Opinion
03-26-1890
MCARTHUR v. MCARTHUR et al.
Riker & Riker, for complainant. Leon Abbett, for defendants.
Conclusions of advisory master.
Riker & Riker, for complainant. Leon Abbett, for defendants.
GUMMERE, Adv. Mast. The complainant seeks by this suit to have a bill of sale made by her to her two granddaughters, Mary K. and Theresa Byrne, declared to be fraudulent and void, and directed to be delivered up to be canceled; and, further, to have the two granddaughters account to her for certain money received by them which she claims belongs to her. The facts set out in the bill, briefly stated, are as follows: That the complainant, who is an old lady, about 70 years of age, at the instigation of her son Thomas J. McArthur, executed a paper on the 2d day of June, 1885, in favor of her two granddaughters, with the understanding that, although it was in the nature of a bill of sale, it would take effect only at her death; the object of the complainant being to give her two granddaughters, at her death, all her household furniture, silver-ware, etc., and that this object was entirely understood by her two granddaughters and the other defendants in the case. That the paper which she executed, instead of reserving to her the possession and use of the property embraced in it during her life, was so drawn as to convey it absolutely to her two granddaughters without any reservation whatever. That the said paper, which was in form a bill of sale, was duly executed by the complainant, but was never delivered to the grantees named therein; the defendant Thomas J. McArthur taking charge of it, at his mother's request, to keep possession of the same until her death, at which time it was to take effect. That the property embraced in the bill of sale was at the time of the execution of that paper insured in the name of the complainant, but that a few days afterwards two of the defendants, Thomas J. and Joseph McArthur, sons of the complainant, caused the policy of insurance on this property to be transferred, without the complainant's knowledge, to the names of Mary K. and Theresa Byrne, as the owners of said property, and that a few weeks later they took out another policy of insurance on the property in the name of the two granddaughters as owners. That in the month of February, 1888, a fire occurred at the residence$$$
of the complainant, by which much of the property embraced in the bill of sale was destroyed or damaged, and that about $5,500 was paid by the insurance companies to Mary K. and Theresa Byrne in settlement of the loss thereon. That, notwithstanding the fact that the bill of sale was not intended by the complainant to take effect until her death, which intention was well known to all of the defendants, and notwithstanding the fact that it was never delivered, the defendants Mary K. and Theresa Byrne now claim to be the owners of the property described in it, pretending that the complainant delivered the same to them, and intended that it should make them absolute owners of the property embraced in it, and also claim that the moneys received by them from the insurance companies belongs to them absolutely. The relief sought is that the bill of sale may be declared to be fraudulent and void, and to have been obtained by false representations and undue influence, and may be decreed to be delivered up to the complainant for cancellation; and, further, that an accounting maybe had of the insurance moneys received by the two granddaughters, Mary K. and Theresa Byrne.
The statements in the bill are substantiated by the evidence produced on behalf of the complainant. Certain other facts, however, also appear in that evidence, which, it seems to me, make it clear, on the complainant's own showing, that she needs no relief at the hands of this court. The facts to which I refer are: First, that the bill of sale which is attacked by her, and which she says was never delivered, is at the present time in the possession of the complainant herself; and, second, that the whole of the property embraced in it, except the articles which were destroyed by fire, are also in her possession. A decree directing the defendants to deliver up for cancellation a paper which is neither in their custody nor control, to the complainant, who already has it in her possession, would, as it seems to me, be absurd, and a nullity on its face. Nor is the complainant entitled to relief on the ground that she was induced to execute the paper by false and fraudulent representations or by undue influence. There is nothing in the evidence produced by her which would justify such a conclusion. She admits that she intended to make a gift of this property to her granddaughters, which should take effect at her death. The testimony taken in her behalf shows that there was no intention to defraud her in the drafting of the instrument, but rather a misapprehension of its legal effect; it being supposed by all the parties that the complainant's intentions would be effectuated by her executing an absolute bill of sale, and withholding its delivery until her death, and that this course was pursued. There was no attempt on the part of the complainant to show that her gift to her granddaughters was the result of undue influence exercised by them, or by any one in their behalf.According to her own showing, therefore, there has merely been a failure on the part of the complainant to carry out her intention of making this gift to her granddaughters, by reason of a mutual misunderstanding as to the legal effect of her action in the matter. She certainly has suffered no harm by the mistake, and is entitled to no relief on that ground. Nor does the fact that the granddaughters claim that the bill of sale was intended to and does make them the absolute owers of the property embraced in it afford a reason for the interference of this court, in my opinion. It is not pretended that they have taken any steps to enforce their claim, or to disturb the complainant in her possession, and, in such a condition of affairs, I do not understand it to be the right of the complainant to bring the question of the validity of the claim of Mary K. and Theresa Byrne to the test of judicial decision. The evidence produced by the complainant having shown that she never delivered the bill of sale, and that she has both it and the property which it embraces in her possession, she needs no aid at the hands of this court, so far as that instrument, and the property described in it, are concerned.
