Cain v. Warford

33 Md. 23 | Md. | 1870

Brent, J.,

delivered the opinion of the Court.

There are three questions presented upon this appeal — the capacity of Joseph Cain to enter into a contract, the validity of the assignment made by him of his interest in the estate of Rachel Colvin, and the construction of the paper designated in the record as Exhibit B.

Upon these several questions, we think the law and facts are properly stated in the opinion of the Judge below.

The.weight of evidence is very clearly in favor of the mental capacity of Joseph Cain to contract. That he was weak and feeble in mind, there is no doubt, but he is represented as attending to the ordinary affairs of life, making his own contracts in the community where he lives, and providing, in an humble manner it is true, for the support of a wife and children. In the absence of any proof of fraud or deception practised upon him. in consequence of his weak mind, we cannot conclude that a contract with him is void because of a want of mental capacity to make it. In the assignment of his interest to Warford in 1852, the only circumstance which was relied upon to prove that undue advantage had been taken of his weakness, was the inadequacy of the consideration paid him. If grossly inadequate, it anight lead to such a conclusion. But taking into consideration all the surrounding circumstances. at the time the sale was made, we do not think the argument of the appellants’ counsel upon this point is tenable. Rachel Colvin was then living, and although she had been declared a lunatic, the fact was disclosed in proceedings, growing out of her lunacy, for the appointment of a trustee and committee to take charge of her property and person; that she had made two wills, disposing of her property, in each one of them, to the exclusion of Joseph Cain. Not only was there a contingency that one of these wills might be established, but the contingency also existed that Joseph Cain might die before her, in which event his children, being grand-nephews, would receive nothing, even if she died intestate, or she might recover her sanity and make a valid will still excluding Kim and his children. Under all the uncertainties of his interest (if ho was to have any) in the estate of Raohel Colvin, we cannot conclude that the price paid for it by Warford was so small as to render the sale fraudulent and void.

When "Warford made the purchase, hb did not occupy such a fiduciary or confidential relation to Joseph Cain as to bring the transaction within the stringent rules of law regarding purchases by an agent from his principal, or attorney from his client, or trustee from his cestui que trust. By Exhibits A and B, which are to be construed together as forming one transaction between the parties, Warford was appointed special attorney to take such steps as might be necessary to declare Rachel Colvin a lunatic, and after her death he was empowered to collect such shares of her estate as the parties might be entitled to, paying over to them, after deducting expenses, one-half, and retaining the other half for himself. At the time of the purchase from Joseph Cain, the proceedings in lunacy were complete, and as Rachel Colvin was still living, no duties or powers had devolved upon Warford under the second part of the agreement or power of attorney. IJe cannot, therefore, be considered as occupying, at the time of the sale alluded to, any such fiduciary or confidential relations in the matter of the interest purchased by him, as to east upon him the burden of proving that the transaction was free from suspicion, until at least a prima facie case of improper conduct on his part is made out by the complainants.

The next question is, whether, upon the construction of the paper referred to as Exhibit B, Warford is entitled to deduct from the gross shares of the heirs, the amount agreed by him to be paid to Mr. Dulany, for his services as an attorney in the ejectment suit, in which there was a recovery of the real estate left by Rachel Colvin. By the terms of this paper, “ whatever expenses may be necessary for the recovery of said share,” were to be deducted. What is to be considered as constituting expenses, will depend upon the particular circumstances of the case. In Brady vs. Dilly & Greenwade, 27 Md., 582, the proper and reasonable fees of an attorney were held to be embraced in the term “expenses,” it appearing that his services were indispensable to the trustee in the proper discharge of his trust. In this case, the counsel for the complainants, by their agreement in the record, do not contest the validity of the contract made by Elisha Warford with Mr. Dulany to pay him for his services, as an attorney, one-half of the amount recovered, but it is insisted that it is not to be deducted as a part of the expenses. Before the institution of the ejectment suit, the will of Rachel Colvin, upon issues from the Orphans’ Court, had been declared valid after a lengthy and no doubt expensive trial. These costs, and the necessary employment of counsel, as nothing in that suit was recovered by the heirs, had to be borne by Elisha Warford according to the terms of his agreement. Yet, notwithstanding the will had been declared valid as to personalty, and was prima facie valid as to realty, he instituted the ejectment suit in behalf of the heirs who had appointed him their special attorney, and employed Mr. Dulany to conduct it for a contingent fee. This suit resulted successfully, and Warford now claims that the amount agreed to be paid to Mr. Dulany should be considered, in his settlement with the heirs, as a part of the “expenses necessary for the recovery of their shares.” We think the circumstances of this case fully justify the conclusion, that it should be so considered. That the fee of Mr. Dulany was reasonable, has not been denied or controverted in the argument. To deduct it from the amount coming to Elisha Warford, under the agreement he entered into with the heirs, would be inequitable, as he would then not only receive nothing for the labor and services which he had given to this long and expensive litigation, but would be .left burdened with the costs and expenses he had incurred in the first trial.

We do not understand that the compromise with Richard Colvin is contested. The amount, therefore, in the hands of Elisha Warford for distribution is what he received under that compromise. The distribution of it is properly directed by the decree of the Court below, which we shall affirm.

(Decided 28th June, 1870 )

Decree affirmed and cause remanded

for further proceedings.