There must be sufficient equity apparent on the face of the bill
to warrant the court in granting the, relief prayed, and the
material facts on which the plaintiff relies must be so distinctly
alleged as to put them in issue.
A court of equity has jurisdiction of a suit brought by heirs at
law to set aside a conveyance of lands obtained from their ancestor
by undue influence, he being so infirm in body and mind from old
age and other circumstances, as to be liable to imposition,
although his weakness does not amount to insanity.
The same jurisdiction may be exercised where one of the heirs at
law has, with the consent of the others, taken such a deed upon an
agreement to consider it as a trust for the maintenance of the
grantor, and after his death for the benefit of his heirs, and the
grantee refuses to perform the trust.
Under what circumstances such a conveyance may be allowed to
stand as security for actual advances and charges, and set aside
for all other purposes.
In such a case, not depending on the absolute insanity of the
grantor at the time of executing the conveyance, the court may
determine the question of capacity without directing an issue.
The verdict of a jury as to the sanity of the grantor at the
time of executing such a conveyance would not be conclusive, the
court being competent to determine for itself the degree of
weakness or of imposition which will induce it to set aside the
instrument.
Exceptions to the report of a master are to be regarded by the
court only so far as they are supported by the special statements
of the master or by a distinct reference to the particular portions
of testimony on which the party excepting relies. The court does
not investigate the items of an account nor review the whole mass
of testimony taken before the master.
Rules of practice in accounting before a master.
In accounting before a master, the oath of the party should not
be received to support charges which, from their nature, admit of
full proof.
In a suit inequity brought by heirs at law to set aside a
conveyance obtained from their ancestor by fraud and imposition, a
final decree for the sale of the property cannot be pronounced
until all the heirs are brought before the court as parties if they
are within the jurisdiction.
If all the heirs cannot be brought before the court, the
undivided interest of those who are made parties may be sold.
The bill filed in the court below by the appellants, Harding,
and Nancy his wife, and Sterling Wheaton, alleged that they, with
four others not made parties to the suit, together with Caleb
Wheaton, one of the defendants, were entitled, as heirs at law of
Comfort Wheaton, deceased, to the real property mentioned in the
bill and situate in the State of Rhode Island. That Comfort W.,
about the year 1802, began to exhibit symptoms indicating a loss of
intellect, and soon became, from various causes mentioned in the
bill, incompetent to the management of his estate, and died in
1810. That under these circumstances, the defendant, Caleb W. (his
son), and who acted as well for himself as in behalf of the
plaintiffs and the defendant Handy, the son-in-law of Comfort W.,
entered into an agreement to endeavor to take his estate out of his
hands and to preserve it for the benefit of his heirs at law. That
it was agreed that Comfort W. should be prevailed on to convey his
real property to
Page 24 U. S. 105
Handy for a nominal consideration, who should forthwith execute
an instrument of writing declaring that he took and held the same
in trust, first to provide for the decent support of the grantor
during his life, and after a full remuneration for his expenses and
trouble in that respect, to hold the residue of the estate for the
benefit of the heirs at law. That on 9 May, 1805, Handy did procure
such conveyance for the nominal consideration of $2,178 from
Comfort W., and entered upon, possessed, and enjoyed the property
in question, but that he refused to execute any declaration of
trust as he had agreed, but held the property, claiming it as his
own. The bill then alleged that the defendant, Caleb W., after the
death of his father, Comfort W., acting on behalf and for the
benefit of the heirs, procured letters of administration of the
personal estate of Comfort W. to be issued by the proper court, and
caused such further proceedings to be had as that the administrator
exposed to sale the real property before mentioned, which had been
conveyed to Handy, and that Caleb W. became the purchaser thereof
for the general benefit of the heirs. That various suits at law had
resulted from these transactions, and among others an ejectment
brought by the defendant, Handy, against the defendant, Caleb W.,
by which the value of the property had been much deteriorated. The
bill then prayed for an account respecting the property; that a
decree might be rendered exonerating it
Page 24 U. S. 106
from the deeds to the defendant Handy after satisfying his just
claims, and ordering one fifth part of the real estate to be set
off to the plaintiff, Nancy H., and one fifth to the plaintiff,
Sterling W., and for general relief.
The answer of the defendant Handy denied that Comfort W. was
incapable of conveying his property when the deeds of 9 May, 1805,
were executed, and insisted that his intellect was perfectly sound
at that time. It also denied that he, the defendant, purchased as a
trustee, and averred that he was a purchaser for a valuable and
full consideration. The answer of the other defendant, Caleb W.,
admitted the allegations of the bill and submitted to any decree
the court might think equitable.
