Opinion
04-22-1909
LAKE et al. v. WEAVER.
John J. Crandall, for complainants. Louis G. Morten and Gilbert Collins, for defendant.
On rehearing.
For former opinion, see 70 Atl. 81.
John J. Crandall, for complainants.
Louis G. Morten and Gilbert Collins, for defendant.
GARRISON, V. C. (orally). In an opinion filed on the 15th day of May, 1908, I formulated the issues and announced my conclusions in this cause.
This cause has been before the court for a long time, the first testimony therein having been taken at Trenton on the 11th of December, 1906. Among the matters offered in evidence at a hearing held January 28, 1908, was the deposition of one George A. Bourgeois taken on the 11th of January, 1908This deposition was taken at the instance of the complainants. Among the objections made on behalf of the defendant to the admission of this deposition was that it appeared that Mr. Bourgeois was at the time of the communications and transactions alluded to in his testimony the solicitor and counsel of Mrs. Josephine T. Weaver, and that, by the familiar rule which protects the communications of clients, her communications to him were privileged and protected. The court thereupon considered all of the evidence which had been taken at that hearing upon the matter, and, not finding any in which Mrs. Weaver had waived her privilege, ruled that the deposition was not admissible. Therefore at the time the court decided the case there was no testimony, excepting that given by Mrs. Weaver upon the witness stand, as to the transactions between her and Theodore at the time that she received the deed in question, which deed having been lost the defendants took the proceedings to have it established under the statute which are sought to be enjoined in this suit by this bill.
The complainant, after the filing of my opinion of May 15, 1908, petitioned the court for a rehearing, which was granted and has now been held. At that rehearing it developed that the testimony taken at Trenton on December 11, 1906 (overlooked by all of the parties and by the court at the time that the admissibility of the Bourgeois deposition was being discussed), contained many references by Josephine T. Weaver to the matter in hand. It is shown in that testimony that Mrs. Weaver, upon being interrogated by her counsel as to why she had admitted in the specific performance suit brought against her by the Whites that one-third of the property was owned by the children, answered that it was because of advice given to her by Mr. Bourgeois, and she assumed to recite the language that he used to her in giving her that advice, saying that he told her that if the deed was lost, as she said it was, her rights were all lost, that she had no rights, that they were lost; and that, acting under that advice, she admitted that the children had a third interest. The Bourgeois deposition, dealing with this matter of the failure to set up the rights of Mrs. Weaver under the deed of her son to her in the specific performance case, states that the reason was that she told him, Bourgeois, that this deed, which she exhibited to him, was given to her by her son for no consideration whatever; that she had given nothing for it; that she held it for the children of Theodore, and had no other interest in it; and that, under the circumstances, he advised her that there was no necessity for her to set it up in the specific performance case. Since the entire case, as dealt with by me heretofore, rested upon the testimony of Mrs. Weaver, and since the testimony of Mr. Bourgeois, an impartial and credible witness, shows that her testimony is false, I propose to reverse my finding of fact.
I now find that Mrs. Weaver received this deed under circumstances which made it optional with her as I heretofore held in the partition suit (Smith v. White [N. J. Ch.] 65 Atl. 1017), whether she would take it or not, and I find that she did elect, as shown by the Bourgeois testimony, not to take it, and that by her actions and conduct she did in every way that was possible, except by actually drawing a deed from herself to the children and putting that on record, vest the title in the children. In other words, the title descended to the children on the record. If she withheld the deed from record, the record would vest The title in them. She did withhold the deed from record. She stated that. She practically shows that, whatever her rights were, she was making a gift to the children, or, at least, not claiming any rights herself, which resulted in a gift to the children, or resulted in the children getting the title; and I now find the very state of mind exhibited by her own conduct which, without the Bourgeois testimony, I failed to find in the suit. I will advise a decree that the defendant Josephine T. Weaver is enjoined from proceeding to have this deed established of record under the statute, and that Josephine T. Weaver has no interest in the one-third of the proceeds realized in the partition suit, which therein nominally go to the complainants in this suit, and that the complainants in this suit may apply therein for their rights upon notice to the defendants. The foregoing was the oral statement of the court in deciding the case at the conclusion of the rehearing.
