84 W. Va. 532 | W. Va. | 1919
Lead Opinion
The decree complained of dismisses, on final hearing, a bill filed for enforcement an alleged express executed trust in real estate, founded upon a valuable consideration.
The relationship of the parties is unquestioned. If there is such a trust as is set up and claimed in the bill, the plaintiffs are entitled to the benefit thereof. They are the heirs at law of M. H. Lacey who departed this life intestate prior to the year 1865, and, at the date of his death, owned a tract of land in Loudoun County, Virginia, containing 160 acres. On his death, the title to this land vested by descent in his two children, Mollie. K. McCreery who died in 1887, leaving several children, and her brother, Andrew J. Lacey, who
The bill proceeds upon the theory of a substitution of certain real estate at or near Princeton, in Mercer County, for One-third of the Loudoun County land to the rents and profits of which the widow was entitled for the period of her natural life. By a deed dated, January 11, 1875, Andrew J. Lacey, Mrs. MeCreery and her husband, and Mrs. Bee and her husband conveyed the Loudoun County tract of. land to John Ritieor for a cash consideration of $1,600.00. Of this sum, two-thirds belonged to the heirs absolutely, and they owned the other third, subject to the right of the widow to have the interest on it for and during her natural life. The bill charges that this one-third, less its pro rata share of the expenses of sale, was invested by Mrs. Bee in a tract of 130 acres of land, situated at or near Princeton, in Mercer County, and conveyed to her and her .husband by a deed! dated, March 3, 1875, and executed by William A. Wiley and' Rhoda V. Wiley, his wife.' The deed conveying the Loudoun County tract of land was admitted to record, March 8, 1875, and the one conveying the Mercer County land, ' March 10, 1875. The former was acknowledged on the day of its date and the latter on the day after that of' its date. After an unavailing effort to set aside the will of Mary L. Bee and after the death of the late Senator John W.
The principal grounds of defense were, (1), non-execution by Mary L. Bee of the paper relied upon as a declaration of trust; (2), lack of actual investment of the said sum of $523.00 in the Mercer County land; and (3), legal inability ■or incapacity of the alleged declarant to carry the trust into execution, her right and title iii the land having been irrevocably fixed, it is claimed, by the deed from Wiley and wife before the date of the declaration of trust. On the trial, the court below found for the plaintiffs on the first issue thus tendered and for the defendants upon the second. This result rendered it unnecessary, in the opinion of the court, to enter upon any inquiry as to the soundness of the third position taken by the defendant. A contention of the plaintiff is that the instrument relied upon creates an executed trust, since a court of equity regards what a party has agreed to do as having been done.
The objection interposed to the evidence of some of the .plaintiffs as to the hand-writing of the signature to the de
The witnesses now under consideration, parties plaintiff, derived their knowledge of the hand-writing of Mrs. Bee from letters written by her to their mother, in their early childhood, preserved by their mother until her death and by them afterwards, for sentimental reasons, and frequently read and perused. These letters were not communications between them and Mrs. Bee, and they make no claim to any other source of knowledge of her hand-writing.
Their inspection of these letters also qualified them to express opinions as to the genuineness of the signature in question. There could scarcely be a better index to the genuineness of the letters than their preservation as heirlooms, tender rememberances or sacred relics, for more than forty years. Besides, it is clearly revealed by their contents — messages of solicitude, advice and love from mother to daughter. What is better calculated to make an impression on the minds of grandchildren) than the written messages of their living grandmother to their dead mother? An administrator, having examined the papers of his intestate, may testify to his signature. Sharp v. Sharp, 2 Leigh 249; Tucker v. Kellogg, 8 Utah 11. A clerk through whose hands the, correspondence of a deceased person with his employer has passed, may
Disqualification for lack of knowledge is charged against S. F. Cleghon and E. M.' Senter, the former having had business transactions with Mrs. Bee in 1886, 7 and 8, and the latter having received two letters from her in 1890 or 1891. On the question of admissibility, the extent of the knowledge of the witness is not controlling. However limited it may be, he is entitled to express his opinion. Meagemess of knowledge or limitation of opportunity goes only to the weight of the evidence. Flowers v. Fletcher, 40 W. Va. 103; Pepper v. Barnett, 22 Gratt. 405; Cody v. Conly, 27 Gratt. 313; Rogers v. Ritter, 12 Wall. 322; 25 Am. & Eng. Ency. L. 259, 262.
The clerk of the county court of Mercer County, after having produced and filed five deeds dated in the years 1882, 1883, 1892 and 1893 and purporting to have been executed by Mary L. Bee, was permitted to testify, from his comparison of the signature in question with those found on the deeds, that said signature was, in Ms opinion, genuine. He did not claim to know the signature of Mrs. Bee, nor did it appear that he had had any extensive experience in any business requiring particular attention to signatures. Ten witnesses holding positions in banks, most, if not all, of whom were casMers, though admitting themselves not to be experts, were permitted to give their opinions, based upon comparison, that the signature was genuine. Their business involved and required close attention to signatures, but they did not deem themselves to be experts. Our statute permitting comparison of writings, sec. 21a, ch. 130, Code, does not in term's require witnesses testifying from comparison to be experts. It provides that genuine writings may be used with or without the testimony of witnesses, for the purpose of comparison. In some jurisdictions, it is held under similar statutes, that only experts can testify from comparison. Non-experts are
The objection that the deeds used as standards of comparison are not sufficiently authenticated is not well taken. They are solemn instruments carefully prepared and executed and taken from the files of a public office in which they were lodged as mumiments of title, some of them more than thirty years before this controversy arose and when Mrs. Bee still possessed the health and strength incident to middle age. Similar standards were admitted for comparison in Luco v. United States, 23 How. (U. S.) 515, 541. A deed more than thirty years old and recorded is presumed to be genuine. Greer v. Lumber & Mining Co., 134 Mo, 85; Webb v. Bitter, 60 W. Va. 193, 233.
