the return of too large a sum of money giv- the young lady acted with the benefit of en in change. Nothing in this indictment or counsel. It is claimed that Mr. Wells was in the case lessens the clear proof that Mrs. her counsel in this transaction. It is, howHaeberly dominated the family. On the oth- ever, quite clear that the relation of Mr. er hand, Amelia, who was on the stand, is Wells to the complainant in making the setplainly wholly unacquainted with the modes tlement of October 16, 1902, was not (within in which business is managed. She did not the meaning of the decision cited in the preknow the meaning of the simplest legal lan- vious case) that of counsel for Amelia. Up guage, or of words ordinarily used in the to that time Mr. Wells had never been her conduct of business. She is fairly intelligent counsel. He had previously acted as counsel and well educated, but on lines quite remote for the estate, in which the active persons from bargaining, trading, or managing busi- employing him were Mrs. Haeberly and the ness. It is quite evident that in October, guardians of Amelia and her sister. These 1902, she was entirely under the tutelage young ladies might have protested and oband control of her stepmother, Mrs. Haeber- jected, and done all they could to prevent ly. The defendant Mr. Wells, the Pennsyl- the employment of Mr. Wells, and their opvania lawyer, who had conducted the settle- position would have been absolutely useless, ment of the William Robinson estate, and for Mrs. Haeberly and the guardians might who had in his hands the Edna Robinson have chosen him as counsel in spite of all share of the fund which proceeded from the that Amelia and her sister might do. The sale of the realty, testifies without hesita- fact of his employment to act for the estate tion that Mrs. Haeberly and her stepdaugh- did not put Mr. Wells in the attitude which ters constituted a family in which harmoni- the Court of Errors and Appeals declares ous affection was the controlling feeling to a the counsel of a junior and dependent memdegree that was distinctly noticeable. This ber of a family should occupy in order to condition and relation of the parties to this sustain a gift made to the dominant and suit continued after Amelia came of age in controlling member of the family. Mr. Wells August, 1902, and until the spring and early admitted that he had never prior to this summer of 1903. There was no change in transaction been independently employed by the family situation when Amelia came to Miss Amelia Robinson to advise her and care her majority. There was then neither sug- for her interests. gestion nor thought that she should be emancipated and depend upon herself. On October 16, 1905, she was still the submissive and obedient stepdaughter, and Mrs. Haeberly was the commanding head of the house. [1] The Court of Errors and Appeals, dealing with this element, declared that under such circumstances the mere arrival arrival of Amelia at the age of 21 years was of very little importance; that "the relationship existing between a loving parent and child is universally conceded to be one of trust and confidence, and during the youth of the child, and even after the child reaches her majority, when she continues to be a member of the parent's family, the parent ordinarily occupies the dominant position." The court goes on to say, as has been decided in many cases, that, where such a relationship exists, an irrevocable gift, made by one of the subordinate members of the family to the parent or other member who dominates the situation, must be characterized by certain incidents, and that the burden of proof to show that it was so characterized is cast upon the recipient of the benefits of the transaction. Mrs. Haeberly has received the benefit of this gift by the execution of the instrument, a copy of which is annexed to the bill of complaint. With that she must take the burden of showing that the incidents which are required by the law to make such transactions valid happened at the time when the transaction took place. [2] This case varies slightly from the oth The essence of the decision of the Court of Errors and Appeals is that, under the circumstances named, the dependent member of the family has a right to rely on the care and protection which have heretofore saved her from improvident and ill-advised action, and that the making of any irrevocable gift of large value to the dominant member of the family requires that the donor shall have the benefit of the counsel and advice of an experienced person, whose attitude is that of independent devotion to her advantage. In this case it is clear that there was no reason for Amelia's absolute transfer of $9,000 or $10,000 to her mother, except the family feeling of love and affection, and it is exactly that situation contemplated by the Court of Errors and Appeals when it declared that a gift made under such circumstances is voidable at the choice of the donor, unless, when she made the gift, she had the benefit