A great mass of testimony taken in the court below appeared in
the record, which was very contradictory as to the capacity of
Comfort W. to make the conveyance in question.
The circuit court, by its interlocutory decree, directed that
the deeds of 9 May, 1805, should be set aside as having been
obtained by false impressions made on a mind enfeebled by old age
and various other causes, and that an account of the receipts and
disbursements of the defendant, Handy, should be taken, and that he
should be credited for all advances made, and charges incurred for
the maintenance of Comfort W. during his lifetime and for repairs
and improvements made on the real estate. Exceptions were filed by
both parties to the report,
Page 24 U. S. 107
which was confirmed by the court below. The final decree
declared that the real estates conveyed to the defendant Handy
should stand charged with the amount of the balance of the account
due to him; that the same should be sold and the proceeds brought
into court; that the said balance should be paid to him, deducting
his proportion of the charges, &c., and the residue, deducting
their proportions, &c., should be paid over, and distributed
among the heirs at law of Comfort W. If there be any such heirs not
made parties, they to be at liberty to come in under the decree and
receive their shares, paying their proportions of costs and
expenses, otherwise to be excluded. That each party before the
court should pay his own costs, excepting the fees of the officers
of the court, which should be a charge on the property and borne by
the parties according to their respective proportions of interest
in the proceeds of the sale.
From this decree both parties appealed.
Page 24 U. S. 119
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court,
and after stating the case, proceeded as follows:
The counsel for Asa Handy contend that the bill seeks to set up
a parol trust, which is denied in the answer, and that the decree
is founded on a supposed incompetency of Comfort Wheaton to convey
his property. The decree therefore is not supported by the
allegations of the bill.
They also contend that the decree is not sustained by the proofs
in the cause.
That the bill alleges the conveyances of 9 May to have been
received for the benefit of the family is unquestionable, but this
is not
Page 24 U. S. 120
incompatible with the incompetency of Comfort Wheaton to execute
them. Deeds may be obtained from a weak man for the purpose of
preserving his estate for himself and family and of protecting him
from the impositions to which he might be exposed, and there is
nothing to restrain one of the heirs who may think himself
aggrieved from bringing the whole case before a court of equity.
If, indeed, it were true in fact that the bill does not allege this
incompetency so as to put it in issue, the objection would be
conclusive, for it is well settled that the decree must conform to
the allegations of the parties. But we think this bill is not
justly exposed to this objection. It states the general correct
conduct of C.W. during the life of his wife; that soon after her
decease, he was visited by a paralytic stroke, which was followed
by a total change in his conduct. He was addicted to intoxication
and to many vicious habits in the course of which fears were
excited in his family that he would waste all his property or
convey it to his profligate companions. They consulted together and
with their friends, and the first proposition was to apply to the
court for a guardian to manage his affairs according to the law of
Rhode Island in such cases. It was, however, finally agreed that
Asa Handy should obtain deeds for his property and hold it for the
use of C.W. during his life and of his heirs after his death. The
bill then proceeds to state that the said Asa Handy, knowing the
premises, did induce the said Comfort, "he being in the state and
condition
Page 24 U. S. 121
of body and mind aforesaid," for the nominal consideration of
$2,178, to make the conveyances in the bill mentioned.
Although a more direct and positive allegation that C.W. was
incapable of transacting business would have been more satisfactory
than the detail of circumstances from which the conclusion is
drawn, yet we think that the averment of his incompetency is
sufficiently explicit to make it a question in the cause. The
defendant has met this charge, and we cannot doubt that his answer
is sufficiently responsive to the bill to give him all the benefit
which the rules of equity allow to an answer in such
circumstances.
We proceed, then, to look into the proofs in the cause and to
inquire whether the testimony establishes the incompetency of C.W.
when these deeds were executed.
We have examined with attention the immense mass of
contradictory evidence which the record contains. A number of
persons, and, among others, the witnesses to the deeds, express the
opinion that he was capable of managing his affairs and of
disposing of his property. This evidence, however, is met by such a
mass of opposing testimony as can scarcely be resisted. Among the
numerous witnesses who testify to the imbecility of his mind are
many who had been long and intimate acquaintances. All his
physicians concur in stating in strong and decided terms the
weakness of his mind as well as
Page 24 U. S. 122
his body, which they ascribe chiefly to the character of his
disease. One of them, Doctor Barrows, attended him about the time
these deeds were executed. He says
"With regard to the state of his mind, at all times when I saw
him within the said period (from 1f March to 25f November, 1809), I
can say that he appeared to me wholly incapacitated to transact any
money business or to have the care of any concerns whatever. It is
my opinion that the decay of his mental faculties was such as to
induce that state of fatuity which would unfit him for all the
purposes relative to the affairs of life except obeying the various
calls of nature."
