Atkinson v. Atkinson

Urwer, J., delivered the opinion of the Court. The deed of trust involved in this litigation was decreed to be invalid upon the ground that the grantor was under a mis ⁶⁴⁹ apprehension as to its real effect. In our opinion that conclusion was justified by the evidence. The grantor was seventy-one years of age, enfeebled by a recent illness, and suffering from the shock of his wife’s sudden death, when, on the day after her funeral, he executed the deed in controversy.

It conveyed his whole estate, estimated to be worth from $6,000 to $8,000, in trust for Ids benefit for life, and after his death for the trustee individually and three other remaindermen. The instrument was prepared by the grantor’s lawyer, Mr. Donovan, at his office, in pursuance of instructions communicated by the person designated in the deed as the trustee and as one of the beneficiaries. After its execution, at the grantor’s home, the deed was kept in Mr. Donovan’s possession for nearly a month. During that period he was twice interviewed by the grantor in regard to the effect of the deed upon the use and disposition of his property.

He was informed that the deed had not yet been recorded and could be destroyed or changed if he so desired, and that his property interests were still within his control. Shortly after the second interview Mr. Donovan had the deed recorded. This action was taken by him in the evident belief that it was in accordance with the grantor’s purpose, but the proof is not satisfactory as to such an intention. Both before and after the deed was recorded, the grantor exercised full rights of ownership over the property and funds which it purported to transfer.

He does not appear to have learned of its registration until the fact was reported about a month later in a newspaper. Within a few weeks after receiving this information he died as the result of an accident. In the meantime he had made a third visit to Mr. Donovan and expressed to him a wish to make a change in the trusteeship. Prior to the newspaper reference to the deed of trust, the grantor made declarations, according to the testimony, indicating his belief that he had simply appointed a “committee” to attend to his property interests if he should be unable to give them his personal attention.

His original plan was that the “committee” should consist of four persons, who were named in the instructions given for the preparation of the ⁶⁵⁰ deed, but at Mr. Donovan’s suggestion, with, a view to the more convenient management of the estate, a single trustee was appointed. The trustee and the remaindermen were all related to the grantor by blood or marriage, but they are not included among his next of kin or heirs at law. The following testimony of Mr. Donovan, who acted in good faith throughout the transaction, is important upon the question as to the existence of a reasonable ground for a misconception by the grantor with respect to the force and effect of the deed. Referring to the circumstances of its execution, Mr. Donovan said: “I explained to him the character of the paper I had prepared was a deed of trust.

I told him the provisions of it, that it was in the usual form and that a trustee would take charge of the property, collect the rents, and so forth, and out of the rents and receipts pay his expenses and use the money for his benefit, and included in there the provision that if necessary all the money could be used and the real estate sold for his benefit. He said, 'I guess that will fill the bill, let’s fix her up.’ I got a pen and he said, 'my hand is too shaky to