of competent and independent advice. Mr. Wells testifies that the complainant gave him his instructions to prepare the challenged instrument, but admits that Mr. Haeberly, the husband of the donee, was present when they were given. Mr. Wells had long served as the family adviser, and was in all probability selected by Mrs. Haeberly. He had successfully conducted a hard-fought litigation for her. He says he made no charge. for his services at Atlantic City in arranging the settlement and transfer of the complainant's interest in Edna's share to Mrs. Haeberly. He certainly did not feel himself to be N. J.) ALBERT v. HAEBERLY 663 the complainant, touching the moneys in his hands, has not been attacked by the complainant, either in the proofs or in argument. The whole case has been made to turn upon the efficiency of the transaction as a gift to Mrs. Haeberly. I feel constrained, under the rulings of the Court of Errors and Appeals, to hold that the settlement release of October 16, 1902, so far as it operated as a gift of the share of the complainant to her stepmother, the defendant Mrs. Haeberly, must be declared to be invalid. of the donor-complainant, looking solely to The accuracy and fairness of Mr. Wells' her interests in the matter. The transac- statement of account as between himself and tion involved the passage of an interest which the donor had never had in possession. The challenged instrument is not expressed in the form of a gift to Mrs. Haeberly, but in that of a statement of account with Mr. Wells, as trustee, and an agreement that all the property should be delivered over to Mrs. Haeberly, and that thereupon Mr. Wells should be discharged. At the time it was executed, the trustee, Mr. Wells, had in his hands $19,000 (and a fraction) of securities, notes, and other evidences of value, the result of the sale of real estate, which had Under the peculiar circumstances of this been divided off and ascertained to be the case, the defendant Mrs. Haeberly being enportion due to Edna Robinson. In Edna's titled to the income of the fund during her share (dealing with it as real estate), under life, there can be no decree for the delivery the law of Pennsylvania (which has been to the complainant of her share of the prinproven here), the mother, Mrs. Haeberly, cipal of the fund, for she is not presently had a life interest in the income, and Edna's entitled to have possession of it. There two sisters, the complainant and Lena, had should be a decree that Amelia's portion of a right to the payment of the principal of the fund be paid to a trustee, who should, the fund on Mrs. Haeberly's death. The I think, be nominated and appointed in this effect of the disputed transfer (a copy of which is annexed to the bill) was to end the the interests of the life tenant and of Amelia, suit, to hold upon trusts, which accord with trust, as to the fund in the hands of Mr. the holder of the reversion. I will not name Wells, and to empower him immediately to deliver over the principal of it to Mrs. Haeb- the trustee at this time, because I think his selection should be the subject-matter of erly. This he has done, as she admits. Part of the fund was an evidence of debt agreement between the parties, if that be with an ascertained value, part of it was in possible. The defendant Mrs. Haeberly appears to have received from Mr. Wells, and stock, which was delivered in kind. A part of the stock, 124 shares of the Central Brew- to have, the whole of the fund. She will be of the stock, 124 shares of the Central Brew-directed to deliver to the trustee the portion ing Company, has since been returned to the directed to deliver to the trustee the portion complainant. While the legal effect of the in- of the fund which may be in kind, and to strument is to transfer to Mrs. Haeberly pay in money such additional amount as the complainant's reversion in Edna's share may be necessary to make the fund good as of the real estate, that effect is not obvious to the share of the complainant, Mrs. Albert, formerly Amelia Robinson. As none of the on the face of the instrument. There was fund remains in the hands of the defendant therefore the more reason that the com plainant should have had competent advice from some one acting in her interest before executing it. She says she was entirely misled, and did not understand that she was making to her stepmother an absolute gift of the $9,000 or $10,000 which constituted the principal of the fund in Mr. Wells' hands. In my view the elements referred to in the opinion of the Court of Errors and Appeals in the previous case are all here present: absolute gift, without reservation of power to revoke, made by a dependent member of a family to the dominant member, without any valuable consideration proceeding to the donor, and without the donor's having the benefit of competent and independent advice explaining the effect of the challenged instrument. In such cases the gift is voidable at the option of the donor. Wells, and his good faith in