Some of the witnesses add to their opinion of his imbecility
some circumstances on which the opinion is founded which cannot
fail to make a deep impression on the mind. Ziba Olney says that he
was acquainted with C.W. for the last five years of his life, who,
for the last fifteen months of them, resided in his family.
"That during the whole of these times he appeared to be childish
and incapable of transacting any business. The reasons of this
opinion are that he would frequently repeat the same questions, and
would several times in the same day ask what day of the week it
was. At short intervals, he would talk rationally, and then would
break off from conversation to singing, and from that to crying.
That he would frequently go out in the night and day naked except
his shirt. That he would frequently break out in profane language,
and at other times preach."
Several other
Page 24 U. S. 123
witnesses describe the situation and conduct of this afflicted
old gentleman in a manner to add great weight to their opinion that
his faculties were prostrated. Many even of those witnesses who
depose to his competency declare that the public opinion and
language of his neighborhood was that his mind was deplorably
impaired, and the conduct and declarations of his family, including
the defendant Asa Handy himself, show a settled conviction that
C.W. was incapable of managing his affairs.
There is evidence of the consultations in which Handy
participated previous to the deeds of 9 May for putting the old
gentleman and his estate under guardianship, and there is also
evidence of similar consultation respecting the propriety of
procuring a conveyance of his property in order to save it for
himself and his family. This may not be admissible as proof of a
trust, but it is strong evidence of a conviction that the person
from whom the deed was to be obtained was unfit for the management
of his own affairs. Among other testimony to this point, Abner
Daggett deposes that Asa Handy asked him if he had a notion of
buying his father Wheaton's lot. The witness answered that he had
had some conversation with Wheaton about it, upon which Handy said
Wheaton was no more capable of selling his estate than a child. The
witness was deterred from purchasing, though he wished to acquire
the lot, by the fear of subsequent controversy.
The great and sudden revolution in the whole
Page 24 U. S. 124
conduct of C.W. immediately after the first paralytic stroke,
viewed in connection with his advanced age, is a strong
circumstance in corroboration of the opinion that his mind was
diseased. A sober, prudent, reflecting, and moral man, between
seventy and eighty years of age mingles with profligate people, to
whom he devotes himself, and becomes suddenly intemperate, immoral,
and childishly whimsical and indiscreet, so that his nearest
friends think it necessary to put it out of his power to ruin
himself.
The terms on which the old gentleman stood with his family are
not entirely unworthy of consideration. But two of his children,
Caleb, and Mary, the wife of the defendant Asa, lived near him.
From causes some of which may be discerned in the record, he was on
ill terms with Caleb. One of the witness deposes that he said on
one occasion, "You know, Asa, I made you the deeds to spite Caleb."
There is other testimony to the same effect. The necessary
consequence of this quarrel with Caleb was to subject him in an
increased degree to the influence of Mary Handy and her husband and
exposes the deeds conveying all his property to them to an
increased degree of suspicion.
The inadequacy of the consideration as stated in the bonds
referred to in the answer furnishes an additional argument against
these deeds. It was chiefly the support of C.W. for the residue of
his life. This proved to be five years, which was a longer time
than his age and state of health at the time of the transaction
rendered
Page 24 U. S. 125
probable, but which was certainly not a full consideration for
the property.
These various circumstances add so much weight to the opinions
of those who depose to the incompetence of C.W. that the mind
cannot withhold its assent from that conclusion. An issue, indeed,
might have been directed, but we do not think it a case in which
this course ought to have been pursued. The degree of weakness or
of imposition which ought to induce a court of chancery to set
aside a conveyance is proper for the consideration of the court
itself, and there seems to be no reason for the intervention of a
jury unless the case be one in which the court would be satisfied
with the verdict, however it might be found. A verdict affirming
the capacity of C.W. to execute these deeds on 9 May, 1805, could
not, we think, have been satisfactory to the court, and it was,
consequently not necessary to refer the question of competency to a
jury.
If these deeds were obtained by the exercise of undue influence
over a man whose mind had ceased to be the safe guide of his
actions, it is against conscience for him who has obtained them to
derive any advantage from them. It is the peculiar province of a
court of conscience to set them aside. That a court of equity will
interpose in such a case is among its best settled principles. The
cases cited in the argument, which we will not repeat, place this
beyond the possibility of question. It was therefore proper to set
aside the deeds and to direct the defendant
Page 24 U. S. 126
Handy to account for the money he had received under them.
