McCartney v. Fletcher
10 App. D.C. 572
D.C. Cir.
1897
Check Treatment
Mr. Chief Justice Alvey

delivered the opinion of the Court:

We are of opinion that the demurrers ought to have been sustained to the entire bill, and the bill have been dismissed on the demurrers; and this for several reasons.

1. In the first place, the allegations and charges of the bill are entirely too general, vague and indefinite, and extend to matters and things not properly the subject of enforced discovery. The bill is a drag-net, and is a good example of what has been called a vexatious fishing bill, which the court has always regarded with disfavor. By its generality of allegation it embraces and is applicable to everything, but does not refer to things specifically and with certainty; and hence the great difficulty of fairly answering such a bill. There must be reasonable and convenient certainty both as to the objects and subjects of the discovery sought. This case is not unlike, in many respects, the case of Ryves v. Ryves, 3 Ves. 343, except that was a case of the heir at law against the surviving widow and one of the children of the deceased husband for discovery and account. In that case the bill stated generally that under *594some deeds in the custody or control of the defendants the plaintiff was entitled to an interest in some estates in the possession of the defendants and who had been in the receipt of the rents and profits thereof, and that the defendants set up and made unfounded claim to such estates. The bill was objected to by way of demurrer for the want of certainty, and the demurrer to the whole bill was allowed by the court. It is a well-settled principle, that, to entitle a complainant to discovery, the facts of which disclosure is sought must be of a certain and specific character, and that the right of a complainant in equity to the benefit of a defendant’s oath is limited to such material facts as relate to the plaintiff’s case, and does not extend to a discovery of the manner in which, or of the evidence by means of which) the defendant’s case is to be established, or to any discovery of the defendant’s evidence. Wigram on Discover}?, p. 90. This principle is wholly disregarded in the required discovery of the defendant, Susan Fletcher. It will not do to state generally that the defendant is in possession of facts that will throw light upon the case instituted for inquiry-The plaintiff must state in respect to what particular facts he desires discovery, and show how he is interested in those facts, and their materiality and pertinency to the case for which the discovery is required. Hare, Discovery, 8; Story Eq. Pl, Secs. 565-566. Otherwise, parties would be subject to the most annoying inquisitorial investigations into their private affairs. It is a settled principle, therefore, “ that a plaintiff is only entitled to a discovery of what appertains' to, or is necessary for, his own title; and he has no right to pry into the title of the defendant. Hence, upon every bill of discovery the defendant has a right to resist, by demurrer, any inquiries which call upon him to disclose the nature and character of his own title to the subject-matter of the controversy.” Story Eq. Pl, Sec. 572, and the authorities there cited; also, Hare on Discovery, Ch. 4, pp. 183-194. It is only necessary to examine the terms and general scope *595of the inquiry for discovery required of the defendant Susan to see that the limitation of the right in such requirement is greatly transcended, and goes much beyond what the plaintiff is justified in requiring of the defendant.

2. In the next place, under the allegations and prayers of the bill, the defendant Susan is required to set forth a particular statement of every item of property that she received •either from her husband or any other person ; or that came into her possession or control, and all the gains and profits thereof, during her entire married life; and to account for the same, or such parts thereof (except certain insurance money) as she had in her possession, or under her control at the death of her husband, though she may have received such property at any time within the period of thirty years preceding his death. This manifestly is not only too vague and indefinite, but the great lapse of time involved in the proposed inquiry and required discovery and account, presents upon the face of the bill objections that may be taken advantage of by demurrer, and a general demurrer reaches such objection to the bill. Foster v. Hodgson, 19 Ves. 180, 185; Home v. Peck, 6 Sim. 51, and cases cited.