accounting for it and paying it over are not impugned, there will be no decree that he pay any of it. My impression is that no costs should go against Mr. Wells, because the litigation has been carried on in the interest of Mrs. Haeberly, and the contest has been made by her. The decree should be that she pay costs. As for Mr. Wells' claim to have cost against the complainant, my reading of his answer is that he did not content himself with defending his own position as trustee. under the release and transfer, but that he has sought to aid Mrs. Haeberly in the maintaining of the validity of the transfer to her. I will not pass finally upon this matter, but, before I sign any decree, I will examine Mr. Wells' answer. If he was in his pleading an active litigant, and is defeated, I do not think I ought to allow him costs. (79 N. J. E. 14) WOOD v. PRICE et al. in the main foreclosure suit, including the pleadings, proofs, decree, writ of fieri facias, (Court of Chancery of New Jersey. Aug. 2, return, etc., the petition of Jacob C. Price 1910.) for surplus money, and the orders made and 1. EVIDENCE (§ 332*)-ADMISSIBILITY-COM- testimony taken thereon, a previous petition PETENCY. On a petition of the wife of a mortgagor to have the surplus left after foreclosure held to answer a writ of sequestration issued in her pending suit for alimony, and to secure her inchoate right of dower, where the surplus was claimed both by a purchaser of the husband and a judgment creditor, evidence of the proceedings in the suit by the wife against the husband was competent against both purchaser and creditor to show that such a proceeding was pending, but not to prove the truth of the allegations therein. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 332.*] 2. DOWER (§ 46*)-INCHOATE RIGHT OF WIFE TO SURPLUS AFTER FORECLOSURE. Where the wife of a mortgagor who has brought suit for alimony is after foreclosure entitled to subject the surplus to her inchoate right of dower, she is entitled to have one-third of it reserved, even though the mortgagor's judgment creditor has attached such surplus. [Ed. Note. For other cases, see Dower, Dec. Dig. § 46.*] Action by Caroline Wood, as guardian, to foreclose a mortgage, against Robert A. Price and others. On petition of Alice C. Price to have surplus money held to answer writ of sequestration and to secure her inchoate right of dower in the mortgaged premises. Petition granted. Vree of Alice C. Price respecting the surplus money, and the proceedings thereon, also all the proceedings and files in the pending suit of Alice C. Price on her bill for alimony, including the writ of sequestration and return. thereof, and all other papers and proceedings therein. Objection was taken to the introduction in evidence of the proceedings in the alimony suit, on the ground that they were not evidential as against Martha E. Struble and Jacob C. Price. They were admitted, however, not as tending to prove the truth of the averments made by Alice C. Price against her husband in the proceeding, but only for the purpose of showing that such a proceeding is pending, the nature and object of it, and what has been done in it by virtue of the issuing and execution of a writ of sequestration to fix a lien upon the mortgaged premises and upon the surplus money arising from the sale thereof. Jacob C. Price's petition has now been disposed of by denying his prayer to have the surplus money presently paid to him as purchaser, but reserving his rights as against all other parties than Mrs. Price. The decision was that by the writ of sequestration Charlton A. Reed, for petitioner. land, King, Wilson & Lindabury, for re-issued in the alimony suit and by the execuspondents Struble and Price. PITNEY, C. Pending the determination of the petition of Jacob C. Price to have the surplus money in this cause paid to him as purchaser of the equity of redemption from the mortgagor, Mrs. Price, the wife of the mortgagor, filed her present petition, praying that the money paid into court by the sheriff in excess of the amount due to Martha E. Struble, defendant, a judgment creditor, should be held to answer any order which might be made in Mrs. Price's pending suit for alimony against her husband, Robert A. Price, the mortgagor, pursuant to the command of a writ of sequestration issued in that proceeding; and also praying that one-third of the whole amount of the surplus money might be impounded to secure Mrs. Price's inchoate right of dower. [1] Upon the filing of this petition, an order was made requiring Martha E. Struble and Jacob C. Price to show cause why the relief prayed should not be granted to Alice C. Price, the petitioner. Upon the return of the order to show cause Mrs. Struble and Jacob C. Price appeared, and the matter has been heard before me upon proofs taken viva voce in open court. Besides the testimony of witnesses, there were introduced in evidence all the original files and proceedings tion of that writ upon the mortgaged premises a lien was secured in