Having been notified of the taking of an appeal, I think it proper to add a brief statement for the purpose of making the grounds of my decision more easily understood. I do not think it necessary to restate the facts in view of the two previous statements reported in Smith v. White, supra, and Lake v. Weaver (N. J. Ch.) 70 Atl. 81. I desire to add, however, the impression which I think is apparent in my previous dealings with this evidence, which I obtained from Mrs. Weaver's manner, and, to some extent, from her own testimony, and that was that she was not willingly asserting any claim under the deed from her son to herself, but was, so to speak, permitting herself to be used to establish a legal position outside of and unconnected with her own volition. Her conduct with respect to the deed itself was in accordance with this attitude. She did not record it, and no longer had it in her possession, and my impression always was that she had voluntarily destroyed it. Even before the admission of the Bourgeois deposition, I could not escape the conviction that Mrs. Weaver from the date of the deed in 1889 to 1905, when the application to establish the lost deed was made, a period of 16 years, did not intend to take any personal advantage of the deed. But, in the absence of any clearlegal proof that this conduct was the result of an executed purpose to thereby make a gift to the children of her son (the grantor in the deed), I decided that her legal rights prevailed. And I do not now decide that such legal rights fail because she must be considered a trustee. I am aware of and give full weight to the decisions in our state to the contrary. I do not intend by this decision to abate at all from the rule established in this state that a conveyance upon an expressed consideration with the uses declared in favor of the grantee is protected under the statute of frauds from attack by oral proof on the part of the grantor. This rule I consider to be too well settled to require citation. If, however, the alleged trust in this case is to receive any consideration, and the decision be not put upon the ground upon which I put it, the complainants could prevail without infringing upon the rule just stated. There is nothing to prevent one who is a trustee under an oral trust unprovable under the statute of frauds from voluntarily executing such a trust; and, after such execution, the court will not interfere. 15 Am. & Eng. Ency. of Law (2d Ed.) p. 1169, note 5. Giving to the Bourgeois deposition the controlling weight to which, by reason of the character of the witness and his absolute impartiality, it is entitled, it establishes that Mrs. Weaver informed him she had no interest in this property, was a dry trustee, and was thereupon advised by him that, under the circumstances, the deed which she exhibited to him was of no consequence or moment. In the very suit then in hand she asserted the ownership by the children of her son, the grantor in the deed, of the very lands described in the deed, and at or about that time the deed finally disappears—destroyed, as 1 have before stated I believe, by her.
The proper finding upon this state of facts would be that she had executed the trust. If she recorded the deed and the legal title was vested in her, she was a dry trustee. If she desired then to execute the trust—which was not enforceable against her because of the absence of a writing—she would have to execute a deed or declaration of trust to the children aforesaid. But her purpose to execute the trust and vest the title in the children would be just as effectually accomplished without any expense or trouble, by merely destroying the paper evidencing the legal title in herself. It was an immaterial detail, therefore, excepting only the matter of expense, whether she recorded this deed and made one back to the children, or whether she destroyed the deed, and thereby just as effectually caused the title to be in the children. The children by the operation of law held the title to this property unless the deed from their father to Mrs. Weaver was effective. Her conduct therefore at that time was an effective execution of the trust, andthe fact that the same was not enforceable against her is now negligible. But, as before stated, I think exactly the same finding will result by considering her in the position of a donor whose gift was completely executed, and will not now be undone.
While only her own testimony was usable to discover the facts, I was constrained, unwilling, as appears by my statement at the time, to find that she might hold this otherwise voluntary deed as a mortgage. I could not even then escape the conviction that from the time she obtained the deed as aforesaid, and for the 16 years which followed, her intention had always been to take no advantage under the deed, and to give the benefit of the property to the children of her son. But I had not, up to the time of the admission of the testimony of Bourgeois, any sufficient proof upon which to rest my conviction of what the situation really was. That evidence in my view clears up the whole case. It shows that Mrs. Weaver never intended to claim anything under the deed given her by her son; that, therefore, she refrained from recording it; that, when every legal and moral necessity called upon her to honestly state the facts and her intention or claim (namely, in the specific performance case of the Whites against her), she not only negatived her own claim by not setting it up, but affirmatively set up that the right, title, and interest were in the children of her son. At that time, with full knowledge of the facts, with the necessity for her to declare her intention, with the deed in her possession, and able counsel at her elbow, she disclosed in my view her intention and determination, which was to refrain from claiming anything personally beneficial to herself by reason of the deed, and to thereby give to the children of her son the property in question. Immediately thereafter the deed disappeared. I think it entirely clear that she must be held to have effectually given (in consonance, as I believe, of her original intention never to take) the property in question.
The decree will be along the lines above indicated.