Muller v. Balke

Wilkin, C. J.: This bill is a confession on the part of the complainant that he made the deed which he now seeks to avoid, for an unlawful and inequitable purpose, viz., to place his property in such condition that the same would not become charged with the dower of his intended wife. He does not, on his own showing, come into court with clean hands, and on that ground alone is not in a position to ask relief in equity. He does not claim in his bill that he was induced by others to form the unlawful purpose, but only that he was taken advantage of in the execution of that purpose. The only lawful means by which he could place his property in a condition so that it would not be charged with the right of dower in the wife he was about to marry, was to divest himself of the title to it by a conveyance made in good faith. That he could not put it out of his hands for the purpose of defeating dower, and when the motive for so doing had ceased, by the death of his wife, invoke the aid of a court of equity to re-invest himself with the title, is too well settled to call for the citation of authorities. The decree of the Superior Court must, however, be affirmed on the broader ground that complainant wholly failed to prove the allegations of his bill. Emma Balke ■was the daughter of Charles Muller, a step-son of complainant, and had resided for a time with him. Her father, being about to contract a second marriage, had made a conveyance of his property to the same Charles S. Gloeckler, for the benefit of his children. His first wife having died, and having concluded to marry again, complainant desired to place his property in a condition so that it would not be subject to dower, and having knowledge of the conveyance by Charles Muller to Gloeckler, he consulted with those parties and Emma about the matter. They advised him to consult an attorney, and the four parties accordingly went to the office of Lackner & Butz, where, under the directions of Lackner, the deed was prepared, and afterwards signed, executed and delivered. Lackner, testifying in the case, stated the transaction as follows: “These parties came to Mr. Butz in the first place. He, being busy, sent them to my room. I examined Edward Muller as to what he wanted, spoke to him in the German language, and he said he wanted to make some disposition of his property; that he had some intentions of marrying again, and would like to place his property in shape. He wanted to provide for one of his relatives, I think he said, and also wanted to make some provision for his future wife. That he had been advised to make a will. We talked the matter over. I explained to him that he could make a will, if h.e desired, and, of course, could revoke it at any time and change it, but that another way of making a disposition would be to make a deed of trust. If he had any apprehensions that he might have any discussions with his future wife about the matter, and did not want to be importuned by her, perhaps the better way would be to make a deed of trust, and settle the matter once for all. That seemed to strike him favorably. He said so— talked the matter over, and asked me some questions about it and the rights and duties of the trustee, and especially the rights of the trustee, and what he could do with the property, etc., which I explained to him, and thereupon he asked me to draw up such an instrument. I asked him what sort of disposition he wanted to make of the property, and then he spoke of Emma Balke. I think he called her his daughter. I am not sure about that, however. I think he spoke of Charles Muller as his son. I thereupon called in a stenographer, and dictated the deed. After I had dictated it, 1 had the stenographer read it to us in English, and I translated it to Mr. Muller and all the parties. Mr. Muller thought that was satisfactory. I told him I would have it written up, and he should come the next morning with his trustee, Mr. Gloeckler, who would also have to sign the instrument, and sign it and acknowledge it in our office. He came the next day. The instrument had been written out, and I read it over to the parties in English, and translated it into German. I was very particular about it, because I wanted the old man to understand exactly what he was doing with his property, this being the only piece of property that he had. He seemed to understand it fully. He said so, and thereupon executed the paper in our office. I think more than an hour was taken in the first interview, and less than half an hour in the second interview. I think Edward Muller fully understood what I said to him. I could understand him very well. He understood the distinction between a will and a trust deed most clearly. I explained it to him over and over again. He asked me about the duties of a trustee, and what right Gloeckler would have to convey the property. I don’t think Emma Balke said anything about it at all. Charles Muller may have shared in a word here and there in the conversation. I don’t remember that. The bulk of the conversation was carried on between Muller and myself. I think Gloeckler asked a good many questions in regard to his own doings. At first he did not care to undertake the duties of a trustee. I had not known the parties before. I knew Mr. Gloeckler, but the other parties I did not know before that day. I talked in German. I think Edward Muller talks in low German. I understand it very well, however, and I know he understood me from the answers that he gave.” On cross-examinatian he said : “I was not aware that Edward Muller was deaf. He answered my questions. He understood me. I have every reason to think he understood me.” The testimony of Emma Balke, Charles Muller and Gloeckler is to the same effect. The latter, speaking of the interview with the attorney, says : “Well, there was probably something said about a will, or ‘piece of paper,’ as the old gentleman put it. He wanted to draw up something whereby Emma Balke would become the owner of this property when he was no more and his wife was no more. That was simply talked of very briefly between Mr. Lackner and Mr. Muller, the old gentleman. All this conversation went on in German.” The only evidence in the record contradictory of that of these witnesses is the testimony of the complainant himself, and if it were conceded that it fully supports every allegation of the bill, it certainly could not be claimed that it should be given greater weight than that of the four testifying to the contrary. We entertain no doubt as to the correctness of the decree of the Superior Court on the facts of the case. The point that the deed is void upon its face is without force. The instrument itself is a complete refutation of the argument made against it. The authorities cited by counsel have no application to the facts of this case. The decree of the Superior Court will be affirmed. Decree affirmed.