favor of Mrs. Price prior to the claim of Jacob C. Price as purchaser, and that Mrs. Price's lien is transferred to the surplus money, besides which she is entitled to have her inchoate right of dower protected. By the final decree in the main cause, and by an order subsequently made under date April 12, 1909, disposing of Mrs. Price's previous petition herein, it was established that Martha E. Struble, as judgment creditor, was entitled to a lien upon the mortgaged premises next after the first mortgage of Caroline Wood, guardian, the complainant; and by the order just mentioned the sheriff was required to pay to Mrs. Struble the amount directed to be paid to her by the final decree and the execution issued thereon, less the sum of $72 which had been paid to her on account of her judgment on June 15, 1908, and before the final decree. Prior to this order of April 12th, however, the sheriff had paid into court all the proceeds of sale that remained after satisfying the complainant's mortgage, with interest and costs. The money thus paid in, and to which Mrs. Price's petition is addressed, is $5,260.34. The date of payment into court was April 5, 1909. The amount due upon this date on Mrs. Me.) MAGOON v. FLANDERS 665 Struble's judgment is shown by the follow- The plaintiff was allowed to amend his writ ing statement: $2,566 33 The amount just stated, with accumulations of interest thereon from April 5, 1909, as computed according to the rules of this court, should be paid to Mrs. Struble. [2] Out of the residue of the money paid into court Mrs. Price is entitled to have reserved one-third of the entire sum of $5,260.34 (for, of course, her inchoate right of dower is not affected by Mrs. Struble's judgment), and such one-third, or $1,753.45, should be held to secure Mrs. Price's dower, so that, in case she survives her husband, she may receive the income thereof during the remainder of her life. But the entire amount of money that was paid into court by the sheriff, after deducting therefrom the amount due to Mrs. Struble, is subject to the process of of sequestration issued in Mrs. Price's alimony suit. The order will be, therefore, that the sum of $2,566.33, with accumulations from April 5, 1909, be paid to Mrs. Struble in satisfaction of her judgment, and that the residue of the money paid into court by the sheriff, such residue amounting to $2,694.01, be transferred to the credit of the alimony suit, to be there treated as subject to the writ of sequestration and the proceedings thereunder, reserving, however, Mrs. Price's right to have $1,753.45 out of this money retained to secure her right of dower in the event of her surviving her husband, and reserving Jacob C. Price's rights as against all other parties than Mrs. Price. (108 Me. 449) MAGOON v. FLANDERS. (Supreme Judicial Court of Maine. Nov. 23, 1911.) VENDOR AND PURCHASER (§ 350*)-CONTRACT TO CONVEY-EVIDENCE-SUFFICIENCY. In an action to recover for breach of contract to convey land, evidence held to warrant a finding that plaintiff waived his right to purchase and held possession as a tenant. [Ed. Note. For other cases, see Vendor and Purchaser, Dec. Dig. § 350.*] Exceptions from Supreme Judicial Court, Somerset County. by adding a count for money had and received. Plea, the general issue in assumpsit, with a brief statement alleging that the "plaintiff waived any right to purchase the property described in his writ, if he ever had any such right, and by his conduct is estopped to claim any damages from said defendant." At the conclusion of the testimony the presiding justice ordered a verdict for the plaintiff for $100.07, and the defendant excepted. It was stipulated in the bill of exceptions that, if the exceptions were sustained, judgment should be for the defendant. Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, BIRD, and HALEY, JJ. Gould & Lawrence, for plaintiff. Butler & Butler, for defendant. WHITEHOUSE, C. J. This is an action on the case to recover damages for an alleged failure on the part of the defendant to convey to the plaintiff certain real estate according to the terms of the following contract signed by the parties, viz.: "In consideration of eight hundred and fifty dollars paid by W. E. Magoon on the following terms: Eight dollars per month for one year and three hundred dollars at the end of the year and the balance yearly-B. L. Flanders agrees to give said Magoon a good and sufficient title to the land and buildings thereon situated north of the Catholic cemetery on North St. in Skowhegan. "Skowhegan, May 4, 1909." The plaintiff was also allowed to add a second count for money had and received, under which he claimed to recover $96 and interest, being the amount of 12 payments under the contract at $8 per month. The defendant contended that the plaintiff waived whatever right he had under the contract to purchase the property, and by his conduct was estopped to claim any damages from the defendant. At the close of the testimony the presiding judge ordered a verdict