93 Va. 78 | Va. | 1896
Lead Opinion
delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of Mecklenburg county, and the case presented may be briefly stated as follows:
In 1876 E. H. Riggan, a childless widower, married Harriet B. Sims, a widow with two children. He owned a farm in Mecklenburg county, and was well to do. She owned a valuable farm in Brunswick county, left to hér for life by her former husband, R. S. Sims, and considerable personal property, choses in action, etc., some given to her for life, and some given absolutely. They lived on the farm of the wife until during the year 1877, when Dr. Riggan wished to return to his farm in Mecklenburg, which had been rented •out in the meantime; and they agreed to sell the wife’s interest in the Brunswick farm to her son, Dr. R. H. Sims, and a sale was accordingly made as will be fully set out later on. Dr. Riggan died, or was killed, in December, 1890, leaving surviving him his widow, and a brother, James V. Riggan, of Mississippi, the next of kin and only heir at law of the decedent. In May, 1891, the widow, Harriet B. Riggan, filed her bill of complaint in the Circuit Court of Mecklenburg county against W. H. Jones, who had qualified as administrator of E. H. Riggan, deceased, and A. H. Bra
The cause was referred to a Master Commission to take- and state the accounts usual in such cases, including an-account of debts outstanding and owing by the decedent, E. H. Riggan; and the Commissioner at the November Term, 1891,. as to the claims asserted by the complainant, Harriet B. Riggan, reported that she was entitled to receive from the-estate of the intestate the sum of $2,000.00, the amount of the bond of R. H. Sims for the interest of the complainant in the real estate of her former husband, sold to Sims in April,. 1876, and collected by Dr. Riggan, with interest on this sum from the death of Dr. Riggan, December 25, 1890, till paid.. Also certain debts due Mrs. Riggan before her marriage,, which need not be particularly set out here. To this report the complainant excepted, first, because the Commissioner did not report the whole debt of $3,000.00 and interest as
The defendants excepted also, but their exceptions need not be set out, as the only questions raised by them to be-considered on this appeal are as to the correctness of the report allowing to Mrs. H. B. Eiggan the claim of $2,000.00, with interest, and another debt of $270.28.
Upon the hearing of the cause on the report of the Commissioner, and the exceptions of complainant and defendant thereto, the Circuit Court overruled all the exceptions that were in conflict with the opinion of the court, as set out in its decree of the 8th day of June, 1892, and decreed that the choses in action owned by H. B. Eiggan at the time of her marriage with E. H. Eiggan but not collected by him till after the 4th of April, 1877, (date of married woman’s act) Acts, 1876-7, ch. 329, p. 333, became the separate estate of H. B. Eiggan, and that E. H. Eiggan had no interest therein, and that for any amount he collected thereon after April 4, 1877, he became the debtor of H. B. Eiggan, and the statute of limitations pleaded by E. H. Eiggan’s admr. against the recovery of the amount of said collection, began to run from the time it is proved that H. B. Eiggan had knowledge of such collection, and, it manifestly appearing that H. B. Eiggan knew of the collection by her husband of $55.55 of the Deldridge debt at the time of the collection, May 22, 1884, and of the collection by him of $19.00 of Louisa Butler, December 23, 1884, the recovery of both these amounts of E. H. Eiggan’s estate is barred.
The decree then proceeded as follows: “The court is further of opinion that, in respect to the real estate owned by H. B. Eiggan at the time of her marriage with E. H. Eiggan, and which he took possession of, she owned an estate
From this decree an appeal was allowed to this court on the petition of R. H. Sims, administrator of Mrs. H. B. Riggan, who had died.
It may be observed in the outset that this decree is plainly erroneous in decreeing to the estate of Mrs. H. B. Riggan the sum of $275.00, being an amount equal to one year’s rent of the real estate sold to R. H. Sims, for, as will be seen later on, if Mrs. H. B. Riggan united in the deed conveying her
The contention of appellant is that the decree is erroneous in not allowing the administrator of Mrs. Riggan the $2,000.00 paid by R. H. Sims to Dr. Riggan, the purchase price of her land conveyed to Sims in 1876, with interest on this amount from January 1, 1878, till paid; and in holding that two small claims of $55.55 and $19.00, reported in Mrs. Riggan’s favor by the commissioner, are barred by the statute of limitations.