The evidence thus produced by the plaintiffs, tending to
The record discloses no direct or positive evidence of actual investment of the money received by Mrs. Bee from her first husband’s estate, in the Mercer County land. And the alleged declaration of trust says, by implication, that she did not pay that money for the land at or before the conveyance of one-half thereof to her. The two land transactions were completed in March, 1875, and the paper declaring her intention to invest trust money in it and make it a trust subject was not executed until May 5, 1875, almost two months ■ ■later. That declaration was prospective in its terms. Her language was, “I am going to invest in a tract of land lately bought” etc. This implies that she had not then invested it, and says the land had been bought. The paper adds, agreeably to the fact, that it had been conveyed to herself and her husband. The title had already vested in her without any qualification or limitation of any kind, and, according to competent evidence, the cash payment of $730.00 had been made by the husband alone, in live stock, and the deferred payments amounting to $470.00 had not been paid as late as 1878 or 1879. It may be that the two land transactions were intended to be one and to effect a substitution of the Mercer County land for the other; but this is indicated only by some of the circumstances, the ownership of the Loudoun County land, Mrs. Bee’s right and duty and the relation of the two transactions in point of time. On the other hand, the money received from the estate does not seem actually to have been invested. It was not equal in amount to half of the purchase money of the land, and, two months after the land had been conveyed and the cash payment made, Mrs. Bee declared it to be her intention to-invest the money in that land. If resort could be had to surmise and conjecture, it might be said Dr. Bee made her a present of a half interest in the tract, or that he made the cash payment in live stock ,expecting her to reimburse him
Besides, there is an insuperable legal obstruction to the view that she could, by this declaration, impress a trust upon land the title to which had previously vested in her. She could neither convey nor incumber such land otherwise than by an instrument executed in the manner prescribed by law. She could only do so by means of a deed or contract signed, sealed and acknowledged by herself and her .husband. Graham v. Long, 65 Pa. St. 383. This was not ■a separate estate which she might have bound in equity by her contract. It was her absolute property, which she ■could not charge either at law or in equity except by the joint action of herself and her husband and in the prescribed manner. Pickens v. Knisely, 36 W. Va., 794.
The argument submitted under - the invocation of the maxim that equity regards what ought to be done or what parties have agreed to do, as having been done, accords a scope to that doctrine much wider than any text writer or reported decision indicates or warrants. If Mrs. Bee had •actually bought the land in question with the trust fund she had in her hands, declaring her intention to take and hold it in trust, but had in fact taken an absolute conveyance to herself, equity would treat her as if she had done what she had declared it to be her intention to do. It would make her a trustee and compel her to perform the trust in •disregard of the terms of the deed. But her failure to invest the money in the land left her only a trustee of the money. She could become a trustee of the land only by ■■actual investment of the money in it. Mr. Pomeroy states the doctrine clearly in his work on Equity Jurisprudence, ■4th Ed. sec. 587, as follows: “Whenever a trustee or other person standing in fiduciary relations, acting apparently within the scope of his powers, has trust funds in his hands, which he ought, in' pursuance of his fiduciary duty, to employ in the purchase of property for the purposes of the trust, •and he does purchase property with such funds, but takes ‘the title thereto in his own name, without any declaration
The effort to make a distinction here on the ground of the character of the declaration fails, because it was one of unexecuted intention only. If the instrument had actually created a trust the rights of the parties would have been governed strictly by the terms of the declaration. It would have defined the trust. But it admits no more than a trust in the money received. It shows on its face the title to the land had vested in Mrs. Bee while she still held the money. No trust in the land had been created and it was legally impossible for her to impress a trust upon it, without prescribed cooperation of her husband. The argument erroneously assumes the' existence of an express trust in the land.
Our concurrence in the view of the trial court that actual investment of the money in the land is essential to the establishment of the trust claimed and that there is a total lack of proof of such investment, renders it unnecessary to enter upon an inquiry as to the admissibility of evidence of declarations of Mrs. Bee, admitted as matter of explanation of her possession and as tending to prove she had spent all of the money she received from her husband’s estate, in the education of her son and payment of his expenses. The defendants prevail without the aid of that testimony. It is manifestly not admissible merely to prove payment of the money to the heirs.
Under the prayer of the bill for general relief, there might have been a decree for the money Mrs. Bee received as shown by her receipt and declaration of trust, but without interest for any time prior to her death. But the plaintiffs did not ask for such a decree and their right to the fund was in no way litigated. If demanded, it might be paid, or defenses of some kind might be set up against such demand.
Failure of the trial court to award such relief or afford the plaintiffs an opportunity to claim it constitutes an error for which the decree, in so far only as it dismisses the bill, must-be reversed. Costs will be awarded to the appellants as the parties substantially prevailing.
Affirmed in part. Reversed in part. Remmded.
Dissenting Opinion
(dissenting in part) :
I concur in all of the foregoing opinion except so much of it as remands the cause for entry of a decree by the lower court. The case is one which, in my opinion, calls for entry by this court of such decree as the lower court should have entered. Having reached the conclusion that, plaintiffs had failed to establish a trust in the land in the hands of Mrs. Bee for their use, and seeing that they had proven a clear case entitling them to a decree against her separate estate for the money, the court should have given them such a decree, with interest thereon from the time of .her death, and made it a lien upon her lands in the hands of her devisees.' Her interest in the Princeton land, having been conveyed to her since the creation by statute of separate estates of married women, was her separate estate and is liable, in equity, for her just obligations. Such decree is consistent with the special relief prayed for and is such relief as ought to be accorded under the prayer for general relief, and I would enter such decree here.
