Walters v. Walters, 26 N.M. 22

26 N.M. 22 | N.M. | 1920

OPINION OP THE COURT.

MECHEM, M. C.,

District Judge. This is an action brought to impress a trust upon real estate. The plaintiffs are the children of Robert O. Walters, deceased, and the defendant is the infant son of Ray Walters, deceased, who was a child of the said Robert O. Walters. Judgment was rendered by the lower court enforcing the trust claimed by plaintiffs. From this judgment the defendant appeals.

The facts as shown by the record are as follows: Robert O. Walters, a widower, and a man of considerable means, on the'3d day of November, 1913, made over his entire estate to his son, Ray Walters. The deeds conveying the real estate and the bill of sale transferring the personal property were without consideration, except the promise of Ray Walters to provide and care for his brothers and sisters, the plaintiffs, of whom three at the time of the bringing of this action were minors. Robert 0. Walters died October 9, 1914.' Ray Walters died July 19, 1917, leaving a will in which he made bequests to all the plaintiffs and left the remainder of his estate to defendant. It does not appear from the record how nearly these bequests to plaintiffs approximate an equal share in the real estate with Ray Walters, but it is apparent from a reading of the will that the defendant, under it, would receive the greater part of the estate of Robert 0. Walters.

[1] The relations between Robert 0. Walters and Ray Walters were those which naturally would arise from complete confidence of the father in the honesty and business ability of the son. Before transferring the property he had intrusted the entire control and management of it to this son, who consulted with his father on business matters, but otherwise seems to have been the dominant party in their relations. He drew checks on his father’s bank,account, bought and sold personal property, and generally carried on the business as if it were his own. Robert 0. Walters for more than two years previous to his death 'had been in feeble health and did not leave his house for more than a year before his death. Ray Walters is portrayed by the testimony to have been an energetic young man of more than ordinary business ability and was his father’s oldest child. At the date of the transfer of the property, he was about 28 years of age. Even before his father’s retirement from active business life, he exercised the powers of an equal partner in the running of the business, and later on, as one of the witnesses expresses it, “took the lead” in the business and would not allow his father to take any share in its management on account of his ill health. In the matter of the transfer of the property, Robert 0. Walters does not seem to have advised with any other person than his son. The deeds were drawn up under the direction of Ray Walters, and there is no evidence of the circumstances under-which they were executed and delivered.

[2] It is a rule of almost general acceptation that, where confidential relations between parent and child are shown to have existed and where a conveyance of property is made by the weaker to the dominant party, a presumption arises that the conveyance was obtained through the undue influence of the dominant party, and the burden is on the person claiming, under such a conveyance, to show that the transaction was boila fide.

See notes to Burton v. Burton, 17 Ann. Cas. 984, and Hawthorne v. Jenkins, Ann. Cas. 1915D, 707, where the cases are collected and reviewed. Also, Mead v. Mead, (Cal. App.) 182 Pac. 761; Arntson v. First National Bank, 167 N. W. 760, L. R. A. 1918F, 1038; Jones, Commentaries on Evidence, § 190.

And particularly should the presumption be indulged in in this case, where the conveyances were without consideration and where their effect was to deprive the other children of Robert O. Walters of their equal share in their father’s estate.

[3] There is no evidence in the case to overturn this presumption, and therefore it must be taken as a proven fact that the deeds were procured through the undue influence of Ray Walters. This being so, equity will impress a constructive trust on the real estate so conveyed.

[4] Prof. Pomeroy says of these trusts:

“In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved of the trust.” 3 Pomeroy’s Equity Jur. (4th Ed.) § 1053.

This is a clear case for the application of the doctrine above stated. Whatever may have been the intention of Ray Walters in taking the conveyances, and from the record or his dealings with hi® brothers and sisters, his declarations that he held the property in trust for them and would see that they were all provided for lead to the belief that he always intended to deal honestly with them; yet, nevertheless, he will be held to have invited the trust and the appellant took the property impressed with this trust.

[5] What we have said in this opinion disposes of all the assignments of error argued by counsel for appellant. There was an item of life insurance money, the disposition of which on the judgment of the lower court was made the subject of an assignment of error by the appellant, but, not having been argued in his brief, will be considered as abandoned. Clark v. Queens Ins. Co., 22 N. Mex. 369, 163 Pac. 371. Appellees confess this assignment of er-ror abandoned by the appellant and insist upon a review of it, but, as they have not filed any . cross-assignments of error, this request will be denied.

Finding no error in the record, the judgment of the lower court must be affirmed, and it is so ordered.

Parker, C. J., and Roberts, J., concur.