. Phillips on September 5, 1905, an unprobated will executed by him on July 11, 1908, and a deed made by him on July 15, 1908, on the grounds of mental incompetency and undue influence.
The deed of September 5,1905, conveys a house and lot on Caledonia street in the city of Lockport to the defendant Lydia C. Flagler. The premises were worth about $1,200. The grantee, at the time the deed was executed, gave back a life lease thereof to the grantor.
The will gives $500 to Frank C. Phillips, $1 to the plaintiff, his son and only heir-at-law and next of kin, *502and the remainder of his estate to Emory Flagler, husband of said Lydia C. Flagler, in case he survives testator, otherwise to his heirs. At the time of making the will Hiram A. Phillips owned the East Avenue house and lot, subsequently"conveyed; also some household furniture and several hundred dollars in bank. This will was the last of several executed by Hiram A. Phillips and revoked each by a later will. The circumstances of its execution are testified to by a reputable attorney as being regular and legal in all respects.
The deed of July 15, 1908, conveys the East avenue house and lot, worth about $2,500, to said Lydia C. Flagler and her husband, Emory Flagler, as tenants by the entirety, reserving to the grantor the life use thereof and charging it with the payment of the Frank C. Phillips legacy of $500. The deed was drawn by an attorney other than the one who prepared the will.
Hiram A. Phillips died on September 19,1911, in the ninety-fifth year of his age. Emory Flagler had died before that date, leaving the defendants Belva Flagler and Boy Flagler, his children and only heirs.
It is urged, that the complaint should be dismissed so far as it relates to the will, because a cause of action to set aside the will is improperly joined with causes'of action to set aside the deeds, which deeds do not affect the defendants Belva Flagler and Boy Flagler, and also because it does not state facts sufficient to constitute a cause of action to set aside the will for the reason that this court has no original jurisdiction to probate a will nor declare an unprobated will void. Code Civ. Proc., §§ 484, 488, 498; Anderson v. Anderson, 112 N. Y. 104.
But the defendant Lydia C. Flagler is in 'possession of the real estate under the deeds, so plaintiff has not the remedy at law by an action of ejectment which he *503might have if the devisees, the defendants Belva and Roy, were in possession.
The usual objection to an original action in the Supreme Court to set aside a will of real estate on the ground of testator’s incompetency is that there is a perfect remedy at law. But the existence of the two deeds above mentioned presents such .an impediment to an action at law as to give jurisdiction to a court of equity. Kalish v. Kalish, 166 N. Y. 368.
The gist of plaintiff’s action is that the defendant Lydia C. Flagler exercised an influence and control over deceased when he was mentally incompetent and thereby induced him to execute the deeds and the will for the benefit of herself, her husband and her children. The complaint states a single cause of action in equity to determine and enforce the rights of the plaintiff to the real property formerly owned by Hiram A. Phillips, which is the subject of the action. Porter v. International Bridge Co., 163 N. Y. 79.
The question-is first as to the mental capacity of Hiram A. Phillips to make the deeds and the will in question and, second, as to his freedom from undue influence in making them.
Phillips was born on June 18, 1817. He was eighty-eight years of age when he made the first deed and ninety-one years of age when he executed the will and the second deed. He was in an enfeebled condition of body and mind. The sole provision made by him for his only child was the legacy of one dollar. He seemed to have some unjustifiable impression about his son, but mistaken judgments'are not delusions, nor are old age and mental and physical infirmity disqualifications. Dobie v. Armstrong, 160 N. Y. 584.
It must be conceded that, on the one hand, he attended personally to his simple matters of business, like paying taxes and bills and keeping accounts, down *504almost to the time of his death at the age of ninety-four, three years after the second deed was executed, and that, on the other hand, he was of failing memory, peculiar, childish about trifles and suspicious of his neighbors without cause. While he was very old and had lost much of his mental vigor, he was by no means wholly non compos mentis.
Did Hiram A. Phillips know what he was about? Had he a sane reason, though a poor one, perhaps, for making no provision for his son? Did he act freely, under proper influence only, without coercion or duress? A brief history of his relations with his son and with the Flaglers will be helpful in reaching a proper conclusion.
