Bailey v. Finlayson

Maxwell, J.: On the 21st day of June, 1883, Daniel A. Finlayson intermarried with Mary B. Bailey. At the time of this marriage the said Mary B. was about 24 years of age, and resided with her mother and step-father, Dr. B. "Waller Taylor. She was seized and possessed of real and personal property in her own right, and on the day of the marriage the two joined in the execution of a deed of trust by which she, as party of the second part, conveyed all her property to him as party of the first part, to be held, as the instrument says, “for the following uses and purposes : To have and to hold the same under his charge, control and management for her and their use, benefit and enjoyment during her life time, as provided by the laws of this State relating to the separate property of married women; and at her decease to go to and descend to any child or children she may have surviving her, and in case of her decease without leaving issue, then to her mother, Maria B. Taylor, for the term of her natural life, and at her decease to go to the brothers and sisters of the said party of the second part herein named, William W. Bailey, John B. Bailey and Mai-tha H. Bailey, to them, their heirs and assigns forever. It is expressly understood that nothing herein contained shall interfere with the free use and enjoyment of said property of the party of the second part, or with the disposition thereof, should the said party of the second part desire to sell or convey any part thereof, or to dispose of it by last will and testament. “ And the said party of tlie first part has made himself a party thereto in token of his approval of the premises and in acceptance of the trust herein created as aforesaid.” On the first of January, 1884, Mrs. Finlayson addressed a note to S. Pasco, Esq., the counsel who had prepared the — 175 — deed, as follows : “ Enclosed you will find the settlement which you made last summer, the day of my marriage. Please draw up some paper which will effectually revoke the first paper* as it was made against my will, and I determined at the time it should never stand.” This note, together with the trust deed was carried by Mr. Finlayson to Pasco, who, on the second of April, 1884, prepared two deeds' — one by Finlayson and his wife conveying all the property embraced in the trust deed to himself, and one by him conveying the said property back from him to Mrs. Finlayson. Soon alter Mrs. Finlayson gave birth to a son, who was named Bailey Finlayson, and on the next day she died intestate. The said Bailey Finlayson subsequently died a minor. The appellants on the 26th day of March, 1886, filed their bill of complaint in the Circuit Court of Jefferson county against 1). A. Finlayson, setting up the validity of the trust deed aforesaid, claiming that under it they were entitled to all the property, real and personal, set forth in the said trust deed, and the rents, issues and profits of the same. This bill was answered by Finlayson, alleging that the deed was procured of his wife, then Miss Bailey, by undue influence of her mother and brother and through duress, and that it was not her voluntary act. He subsequently filed a cross bill, but under the view we take of the case it is unnecessary to refer to it further. The cause was brought to a hearing upon the original bill, answer and replication, the cross bill, answer thereto and replication and the evidence. The plaintiffs’ claim through the marriage deed of trust is, that the Finlayson child having survived his mother, the property became his, and that the law of descents carries it after his death to them as his heirs on the parental side from which it came. McCl’s. Dig. sec. 2, p. 469. The — 176 — claim is a good one if it is to be determined alone upon the directions of the trust deed. That deed, however, is attacked by the defendant on the ground that it was made involuntarily and obtained by undue influence of the mother over the daughter on the immediate approach of the marriage-of the latter, and is therefore in law not her deed. In that event (not regarding now the subsequent conveyance of husband and wife to Pasco, and his conveyance back to her) the property was still hers at her death, and under the law of descents would go equally to the child and the defendant. And it is further contended for defendant that if the deed is not void, his rights are the same under the subsequent disposition of the property authorized by the deed, by which it again became her property, freed from the trust. In these several propositions, fro and con, are to be found the solution of the case. To our minds the evidence seems conclusive that Miss