Fuller's Adm'r v. Fuller

A. J. WALKEB, C. J. The important question of this case is, whether the evidence is such as to justify a decree setting aside the deed of Alfred Fuller, made on the 26th March, 1855. This deed, upon a nominal consideration, conveys to the children of the grantor “begotten in lawful wedlock” all the grantor’s property, real and personal, reserving to him, the right to the possession of the property during his life, but subject to the restriction, that all increase and income, beyond an ample and comfortable support for himself and family, should be incorporated with the corpus of the estate. The grantor had two sets of children. The older set were begotten in lawful wedlock; and of these, two sons had died, leaving children. This set of descendants lived apart from the grantor. The younger set of children were the fruit of an illicit connection with a woman whom, while the wife of another man, he had defiled, and taken into his house. He married in 1840 ; but the second set of children were born during his concubinage with her. This woman, and those children, composed his family at the date of the deed, and were recognized and treated by him as his wife and children. This woman and her children, and the children of the grantor’s deceased sons of the older set, were excluded from all participation in the estate of the grantor, in the event of their surviving him; and he was, by an irrevocable instrument, deprived of the power of providing for them. To make some provision for this woman and her unlawfully begotten children, is proved to have been, as far back as 1837 or 1838, an object of intense desire, and even painful solicitude to the grantor; and such a desire seems to have continued up to the day of executing the deed. No reason for a change of sentiment or feeling in reference to the woman an d her children is even attempted tobe made, nor is any explanation made of a purpose to exclude from participation in his estate the children of the deceased sons of the first set of children. The grantor, at the time of making the deed, was about seventy years of age. He had been. a man of great natural vigor of intellect and will; but the evidence demonstrates that the vigor of his intellect, and the force of his [304] will, had declined. His sons belonging to the first set of children were determined, resolute, brave men; one of them esteemed by a competent judge to "have been a dangerous man. These sons were deeply incensed at the criminal conduct which had given birth to the grantor’s second set of children, and some of them imputed to him the murder of them mother. The grantor dreaded the opposition of these sons to any act providing for his illegitimate children and their mother; and this was manifested, at least seventeen years before the deed was made, by the expression of a desire to conceal any arrangement to provide for them from the sons of his older set of children, The grantor was an illiterate man, who could write his name; but it appears doubtful, from the evidence, whether he could read manuscript so as to understand it. He had accumulated a good, if not large fortune; and his love of property was so great as to procure for him, from one of the witnesses, the appellation of “skin-flint.” This old man, enfeebled at least in will and capacity for resistance, seventy years of age, loving property, anxious to provide for the woman whom he had made the mother of illegitimate offspring, and for her children, and for many years cherishing that as a darling object; estranged, to some extent at least, from his first set of children, and dreading the opposition of some of them, — made a deed, whereby he irrevocably stripped himself, with a small reservation, of all property of every description, destroyed his power to provide any thing for the woman and the children she had born him, effectually thwarted his long-cherished object of providing for them, as well as for the orphans of his dead sons; and all this in favor of a set of children, who cer- ■ tainly presented to him no peculiar ground for preferment over his other children. Such a deed is unnatural, unreasonable, and suspicious. At the time when the deed was executed, forty-one of the grantor’s negroes were in the possession of some of his sons, belonging to the first set of children, in favor of whom this extraordinary deed was made. These negroes were restored to the grantor, immediately after the execution of the deed; and the evidence convinces us that they were [305] restored because the deed was executed, and that the deed was executed in order to procure the restoration of them; and that if the grantor’s mind had been left to its free and uncontrolled action, he would not have made such a deed. We are further convinced by the evidence, that the grantor had made a contract for the sale of his property, with a view to preparing to make a more secure provision for the woman with whom he had last lived, and his children by her; that some of the sons, belonging to the set of children in whose favor the deed was made, in the night-time, and without the grantor’s knowledge, carried off forty-one of his most valuable slaves, for the purpose of preventing the consummation of the sale; and that, to obtain a restoration of those slaves, and to avoid further conflict with those sons, the grantor made the deed; and that those sons availed themselves of the possession of the slaves, and of the inequality of their aged .father in a contest with them, to procure the deed. We are further convinced that, either from-the confusion and perturbation of mind under which the deed was signed, or from the haste in which its contents were considered and discussed, or from his failure to comprehend the reading of it, or from his own inability to read it intelligently, the grantor misunderstood it, and thought that under it all his lawful heirs, which would have included the second set of children, and the children of his dead sons, would have shared in his prosperity, and that the deed was executed under this mistake. Finding these conclusions of fact, it is clear that, upon established principles of law, the deed should be set aside. Thompson v. Lee, 31 Ala. 292; Taylor v. Kelly, 31 Ala. 59; Pool v. Pool, 35 Ala. 12; Huguenin v. Baseley, 14 Ves. 273; Dent v. Bennett, 4 M. & C. 269; Taylor v. Taylor, 8 How. 183; Whelan v. Whelan, 3 Cow. 537; 1 Story’s Equity Jur, § 222. 2. We have no doubt of the legality of the marriage of Alfred Fuller with Susan, the mother of his last children. At the time of that marriage, he was himself a widower, and was, therefore, competent to contract marriage. The former husband of Susan had previously obtained a divorce [306] in Georgia, where he resided. This rendered her competent to marry. If there was any provision of the Georgia law, prohibiting the guilty defendant in a divorce suit from marrying again, this prohibition had no extra-territorial operation ; and notwithstanding such prohibition, the guilty party would be competent to marry in the State of her residence. — 2 Bishop on Marriage and Divorce, §§ 700-01; 1 Bishop on Marriage and Divorce, § 306. The decree of the court below is reversed, and a decree must be here rendered, setting aside and annulling the deed made on the 26th March, 1855, and the cause must be remanded for further proceedings in conformity to the foregoing opinion and decree. Byrd, J., did not sit in this cause, having been of counsel in the court below.