132 Va. 251 | Va. | 1922
delivered the opinion of the court.
The appellant seeks to justify his conduct by claiming that there was a, mutual mistake in the deed, that it did not properly express the contract, that it had been obtained by deceit and fraud, and by the abuse of his trust and confidence in her, alleging that she occupied a fiduciary relation to him, and that the consideration had failed.
The principles of law governing courts of equity in such cases have been frequently stated, and all of the legal propositions maintained by the learned counsel for the appellant are fully supported by reason and authority; but we find
Stated briefly, the pertinent facts are, that the appellant, who was a. childless widower, was so attracted by the attentions of the appellee, first to his deceased wife, with whom she had been friendly for two years, and afterwards to him in his bereavement, decided that it would be most desirable to have her make a home for him. With this idea in mind, he voluntarily suggested to her that he make his will in her favor, and he accordingly executed and showed her a copy of his will making her sole beneficiary, he being at the time the owner not only of the lot here referred to, but of other real and personal estate in the city of Lynch-burg, as well as his stock of goods as a retail merchant. She was greatly pleased at this prospect of bettering her fortunes, and favorably entertained the suggestion. Shortly after that, she went to visit her father and brothers in North Carolina, and when she returned she suggested that the will be put in á different form, and he readily re-executed it, making her the sole beneficiary, with the added provision that in case she should die before he did, his entire estate should go to her only daughter. They were then living in separate houses, but the plan was that she was to own and move into his home, treat him as a father and care for him there; that he would eat at her table, but that the expense of maintaining the family would be equitably shared. Thereafter, she told him that she had been advised that, as he would have the right to revoke his will, she would
Now, the clause in the deed of which he complains reads:.
His claim that the consideration has failed is unsupported by the testimony fairly considered. He continued to eat at her table until October, 1918, although this suit was instituted in January of that year, and then ceased to do so without giving her any reason therefor. He continues to occupy his room in the house. His own conduct has been such as to make it impossible for her to carry out in good faith their mutual agreement that she should make a home for him. The objectionable clause of the deed under which the appellant has justified his conduct is not before the court for construction. Equitable considerations,
Amended and affirmed.