for the plaintiff for $96 and interest, with the stipulation that, if the exceptions taken by the defendant were sustained by the law court, judgment should be entered for the defendant. It is the opinion of the court that the exceptions must be sustained. There was sufficient evidence, if believed, plaintiff's failure to receive a deed of the to support a finding by the jury that the premises was due to his own breach of the contract, and not to any fault on the part of the defendant. It is conceded that the plainAction by W. E. Magoon against B. L. tiff failed to pay the $300 at the end of the Flanders. Verdict for plaintiff, and defend- first year, and no explanation or excuse was ant brings exceptions. Exceptions sustained. offered for the failure, except that he did Action on the case to recover damages for not have the money to pay it; but it does an alleged failure to convey real estate ac- not appear that he asked for any further cording to the terms of a written contract. time or indulgence. On the contrary, the ev*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes (8 185*) - DISSOLUTION the officer taking the debtor's receipt was not idence would authorize the jury to find that [ 2. ATTACHMENT The written contract is silent in regard to the plaintiff's occupation of the premises during the first year. But the plaintiff was allowed to take possession upon the payment in advance of $8 a month, a fair rental for the place. There was no suggestion that the plaintiff was to have the use of the premises for a year, rent free, if he failed to pay the $300 at the end of the year without fault of the defendant. On the contrary, it appears from the defendant's testimony that near the close of the year, in April, 1910, the plaintiff asked for a reduction of "rent," and under the practical interpretation given to the contract by the parties, the jury would have been justified in reaching the conclusion that the monthly payments made by the plaintiff the first year were to be retained by the defendant as a fair rental during that time, if the plaintiff gave up possession by reason of his failure to pay the $300, without fault of the defendant. The practical result was that the plaintiff occupied the house for a year at a reasonable rental, and by leaving at the beginning of the second year, he sustained no damage for which the defendant was legally or equitably responsible. 3. BANKRUPTCY (§ 421*)-DISSOLUTION OF AT TACHMENT. having been discharged by his bankruptcy, there A claim against an attachment defendant could be no liability on his receipt previously given the attaching officer, in which he promised that, after judgment for plaintiff, he would on demand redeliver the property to plaintiff or pay him a specified sum. [Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 421.*] Report from Supreme Judicial Court, Graham and others. On report. Judgment for defendants. SAVAGE, SPEAR, CORNISH, BIRD, and Charles G. Briggs and Herbert W. Trafton, for plaintiff. Willis B. Hall, William P. Allen, Martin & Cook, and Hersey & Barnes, for defendants. WHITEHOUSE, C. J. [1] This is an action of assumpsit upon a receipt given to the plaintiff, a deputy sheriff, for 250 barrels of potatoes attached by him on a writ as the property of the defendant Graham. By virtue of this receipt the defendants promised that, after judgment in favor of the plaintiff in the original action, they would, on demand, redeliver the potatoes to the plaintiff, or pay him the sum of $500 Thereupon the plaintiff relinquished the custody of the potatoes to the defendant Graham. The writ, dated March 12, 1908, was made returnable at the next April According to the stipulation of the parties, term of the Supreme Judicial Court for the the certificate must be: Exceptions sustained. Judgment for the defendant. (108 Me. 452) GARY v. GRAHAM et al. (Supreme Judicial Court of Maine. 1911.) county of Aroostook, and was duly entered in court at that term and continued. On the 16th day of the following June, the defendant Graham filed his petition in bankruptcy, was adjudicated a bankrupt, and afterwards received his discharge in bankruptcy. On the 20th day of November, 1909, on petition of the trustee in bankruptcy of Nov. 24, the defendant Graham, it was ordered by the referee in bankruptcy appointed by the United States District Court that the rights under the attachment of the potatoes should be preserved for the benefit of the estate, and that the trustees should make application to the Supreme Court of Aroostook county for permission to intervene in his capacity as trustee to become party plaintiff in the suit. Thereupon the trustee, having 1. ATTACHMENT (§ 184*)- DISSOLUTION-ExECUTION OF RECEIPT. An attachment of personalty is dissolved by the officer taking from the debtor, in lieu of the property, a receipt therefor promising to pay, on judgment for plaintiff, a stated sum or to redeliver the property. [Ed. Note.-For other cases, see Attachment, Cent. Dig. § 586; Dec. Dig. § 184.*] |