But although that defendant ought not to be permitted to benefit
himself by his own improper act, it is not reasonable that he
should be burdened with the debts of C.W. and the expenses of his
maintenance. These are proper charges on the estate itself. So are
improvements and repairs which enhanced the rents and the value of
the estate. As a defendant in equity, Asa Handy has certainly a
right to retain them and to receive credit for them in the account
which was directed by the circuit court.
There is, we think, no error in the manner in which the account
was directed to be taken.
The parties were heard before the master, who, after a very
laborious and comprehensive examination of their accounts, has made
a voluminous report, to which both parties have excepted.
It may be observed generally that it is not the province of a
court to investigate items of an account. The report of the master
is received as true when no exception is taken, and the exceptions
are to be regarded so far only as they are supported by the special
statements of the master or by evidence, which ought to be brought
before the court by a reference to the particular testimony on
which the exceptor relies. Were it otherwise -- were the court to
look into the immense mass of testimony laid before the
commissioner -- the reference to him would be of little
Page 24 U. S. 127
avail. Such testimony, indeed, need not be reported further than
it is relied on to support, explain, or oppose a particular
exception.
1. The first exception made by Handy is that only the sum of
$5,448.26 was allowed him by the commissioner, instead of
$101,167.30, the amount of his claim. This is a general exception,
which comprehends, it is supposed, the particular alleged errors
enumerated in the subsequent exceptions.
2. The second exception is that the master did not admit his
whole account on his own oath.
The conduct observed by the master on this point is thus
specially stated by himself.
"I admitted said Asa to make oath to all charges, whether for
money, specific articles, or services, which, from the
circumstances of the parties or the nature of the charge itself,
could not, in my opinion, be proved by vouchers or other legal
evidence."
This rule adopted by the master is in our opinion one to which
Handy could make no just objection. There can be no propriety in
admitting the party as a witness to support items in an account
which from their character admit of full proof. Of this description
are the items which constitute his third exception. It is the
demand of testimony to support his charges for repairs and
improvements. These repairs and improvements are susceptible of
complete proof, and as there could be no difficulty in
procuring
Page 24 U. S. 128
it, the commissioner did right in requiring it. The fourth
exception is to the rejection of his oath to discharge himself from
rents, which, as he alleged, he had not received.
The commissioner has made considerable deductions from the total
amount of rent, if calculated for the whole time, but has rejected
the oath of Handy because he admitted that he had kept ledgers in
which his receipts of rents were regularly entered which were still
in his possession, but which he refused to produce. The decision of
the master on this point was so obviously right that it need only
be stated to be approved.
5. The fifth exception is that the master has not allowed for
repairs and improvements according to the measurement of Nathan
Parks, which was on oath, but according to the estimate of John
Newman, which was not founded on actual measurement, but made
principally by the eye.
The master reports that
"in addition to the evidence produced by the parties, I
appointed John Newman, an experienced and skillful measurer of
carpenters' work, to go on the premises, together with the said
Handy and myself, and to measure and estimate all such repairs, and
alterations and buildings as said Handy, being under oath, should
point out as being made and executed by him."
The estimate of the said Newman, with his deposition, are
referred to, and annexed to the report.
Newman deposes that his estimate is founded
Page 24 U. S. 129
on actual measurement, except parts of the roof of one building,
which he took from the measurement of Nathan Parks and of another,
in which he was guided by the statement made by Handy himself of
the length of the rafters, which accorded with his own
estimate.
That a measurement thus made and proved was entitled to more
respect than the
ex parte measurement of Parks cannot be
doubted.
6. An exception is also taken to the report because it disallows
the charge made by Handy of a note which he says was proved.
This exception, it is presumed, was not taken before the master,
as he does not notice it, and it is too vague to be regarded.
Neither the note nor the ground on which payment is claimed, nor
its amount, nor the reasons of its rejection, is stated; nor is
there any reference to the evidence in support of it. Nothing is
stated to induce a suspicion that the disallowance of it was
improper. Yet the Court, from its solicitude to discover whatever
the record might contain on this subject, has looked through the
report. Nothing is said, so far as we can perceive, respecting a
note except in the affidavit of Ziba Olney, who states that Asa
Handy became the endorser of some note for Appleby, which was
settled in some way in the board of C.W., on which note, he
believes, Handy was sued. If this is the note to which the
exception alludes, the claim is absorbed in the allowance made him
for the board of C.W. But whether it be the note or not,
Page 24 U. S. 130
the exception is totally unsupported and cannot be
sustained.
7. A seventh exception is a charge of money alleged to have been
received of Doctor Bowen, although he discharged himself therefrom
on oath, in payments of different sums under twenty dollars
each.
