Merriman v. Munson

Per Curiam : The opinion of the learned judge below is so full and satisfactory that little remains to be added. It is a mistake to suppose, as was argued by the learned counsel for the appellant, that the latter takes no benefit under the deed of trust. On the contrary, he has the benefit of a house and a support so long as his conduct is such that he may properly reside with his wife and children. If this bill had alleged that he had been improperly and without cause excluded from the house occupied by them, and from the benefits and comforts thereof, we would have had an entirely different question before us. But the object of the bill was to strike down the trust upon the ground of fraud. Of this there was no evidence. The deed was his own act, to save him frqjn the results of his folly and extravagance. It was a spendthrift trust, executed by a spendthrift. To have inserted a clause of revocation in such a trust would have been an act of extreme folly, as it would have rendered it of no value for the protection of his estate. That it conveyed what was practically the whole of his estate does not invalidate the trust. He was not stripping himself of his property for the benefit of strangers, but was preserving it for the support of his wife and family, and incidentally his own. In this respect the case bears no analogy to those which hold that when a man makes a voluntary conveyance of his whole estate for the benefit of a stranger, without consideration, and without reserving a power of revocation, equity will relieve against it. The execution of this deed of trust was probably the [132] wisest business transaction tbe plaintiff ever performed. It is perhaps natural that, after the removal of the pressure of the financial troubles which induced the act complained of, he should regret having placed his estate heyond his control. Any spendthrift would. A word as to the alternative proposition, as it was termed by plaintiff’s counsel. The learned master has found that, as to the personal property embraced therein, it was the understanding and agreement that it should be included in the trust, and it was transferred to the trustee at the time, so far as it could then be delivered; that the Fourth street house belonged to the plaintiff’s wife; and that the Elmira street house was omitted from the trust because it was admittedly encumbered to its full value. We find nothing which calls for relief in this branch of the plaintiff’s case. The decree is affirmed, and the appeal dismissed at the costs of the appellant. After the foregoing opinion was delivered, the appellant filed a motion for a re-argument and for leave to amend the bill. The reasons assigned in support of the application for re-argument were: (1) That the case involved the right to a large amount of property, was one of considerable importance, and it had not been heard and decided by a full bench; (2) that the opinion filed indicated that it was the understanding of the court that the plaintiff h^fl a house and support at the date of the argument, whereas the contrary was the fact, his wife and children having separated from him, as was shown before and found by the master, and the homestead having been sold by the sheriff on a municipal lien for $41.40, which the trustee should have paid off, this sale resulting in the ejection of the plaintiff from the house by process of law, after the evidence had closed; (3) that all the facts, which, as the opinion indicated, would entitle the plaintiff to relief, actually existed; that the prayers for relief in the bill, especially the general prayer, were sufficient for it, and if the bill were lacking in sufficient allegations, an amendment should be allowed. The amendment to the bill, which the plaintiff prayed for [133] leave to make, was the addition of the following averments thereto: That Georgia C. Merriman, your orator’s wife, has taken their children and hath separated them and herself from him without cause and still doth continue to separate herself from him without cause: That your orator has been improperly and without cause excluded from the house of his said wife and the comforts thereof, and is without any support. —Appended to the plaintiff’s application was his affidavit setting forth that in March, 1886, his wife without cause left the dwelling in which they had resided previously, and had since persisted in living separate and apart from him; that he continued to live in said dwelling until October 18, 1887; that it was sold by the sheriff on March 11, 1887, upon a municipal lien for $41.40, which should have been paid by the defendant as trustee, and the affiant was put out of possession by process of law after the testimony was closed in this case, and since that time he had had no habitation or place of residence, had not received from his wife or from the defendant any means for his support whatever, and was now without the means of support; praying that the case be referred back to the master to take further testimony, and that equity and justice be done, etc. Per Curiam, May 5, 1890: There is nothing in any of the reasons assigned which entitles the appellant to a re-argument. The bill was filed for the purpose of having the deed of trust declared null and void. If the appellant has been denied any rights to which he is entitled under the deed, that is another matter and not necessarily involved in tills controversy. In dismissing the bill, as filed, that question was left open, as will be readily seen by an examination of the opinion. In addition to the request to grant a re-argument, we are asked to allow the bill to be amended so as to raise the question above referred to. This cannot be done after a final adjudication in this court. That litigation is ended. It leaves the matter open, however, to the appellant, to file another bill in the court below, not in antagonism to the trust, but claiming his rights under it. It appears to us, however, that the [134] good sense of all the parties in interest ought to render this course unnecessary. The motion for a re-argument and for leave to amend the bill is denied.