Bailey made the deed of trust against her will, and under the constraint of her mother’s influence. That evidence shows that when she executed the deed she was twenty-four years of age; that she resided with her mother ; that previous to that day she had promised her mother that she would execute a deed ; that it was drawn by Samuel Pasco,Esq., a practicing attorney at the Monticello bar; that it was drawn upon the application of Mrs. Taylor, the mother who sought him at his residence early in the morning of the day of the mariage She said to Pasco that no marriage contract had been drawn, and that one must be drawn before the marriage, as it would not do to let the property go out of the family in case of Mamie’s death. She was quite earnest in her manner and somewhat excited, and wanted to know of Mr. Pasco if he could not attend to it immediately, and requested him to see Mr. Einlayson about it. She gave him instructions as to what she desired the — 177 — deed to be, and the title of the property was to be absolute without any power of revocation, under the instructions. Mr. Pasco saw Mr. Finlayson the same morning, who said nothing had been said to him by the family about the matter, and that he thought it was a late and inappropriate lime to bring np a matter of so much importance, and that ho did not think that it was Mamie’s wish that anything of the sort should be done, and that he would think the matter over and see the instrument when prepared, and then decide what to do. Later in the day Mr. Pasco went to the house of Mrs. Taylor, who called her daughter, Miss Bailey, down. Miss Bailey appeared to be agitated, and to have been crying. She (Miss B.) asked Mr. Pasco to tell her what was in the instrument; that she did not want to read it, but to tell her what it contained, and she seemed impatient to get through with the interview. She said she wished she had no property to be troubled about. Mr. Pasco informed her of the contents of the instrument, whereupon she enquired of him if it contained any power to revoke it, and told him if there was not she would not sign it under any circumstances. Pasco told her that it did not, but that it could be added, and Mrs. Taylor consented that it should be done. This was about 1:30 o’clock in the day. About the middle of the afternoon Mr. Pasco called again with the instrument ready for execution, containing a clause intended to give her the power of revocation as previously requested by her. The instrument was then read in the presence of Dr. and Mrs. Taylor, Miss Bailey not being present. Mrs. Taylor took the instrument up stairs to show to Miss Bailey, but did not remain long enough to have read it to her. Mr. Pasco then, at the request of Mrs. Taylor, — 178 — ifcook the paper to Mr. Finlayson for him to examine ancl iSee if he was ready' to sign it. Finlayson was found in his room dressing. He read the instrument over hurriedly, ;and said he did not believe it to be Miss Bailey’s wish that Jae should sign ifpthat she was acting at the request of her mother., and furthermore, it was too important a matter to ;act upon at such a time as that; that he felt that he ought 4o protect her own interest, and could not consent that such & matter should be acted upon at that time. Pasco returned '.to Mrs. Taylor and told her the result of his interview. ¡She called Miss Bailey down and said to her, “ see there Mamie, he refuses to sign it,” to which Miss Bailey replied: “Oh, mamma, my Daniewill sign it if I ask him to do so.” .Miss Bailey then wrote a note to Mr. Finlayson, which was borne to him by Mr. Pasco. Before Miss Bailey signed-the deed she asked if the paper gave her full power to revoke it at any time. Pasco told her that it did, and then she signed it. Mr. Finlayson signed it and the witnesses subscribed their names. This was immediately before the marriage. The following was the note written by Miss Bailey to Mr. Finlayson a short interval before the signing of the d-eed : “ I trust you fully, but cannot do as you say. I promised mother long ago that it should be so, and cannot refuse. As you love me, sign this paper, and do not add anything more to my suffering, for I have gone through with enough to kill me. “ Bo as they wish us to do, and afterwards I will prove my love to you in some other way. You must sign.” On the 2d of April, 1884, the then Mrs. B. A. Finlayson and her husband conveyed all the property" embraced in said trust dead of June 2,1883, to Samuel Pasco, which was on the same day reconveyed by Pasco to her. A few' months after making the deed and after her marriage, Mrs. — 179 — Finlayson remarked to Mrs. S. J. Turnbull, her sister-in-law, that