In the year 1895 we find the plaintiff bringing suit against his father in the Supreme Court and, after a contested litigation, obtaining judgment against him that plaintiff was, by virtue of a contract to support his father for life, made in the year 1891, entitled to a one hundred acre farm in the town of Royalton, formerly owned by his father. As the learned court found in favor of the plaintiff, it follows that Hiram A. Phillips was in the wrong and to blame for the litigation. But the son regarded the father, as mentally competent in 1895 and it must be assumed that Hiram A. Phillips was then able to look after himself and his affairs and that he naturally and normally felt that he was in the right and that his son was in the wrong about the lawsuit. Thus the natural affection of the father for the son was ever afterward clouded by the memory of this controversy.
In the year 1898 the plaintiff and his father entered into a contract whereby the son agreed to pay the father sixty-five dollars in cash quarterly in lieu of the support to which he was entitled under the contract. Again the son-deals with the father as compe*505tent to contract; probably, from Ms point of view, he deals not unfairly with the old man. But William E. Phillips has beaten his father in a law suit over the farm, and has now obligated himself to pay only $260 per annum for his father’s support. No hypothesis of mental delusion is required to explain a feeling on the part of the father that the son had gotten the better of -him and had been unfilial. After maMng the contract the son appeared each quarter with a notary public and took an acknowledged receipt from his father for the payments. The contract provided for this, but it annoyed the father. I think it not unnatural that the father should, out of his disappointment and grief, entertain a bad opinion of the son, regard him as an enemy and the like, although at times tolerating him, as it were, and not wholly breaMng off relations with him. The relations between them after 1898 were, however, confined almost entirely to the payment and receipt of the $65 quarterly. Certainly it was no insane delusion on the part of Hiram A. PMllips that his son had sued him and, as the result of the law suit, had obtained title to the Eoyalton farm for $260 per annum for the life of a man eighty-one years old. I see no good reason why the son would expect to inherit from the father after that, if the father were compe- • tent to disinherit him.
The defendant Lydia C. Flagler is a woman of about sixty years of age, who was taken by Hiram A. Phillips into his home when she was about six years old, along with her brother and sister, orphan children named Cole. They all took the name of PMllips and the brother and sister were brought up by Mm. Lydia, however, lived with Mm only about a year and then went to live with another family and in time married Emory Flagler. Her relations were always friendly with the old man. In 1898 she lived on Charles street *506in Lockport and Hiram. A. Phillips lived not far away on Bast avenne. From 1898 to the spring of 1911 Hiram A. Phillips hoarded with her at her house, paying her the modest sum of two dollars per week for meals, washing and mending. In the spring of 1911 she moved with her family into the Bast avenue house, at his request, and continued to care for him until he died in the following September. The Flaglers were closer to him than any one else; they treated him kindly and had his confidence, and it would seem reasonable for them to expect something at his death in addition to the two dollars per week paid by him for board and keep.
Assuming that the mental faculties and will power of Hiram A. Phillips had deteriorated from the year 1891, when the contract with plaintiff about the farm was made; from the year 1895 when they had the law suit; from the year 1898 when they made the annuity contract, down to the years 1905 and 1908, the test is — was his mind still capable of understanding the nature and disposition of his property and his relations with his son and the Flaglers? Delafield v. Parish, 25 N. Y. 9. He seems at times to have been able to reason himself into a belief that his son had dealt fairly with him about the farm, and that the decision of the court was a just one, but his mind always goes back to the trouble between them, It was not an insane delusion on his part that they had had trouble, nor was. the belief that his son had treated him badly evidence of mental incapacity. Even an unjustifiable impression is not a delusion, and the impression that his son had taken advantage of him was not wholly unjustifiable. That he had been disappointed and displeased was- due perhaps to the weakness and infirmity of age rather than to any real misconduct on the part of plaintiff, but it was not due to senile dementia. He may have *507forgotten many things, great or small, but he never forgot the loss of the farm in the lawsuit. In the free exercise of such intellectual powers as he possessed, he made a perfectly natural disposition of his property. Deeds and wills are not to be set aside by the courts except for the gravest reasons, especially where the result would be to take the property of a dead man from the persons to whom he has thought best to give it and to give it to the legal heir from whom the deceased had been alienated, not without cause, and who had no equitable claim on his father’s bounty. Nutting v. Pell, 11 App. Div. 55.
The deeds in my opinion fairly represent the wishes of the deceased.
Decision dismissing complaint, with costs.
Complaint dismissed, with costs.