104 Wis. 81 | Wis. | 1899
Following in line with the decision of the court below, the view we have taken of this case renders it unnecessary to determine whether, under the testimony, there has been a legal delivery of the deed under which plaintiff claims. Upon that question we express no opinion.
The deed in question was not made pursuant to any agreement or contract of settlement. It was a purely voluntary conveyance, founded upon natural love and affection, and was made without any prior consultation or agreement with the grantee. A family settlement is an agreement made between a father and his son or children, or between brothers, to dispose of property in a different manner from that which would otherwise take place. 12 Am. & Eng. Ency. of Law (2d ed.), 875; Baker v. Pyatt, 108 Ind. 61. It being considered that the transaction in question does not possess the essential elements of a family settlement, it is quite evident that the law regarding such settlements can have no application to this case. It is true, as argued by the appel
Nor can we apply to this case the same doctrine of equity jurisprudence as is applied to the defective execution of powers. Quoting again from 2 Story, Eq. Jur. § 7935: “There may be a clear if not a satisfactory line of distinction drawn between cases of voluntary contracts, covenants, and settlements, where there has been a defective conveyance or exe-' cution thereof, and cases of a defective execution of a power. In the latter cases the donee of the power designs to carry into effect, not merely his own objects and interests but those of other persons, by executing the power in favor of persons who stand as volunteers upon a meritorious consideration, and for whom he is under a natural and moral obligation to provide; and his own defective execution of the power, by mistake or otherwise, not only defeats his own positive intention and moral obligation and duty to execute
It is suggested that, as the deed in question is based upon what is called in the books a “ meritorious consideration,” the right to a reformation ought to be upheld. All the cases I have been able to find in which such a consideration has been upheld as warranting the intervention of a court of equity rest upon the fact of the defective execution of a power, or upon some matter of contract, such as an agreement for a family settlement, or the result of negotiation and agreement. These elements are entirely wanting in this case. The grantee in the deed knew nothing of its execution until after the father’s death. The son was an adult person in no way dependent upon the bounty of the parent. He has no claim upon his father at all, superior to his sisters, against whom he seeks relief. While recognizing the principle that in certain cases the performance of a moral duty will justify the intervention of equity, Pomeroy, in his work on Equity Jurisprudence, says that it is only effective within very narrow limits, and will only “ enforce the promise thus imperfectly performed, as against a third person claiming
The transaction under consideration was, in a general .sense, a testamentary disposition of property. The doctrine being established in this state that equity will not reform a will, the plaintiff is left without remedy. Sherwood v. Sherwood, 45 Wis. 357.
By the Court.— Judgment of the circuit court is affirmed.