As to the claim of Mrs. Riggan to the purchase money for the land conveyed to R. H. Sims, the evidence is as follows: First. The deed of Dr. E. H. Riggan and his wife of April 26, 1877, conveying to Sims “ all of their right, title, and interest to and in the real estate, together with all the fixtures and appurtenances thereunto belonging, being the same devised by the will of the late Richard S. Sims to° Harriet B. Sims, his wife, as her dower, or life estate.’’ Then R. H. Sims testifies as follows: Q. 10. “Please state all you know as to any agreement made between your mother and Dr. Riggan as to how this property, given to her by the will of her first husband, should be held after their marriage, and how the proceeds of that sold should be held and disposed of?” A. “It should be held as her separate estate, and disposed of by her will if she thought necessary, and at the time of Dr. Riggan’s death she had a will written.” Q. 11. “ Did you ever hear Dr. Riggan say that this was the agreement, or did you ever hear your mother say so in Dr. Riggan’s presence?” A. “Yes,'sir, I have heard both speak of it.” Q. 12. “Who bought your mother’s life interest in the real estate left her by the will of her first husband ? ” A. 411.” Q. 13. “ When did you buy it, at what price, and upon what terms ? ” A. “ 26th of April, 1877, by bond
C. W. King testifies in relation to this matter that he heard »Dr. Riggan speaking of holding some money for his wife, or having some belonging to her; that Dr. Riggan said he had sold her interest in her land to her son who paid for it; that he (Dr. Riggan) held the money for his wife, and that he spoke of the amount as being about $3,000.00. Dr. Riggan frequently spoke of this money that he held for his, wife, and, as witness thought, he always spoke of it as about ■ $3,000.00.
John G. Sims also testified that he heard Dr. Riggan, two or three times, or oftener, speak of his holding money belonging to his wife, saying that he had $2,000.00 or $3,000.00 of his wife’s money; that he loaned witness a part of it with the consent of Mrs. Riggan given in witness’s presence. This witness then in answer to the question, “ Was not Dr.. Riggan a remarkably particular man in the management of his own pecuniary matters, and ,in. keeping them clearly distinct and separate from such matters as he man
It appears from the evidence that at about the time Dr. Riggan had these conversations with witnesses John O. Sims and C. W. King he had in his hands either from the bond collected of Dr. Sims, and the interest thereon, or that and other sums collected for account of his wife, or of debts due to his wife, about $3,000.00.
It is admitted that a writing, called in this record “ Notes for a will,” and found among Dr. Riggan’s papers at his death, is wholly in his handwriting, and in that writing there appears this clause: “My wife to have $3,000.00 returned to her, the amount of her estate.”
It is also admitted in the record that a paper, which is a draft of a will of "Mrs. Riggan, found among her papers and filed before the Commissioner, is wholly in the handwriting of Dr. Riggan. And in this writing the money in the hands of Dr. Riggan, belonging to Mrs. Riggan, is disposed of. Only a part of the bond executed by Dr. Sims for the purchase money for- Mrs. Riggan’s land, sold to him as before stated, is produced. Dr. Sims, the witness who produced it, explained how the other portion got lost; and on the portion of the bond produced the following receipt appears: “Received December 6, 1881, of R. H. Sims $1,286.19, in full payment of the within bond, said bond being in full payment for the real estate of my wife, H. B. Riggan, her dower interest in her first husband’s estate.
(Signed) E. H. Riggan.”
There were other receipts produced showing payments on
Upon this state of facts the two questions, to be considered are: First. Was there any agreement between Dr. E. H. Riggan and his wife H. B. Riggan, during the coverture, that she should have the proceeds of the sale of the property conveyed by them to Dr. R. H. Sims, and for which the bond for $2,000.00 was given; and,
Second. If there was such an agreement (there being no creditors of the husband affected thereby) can it be enforced in a court of equity?
Counsel for appellee undertake to throw doubt on the testimony of Dr. Sims,, because he was testifying as a witness for his mother, who is since dead, and consequently as an interested witness. Dr. Sims was a competent witness when he gave his testimony in this case, and the argument of counsel, however insinuating or ingenious, cannot serve to efface the evidence of a competent and credible witness. This can only be done by testimony showing the contrary facts to those testified to by the witness, or from circumstances from which they may be inferred, or that he is unworthy of belief. No such testimony is to be found in this record, and therefore Dr. Sims’ testimony is uncontradicted, and he is unimpeached. Indeed, his testimony is corroborated and sustained by the only other witnesses examined in the case, Chas. W. King, and John C. Sims, neither of whom, it can be claimed, has the slightest interest in the subject matter. The witness is further corroborated by the will and the draft of the will written by Dr. Riggan, as we have before seen, as well as by the draft of a will for Mrs. Riggan, in which the money in question was mentioned and disposed of, wholly in the handwriting of Dr. Riggan. We have examined the original
Appellees' counsel admit that if there was any proof that Mrs. Eiggan refused to execute the deed to Dr. Sims, except upon condition that the bond should be payable to her, she might be entitled to the money, and they seem also to admit that if the bond had been found among Dr. Eiggan’s papers after his death, and uncollected, it would have been treated as a perfected gift, and a complete segregation of that particular property from the residue of his estate.
There is certainly no proof that Mrs. Eiggan refused to
In Richards v. Delbridge, L. R. 18 Eq., 11, it is said by Jessell, M. R.: “The legal owner of the property may, by one or other of the modes recognized as amounting to a valid declaration of trust, constitute himself a trustee, and, without any actual transfer of the legal title, may so deal with the property as to deprive himself of the beneficial ownership, and declare that he will hold from that time forward in trust for the other person. It is true he need not use the words, ‘ I declare myself a trustee,’ but he must do something which is equivalent to it, and use expressions which have that meaning.” And in the same case it is said that the words “ I undertake to hold this bond for you,” would undoubtedly have amounted to a declaration of trust. See also Williams v. Yager, 91 Ky. 282; 34 Amer St. R. 184 and notes, pp. 191, 193, 195, 196¿ 201, 202, and cases cited.