3. Then, the defendant Susan is required to state and set forth fully and particulariy all the special circumstances of and attending the receipt of any and all property received by her from her husband during the period of her married life; thus making it necessary for her to disclose and set forth the confidential communications between herself and her husband, in regard to all dealings and property transactions between them. This cannot be required of a wife or widow, under the statute, which declares that a wife shall not be compellable to disclose any communication made to her by her husband during the marriage (Sec. 877, E. S. D. C); and this is but the principle of the common law; and it applies as well after the death as during the lifetime of the husband. Lucas v. Brooks, 18 Wall. 436, 453; Stein v. Bowman, 13 Pet. 210, 222. The death of the husband, as said *596by the Supreme Court, does not weaken the principle, but rather increases than lessens the force of the rule. 1 Greenl. Ev., Secs. 336, 337; 1 Tayl. Ev., Secs. 830, 831, pp. 810-11; Hopkins v. Grimshaw (Supreme Court U. S., January, 1897), 165 U. S. 342. And with respect to such question, of privilege it is perfectly immaterial whether the objection be taken by demurrer or answer; the defendant is equally protected whether the objection be taken in the one way or the other. Attorney General v. Lucas, 2 Hare, 556; Woods v. Woods, 4 Hare, 83.

4. As we have seen, the bill is filed by the administratrix of the deceased William Fletcher, and the right demanded must relate to the personal estate of the decedent alone— the administratrix having nothing to do with the real estate.. The bill upon its face must show that the complainant has-a right to the thing demanded, or such an interest in the subject matter as gives her a right to institute a suit concerning it. If it is not affirmatively shown by the bill that, the party suing has such interest and a right to institute a. suit concerning it, the defendant may demur. And this-want of interest in the subject of suit, or of a title to institute suit, are objections to a bill seeking any kind of relief, or filed for the purpose of discovery merely. Mitf. Eq. Pl. 154, 155 and 156.

Now, as we have already observed, the decedent in his lifetime conveyed and caused to be conveyed, a large portion of his real estate to his wife Susan, and the deeds were all made absolute in terms, without any reference whatever to any reserved rights or trust, though it is now alleged by the administratrix of the deceased that such deeds were all made and intended to be in trust for the decedent and his heirs. But however this may be, while the deeds remain in force, and in the absence of any declaration of trust, either judicial or by writing, under the Statute of Frauds, the title, both legal and equitable, to the lands conveyed, remains in the grantee, Susan Fletcher; and the rents and profits that *597she may have received from the property after the conveyances made to her, during the life of her husband, and with his permission and consent, form no part of the personal ■estate of the deceased, and his administratrix is not entitled to claim them, and is not responsible for them as personal assets of the estate. There are no creditors concerned, or •supposed to have been prejudiced by the conveyances, and the rents, the mere incidents of the estates conveyed, vested in the grantee, the wife, and the personal representative of the deceased had no right or title to them as against the title of the wife. Dorsey v. Smithson, 6 H. & J. 61. There was no right or duty of the mere personal representative ■of the deceased to institute proceedings to vacate the deeds, or to have a trust declared for the benefit of the heirs at law; that they must do for themselves, if there be ground for it.

The same observations apply to the case of the deed made by the decedent to Catharine Laughlin for the farm called @ Sharon.” The administratrix has no right or standing to impeach the validity of the deed, or to have a trust declared thereon. If it be true as alleged that the deed was •only colorable, and not intended to divest the deceased of the beneficial title to the land, that is a subject with which the heirs must deal; but the administratrix has nothing to do with it, except to enforce payment of the unpaid purchase money if the deed shall be allowed to stand. It is an unquestioned principle that a bill must show an interest in the plaintiff in the subject to which the required ■discovery relates, and such an interest as entitles him to -call on the defendant for the discovery. Mitf. Eq. Pl. 187. In respect to the conveyances of the lands to the wife, and ■of the farm called “Sharon” to Catharine Laughlin, the bill •entirely fails to show any such interest in the complainant .as to entitle her, as administratrix, to maintain the bill, •either for relief or discovery.

5. The last ground of demurrer to the bill that need be *598mentioned is that of multifariousness. It is laid down in the works on equity pleading that the court will not permit a plaintiff to demand by one bill, several matters of different natures against several defendants, for this would tend to load each defendant with an unnecessary burthen of costs, by swelling the pleadings with the statement of the several claims against the other defendants with which he-had no connection. A defendant may therefore demur because of the multifariousness of the bill; and such demurrer goes to the whole bill; and it seems to be settled that it is. not necessary to specify the particular parts of the bill which are multifarious. Mitf. Eq. Pl. 208; 1 Dan. Ch. Pl. and Prac. 621; East India Comp. v. Coles, 3 Swanst. 142 n.