no one ever went through with more than she (Mrs. Finlayson) did the day of her marriage ; that it was a wonder to her that she lived through it, or words to that effect. Ur. Taylor, Miss Bailey’s step-lather, testified that his wife, Miss B’s mother, advised Miss Bailey to make the marriage contract, and that she acted upon that advice. That he believed Miss Bailey would not have made it if it had it not been for that advice, as she had every confidence in Mr. Finlayson. It cannot be doubted that if on this evidence Mrs. Finlayson, after her marriage, had sought to set aside the deed of trust, the court would not have hesitated to grant a decree for that purpose. For the law on the subject, see among the numerous authorities, 1 Story’s Ex., secs. 207-8-9; Taylor vs. Taylor, 8 How. U. S. 188; Huguenin vs. Beseley, White & Tu. Leading Cases in Equity, part 2, p. 1156, and notes; Hamilton vs. Mohem, 1 P. Wms., 118. But appellants say that though Mrs. Finlayson could have had thefdeed set aside, her husband, who joined in it and accepted the trust under it, is estopped from saying it was not a valid deed, and that so far as he is concerned it must stand free from impeachment. As trustee this may be correct, though Hamilton vs. Mohem, supra, is authority to the effect that in a case similar to this the husband may have the aid of the court to set aside marriage articles; but passing this, under the statute here, he is also an heir, and in that capacity has the same rights that would enure to any other heir. But let the estoppel be admitted, what then ? The deed contains a reservation that nothing there. in should interfere “ with the disposition (of the property) should she (Mary B. Bailey) desire to sell and convey any — 180 — part thereof, or to dispose of it by last will and testament.” This seems inconsistent with the previous portions of the deed, and repugnant to the grant, but the evidence in the ease enables us to give a construction to this language which will conform it to the intention of the parties. It will be seen from that evidence that it was meant as a power of revocation. Miss Bailey positively refused to sign the deed without such a power, and she was told by the attorney who prepared it that this provision gave the power, and the mother consented in the end that it should be put in. Subsequently the same attorney, acting under her request to prepare a paper to effect the revocation, drew the deed from her and her husband to himself, and then the deed from himself to her, it being his and their undei’standing that through the instrumentality of those deeds the property was fully re-invested in her. He says in his evidence that he prepared the deeds to meet the wishes of Mrs. Einlayson, to effectually revoke the former one, as expressed in her note to him. The objection to this evidence that the deed speaks for itself, and his statements should not be heard to vary or contradict it, is not tenable, for the reason -that there is seeming repugnancy in the deed, which it is permissible to reconcile by parol testimony, if the circumstances and the object and intention of the maker of the deed can do this. We think this a case calling for that privilege, and one in which the words used in the deed, though not strictly expressing the purpose, may be made to conform to that purpose. So viewing it, we regard the property as restored to Mrs. Einlayson by the deed from Pasco to her, the same operating as a revocation authorized by the original deed. Treated in this light, there is no occasion to consider the objection of appellants to the deed from Mrs. Einlayson to Pasco, that it was without consid — 181 — «ration. As a revocation no consideration was necessary. A voluntary deed of trust, without power of revocation, will sometimes be set aside, if unreasonable, and improvidently made. See Garnsey vs. Mundy, 24 N. J. Eq., 243, and eases therein cited. The deed of Miss Bailey was a voluntary deed, so far as the beneficiaries of the trust are concerned, and she but did herself what she thought the power authorized, and what, in the absence of the power, we think a court would readily have done for her. Other questions appearing in the case have been duly considered, but as they cannot affect our conclusion we omit deciding them. While appellants are entitled to the portion of the child, Bailey Einlayson, in the estate of' his mother, after payment of debts, we think the ease as it stands does not justify a decree to that effect, and that the court did not err in dismissing- the bill. As to the cross-bill, that should also be dismissed, and the costs occasioned thereby should be paid by the appellee.