The receipt of Dr. Riggan for the last payment on this bond not only contains an expression meaning that he received the money for the benefit of his wife, i. e. in trust for her, but the bond itself, also written by him, contained a more explicit expression that could have no other meaning than that he declared himself a trustee to hold the bond for his wife’s benefit, and the money, when collected, in trust for her. To what money could Dr. Riggan have had
A trust created by the husband in favor of the wife has ever and over again been sustained as founded on a meritorious consideration, which the law always implies in the relations existing between husband and wife, and parent :and child. This case, however, does not stand alone upon a meritorious consideration, but upon a valuable consideration. It is true Dr. Riggan had an interest in the land, i. •e., the right to the rents, issues, and profits during his life, provided he lived as long as his wife did. It was not, however, the ordinary interest a husband has in his wife’s land. He was not tenant by the curtesy, as it could not become initiate or consummate. His interest would have continued only during their joint lives, ceasing at the death of either, while her interest would continue so long as she lived, even though her husband might have died years before she did. Yet by the decree appealed from his interest is made to appear as worth $1,725 and all accumulated interests, while hers was fixed at only $275. Whatever might have been his interest he had the right to dispose of it as he did. He was not indebted. No question of creditors arises in the case. It was not the husband’s land in which the wife was relinquishing dower, but the wife’s land in which he only had the rights to the rents, issues, and profits arising during their joint lives.
If a trust is once effectually created by parol it cannot subsequently be revoked or altered by the party creating it, for it is governed by the same rules that govern trusts by
This suit is brought by the cestui que trust to recover of the estate of the trustee, Dr. Eiggan, the money received and held by him for her benefit, as authorized by the instrument creating the trust, and it being a peculiar province of courts of equity to enforce trusts, the claim of Mrs. Eiggan, the cestui que trust, asserted in this suit against the estate of Dr. Eiggan, the trustee, for the money received by him as the proceeds of the sale of her land to Dr. Sims can and ought to be enforced. Gorden v. Tucker, 6 Me. 1; Jones v. Obenchain 10 Gratt. 259; Sayers v. Wall, 26 Gratt. 354; Fox v. Jones, 1 West Va. 205, 2 Kent’s Com. 174; Tullis v. Fridley, 9 Minn. 79; Stanwood v. Stanwood, 17 Mass. 57; McCampbell v. McCampbell, 2 Lea 661.
We do not see that sections 2413, 2414, and 2840, so much relied on by counsel for appellees, have any application to' this case. The first refers entirely to conveyances of estates in realty; the second to gifts of goods and chattels, and if it referred to choses in actions (as to which we express no opinion) it would still, from what has already been said, have no application; and the third, (Section 2840) is wholly inapplicable, as there is no allegation or proof in the record that the agreement, as to how the proceeds of the sale of the land to Dr. Sims would be held, was “ upon consideration of marriage,” so as to bring it within the provision of this section. *
As to the two sums, of $55.00 and $19.00, collected by Dr. Eiggan on demands due his wife after the passage of the “Married Woman’s Act” of April 7, 1877; while these sums of money were under this Act the separate estate of
Nor is there error in the ruling of the court, of which appellees complain, in holding Dr. Riggan’s administrator liable to Mrs. Riggan’s administrator for $132.66, with interest on $70, and $1.50, parts thereof, being the total of two sums collected by Dr. Riggan on debts due his wife after the passage of the Act of April 7, 1877, there being no proof that Mrs. Riggan knew of the collection of these sums.
It is also contended by appellees that it was error to decree to Mrs. Riggan’s administrator the value of the property which was exempted to her as the widow of Dr. Riggan under section 3653, and sold by his administrator. This was not error, as the plain language of section 3653 exempts to the widow in every case, whether the estate be solvent or not, the articles enumerated in section 3650.
For the foregoing reasons we are of opinion that the decree of the Circuit Court is right in aíl respects, except in so far as it only decrees in favor of Harriet B. Riggan’s administrator against the estate of Dr. E. H. Riggan, deceased, for the sum of $275, with interest thereon, from December 25, 1891, when the decree should have been for the principal sum of $2,000, with interest from January 1, 1878, till paid, and in this respect the decree will be reversed and annulled, and the cause remanded to the Circuit Court for such further proceedings herein as may appear propel* and in accordance with this opinion.
Reversed.
Dissenting Opinion
dissenting said :
I am unable to concur in the opinion just delivered. A trust, such as it is sought to establish in this case, ought to
I do not think that a verbal declaration that a husband will hold as trustee for his wife a certain portion of his own estate, where the declaration rests upon no consideration whatever, can be enforced in a court of equity. The decision, in my judgment, is a most dangerous expansion of the principles and authorities upon which it professes to rest.