This is the application to a particular item of the principle
contained in the second exception, and is disposed of with that
exception.
8, 9. The eighth exception is a repetition of the objection to
the manner in which Handy is charged with repairs, the master's
report respecting which has been already stated to be satisfactory,
and the ninth is a repetition of the claim to sustain his accounts
on his own oath.
10. The tenth exception is to the requisition made on him to
produce his ledger, in which entries had been made of the rents he
had received -- a requisition to which he objects because it
contained transactions anterior to the entries of rent.
The validity of this objection cannot be admitted. The ledger
might be inspected in the presence of the defendant, Handy, and
there could be no propriety in commencing the examination with
prior transactions.
11. The eleventh exception respects the calculation of interest.
The commissioner had made what are denominated rests in the
account, instead of calculating interest on each minute item. This
mode of calculating receipts and expenditures in accounts
consisting of numerous
Page 24 U. S. 131
small items, is recommended by convenience and has been
generally adopted. It seems to have been properly adopted in this
case.
12. The twelfth and last exception is a repetition of the often
repeated and as often rejected claim to be admitted to swear to his
whole account.
The original plaintiffs except:
1. To the allowance made to the said Asa Handy for buildings
which were erected on the lot after the death of C.W., which are
said to be no advantage to it.
But there is no proof and no reason to believe that these
buildings were not a real advantage to the property and did not
increase the rent and the value. This exception therefore was
properly overruled.
2. The second exception is to the admission of the said Handy's
oath, in cases in which he refused to produce his books and the
books of C.W.
No example of this admission is given, nor is there any proof in
support of the exception. The rule by which the master was governed
has been already stated and approved.
3. The third exception is a repetition of the objection to the
admission of items in the account of Handy, on his own oath, and is
answered by a reference to that part of the report which relates to
this subject, and which has been already stated.
The fourth, fifth, sixth, and seventh exceptions are totally
unsupported by evidence, and consequently cannot be sustained.
Page 24 U. S. 132
We think the circuit court did right in confirming the report of
the commissioner.
Upon the return of this report, the circuit court directed the
estates to be sold and the money due to the said Asa Handy to be
paid in the first instance, and that one-fifth of the residue
should be paid to each of the plaintiffs, that being the
distributive share of each under the law of Rhode Island. The
decree proceeds to authorize the heirs who were not made parties to
come in and receive their distributive shares on paying their
proportion of the costs and charges of suit.
The objection to this decree is that the children of Mary Handy
and the children of Daniel Wheaton are not parties to the suit.
It has been supposed that it is not necessary in Rhode Island to
make all the heirs parties because, by the laws of that state,
parceners can sue separately for their respective portions of the
estate of their ancestor. This law would undoubtedly be regarded in
a suit brought on the common law side of the circuit court. Its
influence on a suit in equity is not so certain. But however this
may be, we are satisfied that a sale ought not to have been ordered
unless all the heirs had been before the court as plaintiffs or
defendants. Although the legal estate may be in Caleb Wheaton under
the deed made by the administrator, yet he acknowledges himself to
be a trustee for the heirs, having purchased for their benefit.
They have therefore a vested equitable interest in the property of
which they
Page 24 U. S. 133
ought not to be deprived without being heard. They may choose to
come to a partition and to redeem their shares by paying their
proportion of the money with which the estate is charged. The bill
does not state that the heirs who are not made parties are
unwilling to become so or cannot be made defendants by the service
of process. We think, then, that there is error in proceeding to
decree a sale without bringing all those heirs before the court who
can be brought before it, and for this error the decree must be
Reversed and the cause sent back with liberty to the
plaintiffs to amend their bill by making proper parties. If all the
heirs cannot be brought before the court, the undivided interest of
those who do appear is to be sold and the lien of Asa Handy is to
remain on the part or parts unsold, to secure the payment of so
much of the money due to him as those parts may be justly
chargeable with.
DECREE. These causes came on to be heard, &c., on
consideration whereof this Court is of opinion that there is no
error in the interlocutory decree, nor in so much of the final
decree as approves and confirms the report made by the master, but
there is error in so much thereof as directs a sale of the premises
therein mentioned, all the heirs who are shown to be interested in
the said premises not being made parties and it not being shown or
alleged that they could not be made parties. So much of the decree,
therefore, as directed a sale of the premises in the
Page 24 U. S. 134
bill mentioned is REVERSED and ANNULLED, and the residue thereof
is AFFIRMED, and the cause is remanded to the said circuit court
with liberty to the plaintiffs to make all proper parties, that the
whole may be sold if all the heirs can be made parties, otherwise
the shares of such as are made parties. Each party to pay his own
costs in this Court.