In this case the multifariousness consists in the improper-joining of the matter of the conveyance of the farm called “Sharon” to Catharine Laughlin, with the matters charged against Susan Fletcher; and the improper joining of the matters relating to the subscription to or investment in the-stock of the Washington Asphalt Block and Tile Company,, the stock or interest therein standing in the name of Charles. P. Fletcher, with the matters charged against Susan Fletcher and Catharine Laughlin; all of which matters being several and distinct in their natures, they therefore render the-bill multifarious and consequently demurrable.

The several demurrers of the defendants having been overruled by order of the court of the 10th of March, 1894,. the defendants were required to answer the bill; and they accordingly filed separate answers under oath.

The principal answer, that of Susan Fletcher, responds to-the allegations and charges of the bill against her very fully and circumstantially, so far as she professes to have-knowledge o'f the various matters to which the bill refers- and in respect to which discovery is prayed. By her answer, this defendant denies directly, or fully explains, all the material facts as charged in the bill in regard to the-personal estate of the deceased; and she completely denies *599that she had in her possession or under her control at the time of the death of her husband any money, securities, bonds or other personal property of any nature or kind whatsoever, belonging to him or to his estate. She denies that the real estate referred to in the bill, or any part of it, was conveyed to her in trust, and she denies the existence of all such trust, whether express or by implication, and she relies upon the Statute of Frauds as a bar to the claim, made by the complainant in respect to any such trust.

By her answer. Catharine Laughlin denies the allegations of the bill in regard to the conveyance to her of the farm called “Sharon,” as being in trust for the benefit of the grantor, William Fletcher, or that there was no consideration paid or intended to be paid by her for the farm.

The averments made in the answers of the other defendants are not material to be stated, for the further consideration of the case.

The answers were all required to be made under oath and where and as far as they are responsive to the allegations of the bill, they are evidence for the respective defendants, and as evidence they will prevail unless overcome by the testimony of two witnesses, or of one witness and clear corroborating circumstances. 2 Sto. Eq. Jurisp., Sec-1528; Bank U S. v. Beverly, 1 How. 134; Flagg v. Mann, 2 Sumner, 489; Bank of Georgdown v. Geary, 5 Pet. 99.

There has been a very large volume of testimony taken in this case, much of which is irrelevant and entirely without any probative force whatever. That portion of the evidence, which is mainly relied on by the complainant, to charge Susan Fletcher, the widowand mother of the children of deceased, with fraudulently secreting and concealing the personal estate of her late husband, is of the most unreliable character, and such as the court cannot make the basis or foundation of a decree for an account holding the defendant to be guilty of secreting and concealing the property as charged in the bill, and therefore liable. On the allegations *600of the bill, vague and indefinite as they are, and the still more indefinite and uncertain proof, it would be simply impossible to say what property has been concealed and should be accounted for. The evidence relied on is, in large part, merely of a conjectural and inferential character; the complainant, assuming the wife to be, and treating her as agent of her husband, instead of wife merely, and charging her with all the moneys, and receipts of income of whatever nature or kind, of her husband, during the entire period of her married life, and requiring her to acquit herself of such receipts, by showing how the moneys and other property have been disposed of or invested; and, upon failure so to discharge herself, she is sought to be held responsible. There is no principle of law or equity that justifies such proceeding, or that justifies any such inference as that here attempted to be drawn, and made the ground 'of liability of the surviving wife to the estate of the deceased husband. The onus of proof is upon the complainant, and the evidence produced in support of the allegations of the bill, and to charge the surviving wife with secreting and concealing the personal assets of the estate of her deceased husband, is essentially defective, obscure and doubtful, and therefore wholly unsatisfactory; and such evidence is totally insufficient to overcome the evidential force and effect of the sworn answer of the defendant. And therefore there is no sufficient evidence in support of the case of complainant upon which to found a decree. We have carefully examined the entire volume of evidence; and without extending this opinion by a review of the evidence in detail, we deem it sufficient to say, that there is no ground for either relief or discovery shown, and therefore the court below was right in dismissing the bill upon the evidence, regardless of the defects in the bill which were presented by the demurrer. The decree appealed from must therefore be affirmed; and it is so ordered. Decree affirmed.