The only other relief sought is an accounting of the moneys received by the defendants Mary K. and Theresa Byrne in settlement of the insurance losses on that portion of the property which was destroyed by fire. The amount of money received by these defendants from the insurance companies is not in dispute. It is admitted on both sides to be the sum of $5,639.25. This being so, there is no reason for an accounting. Admitting the complainant's story to be true, and that this money belongs to her, her remedy is by an action at law for money had and received, and not by a bill in equity.
On the case made by the complainant, I can see no reason for the interference of a court of equity, and, as a consequence, think that there should be a dismissal of her bill. I do not, however, base my conclusions entirely upon the grounds I have stated. This litigation has been a protracted one, the trial of the cause occupying some 10 days, and has necessarily been a source of much expense to the parties; and I feel that they are entitled to have my opinion on the merits of the case. The defense set up in answer to the complainant's claim is that the bill of sale which is attacked by the complainant was made for the purpose of vesting in Mary K. and Theresa Byrne an absolute ownership in the property which it purports to convey, and immediately after its execution it was delivered by the complainant to her granddaughters. I am entirely satisfied of the truth of this defense. Witness after witness—all of them, so far as I have been able to judge, entirely disinterested—has testified that, almost from the time when the bill of sale purports to have been executed, the complainant, in conversation with these witnesses relating to the property conveyed by it, declared that such property had been given or sold by her to her granddaughters; that it was theirs; and that she had no further interest in it. With the exception of the complainant herself, almost the only witness whose testimony supports the claim put forward by her is her son Thomas; and his story told on the witness stand is so entirely opposed to his conduct in dealing with the property after the bill of sale was executed, and his declarations with regard to its ownership, as to be entitled to very little weight. According to his own story, it was at his suggestion that his mother determined to convey this property to her two granddaughters. It was he who had the bill of sale prepared by a scrivener, as well as the schedule annexed to it. It was he who had the policy of insurance upon the property transferred from his mother's name to the names of her two granddaughters, and who took out additional insurance, also, in their names. It was he who had charge of the adjustment of the losses on this property with the insurance companies; and in the course of that adjustment he invariably represented to the insurance agents that the property belonged to Mary K. and Theresa Byrne, exhibiting the bill of sale to them as evidence of that fact. It was he who received from the insurance companies the moneys paid in settlement of the fire loss, and he directed the checks for those moneys to be made out in the names of Mary K. and Theresa Byrne. During all this time these parties were living together as one family, and it was a most harmonious one. Since that time a bitter quarrel has taken place between the defendants Thomas McArthur and his brother Joseph. The complainant sides with her son Thomas, while the two granddaughters take the part of their uncle Joseph. There has been an entire disruption of the family relations. The complainant is an old lady, feeble in body, and with a memory much impaired. Her reliance upon her son Thomas is implicit. I believe her to be honest in now thinking that her gift to her granddaughters was intended by her to take effect in future, but I cannot resist the conclusion that such belief is based, not upon her recollection of the fact, but upon conversations had with her son Thomas in relation to the subject since the disruption of the family relations. It must be apparent to any one who will read over the testimony in this case that his influence over his mother is a dominating one, and that her mental condition is such that it would be an easy matter for him to persuade her of the truth of anything which he desired her to believe. I cannot resist the conclusion that he has, for his own purposes, instilled into her mind the idea that her gift to her two granddaughters was not intended by her to take effect until her death, and that she never delivered the bill of sale to them, although the fact is otherwise.
A careful consideration of all the evidence in the case has left no doubt in my mind ofthe fact that the bill of sale was executed by the complainant, as a deed of gift, by which she intended to transfer to her two granddaughters the absolute ownership of the property embraced in it; that it was delivered by her to them almost immediately upon its execution; and that it operated to vest in them the title to the property which it purports to convey. In conformity with the views which I have expressed, I will advise a decree dismissing the complainant's bill, with costs.