Sturgeon v. Stevens

Opinion by Mr. Justice Gbeen, As a matter of course if John M. Sturgeon was the owner of the $2,100 mentioned in the agreement of November 17, 1893, or if he had an interest therein as owner, it would not have been within the power of his mother to revoke the agreement or alter its conditions. The difficulty with the appellant’s case is the want of proof of any such interest in her husband in the money in question. It is beyond dispute that the money was actually furnished to Stevens by the plaintiff, and there is not [361] a particle of definite proof in tbe case that the appellant’s husband ever furnished a dollar of it. The learned court below, after a most careful and minute consideration of every aspect of the testimony, found as a fact that the whole of this specific money was the money of the plaintiff, and wo fail entirely to discover any error in this respect. It is true the agreement recites that the plaintiff had in her possession real and personal estate derived from her husband, but as she was the absolute legatee of all his personal estate, and tenant for life of his real estate, the recital in the agreement is entirely consistent with her exclusive ownership of the $2,100. Nor is this result impaired by the fact that she received a deed from her son in 1879, conveying to her all his interest in his father’s estate, and acknowledging that he had received full satisfaction and payment from her of all moneys and property that had come into her hands as guardian. He was at that time twenty-seven years of age, or thereabouts, and from that time to the time of his death, some eighteen years later, he never in any manner impugned, or called in question, the entire validity and efficacy of that deed. It is impossible to make any intendment or inference in impeachment of this deed, because there is not a fragment of testimony on the record to justify it. It must therefore be taken according to its import. Granting that she had, or might have had, ‘money in her hands from this or any other source which she might have invested for him, it does not follow by any necessary implication that this particular sum of $2,100 was, in whole or in part, money belonging to her son. The very fact that his mother assumed to exercise entire ownership over the fund by stipulating that the interest of the money was to be paid to her during her life, and that no part of the principal was to be paid to her son until after her death, and that lie assented to this arrangement without objection of any kind or the assertion of any personal interest in the money, is a most persuasive, indeed convincing proof, that the money was hers and hers alone. Contentions over the effect of this deed and concerning its consideration, and the liability of the plaintiff to account to her son for moneys derived by her while acting as guardian, and claimed to have been retained by her by virtue of this deed, constitute a large part of the argument for the appellant. But it is manifest they have no relevancy [362] to the present controversy. It is this particular fund of $2,100, disposed of by the agreement in question, that is to be determined in the proceeding now before us. Some letters written by the plaintiff to her son were given in evidence for the purpose of raising an inference of ownership by the son. in the money in the hands of Stevens, in consequence of expressions contained therein claimed to have such a meaning. Without reviewing them in detail, it is sufficient to sajr that these expressions are entirely consistent with the interest which she expected him to have under her will, and as an ultimate owner of the principal under the agreement in question. Beyond this there is not a word in either of them which indicates that she regarded him as the actual owner of any part of the $2,100. Nor does the testimony of the appellant help to supply this deficiency in the proof. His mother would naturally speak of it as his money when talking with him about its investment, knowing that the whole of the principal of the fund was soon to be his in the ordinary course of nature. Upon all the foregoing considerations, and upon the distinct finding of the court below on this subject, we are most clearly of opinion that the money in question was exclusively the property of the plaintiff at the time the agreement was made. It is true her son was a party to the instrument, but as he was to receive the principal of the fund after his mother’s death it was natural, thoug'h entirely unnecessary, to name him as a party. This fact alone could not possibly supply the absence of all proof that he furnished or owned a single dollar of the money. It proves nothing upon that subject. The question then recurs as to the legal propriety of the decree of revocation. It must be borne in mind that the plaintiff’s son, who was to receive the principal of the fund after his mother’s death, himself died before the present bill was filed. As he was the only object of her bounty under the agreement, after her own wants were provided for, the purpose of the instrument has been frustrated by the death of her son. So far as the plaintiff was concerned there was no further object to sub-serve by the preservation of the agreement. This was the case in Russell’s Appeal, 75 Pa. 269, and it was largely for that reason, combined with the absence of a power of revocation in the instrument, that the court below and this Court in that instance [363] made the decree of revocation. When to these two considerations is added the further proposition that the writing is of a testamentary character, there are present abundant controlling elements to dispose of the case. The last feature alone was held sufficient to determine the two cases of Frederick’s Appeal, 52 Pa. 338, and Rick’s Appeal, 105 Pa. 528. We have considered these decisions in the very recent case of The Chestnut Street National Bank v. The Fidelity Insurance, Trust and Safe Deposit Co., Garnishee, in which the opinion has just been filed, ante, p. 333, and for that reason need not dwell upon them at any length now. It is only necessary to say that under the present instrument John M. Sturgeon took no interest whatever in the fund until after his mother’s death, and there was no limitation over to any other person in the event of his own death. No other rights, therefore, intervened, and as the plaintiff herself was the only remaining beneficiary of the trust there seems to be no good reason why she should not be permitted to revoke the agreement. We hold upon the whole case, that the absence of a power of revocation, the fact that the instrument was a voluntary settlement not founded upon any valuable consideration, that the purpose of the settlement had failed by the death without issue of the ultimate beneficiary in the lifetime of the grantor, that the writing is of a clear testamentary character, and that there were no intervening rights requiring protection, there is no good reason, legal or equitable, why it should not be regarded as revocable at the mere will of the grantor. We therefore sustain the decree of the court below. There is not the slightest merit in the contention that Stevens was an incompetent witness. He has no interest in the subject of the controversy, he is claiming nothing adversely to anybody, he is necessarily the adverse party to the suit, both he and the plaintiff are living persons, and he is called adversely by the plaintiff. We know of no decision or no statute which disqualifies such a witness when so called. The assignments of error are all dismissed. The decree of the court below is affirmed and appeal dismissed at the cost of the appellant.