Cherbonnier v. Evitts

Ritchie, J., delivered the opinion of the Court. The appeal in this case, is from a decree of the Circuit Court for Caroline County, refusing to set aside a deed of gift made by one Seth H. Evitts, since deceased, conveying all his real property, a farm of about three hundred acres, to William Seth Evitts and James A. Butler, subject to a life estate in himself, &c. The complainant, P. O. Cherbonnier, flies his bill in the two-fold and several capacities of executor and devisee under the last will of said Seth H. Evitts, which has been duly admitted to probate, assailing the validity of the deed upon the grounds of mental incapacity, fraud and undue influence. The answer of the respondents takes direct issue with the allegations of the bill in these respects ; and a great deal of testimony was taken on both sides.

As in all cases of this sort, there is much conflict between the witnesses. ²⁷⁸ Where mental unsoundness is not of a violent or pronounced type, contrary opinions as to the business capacity of the individual, are naturally to be looked for among laymen, or those unskilled in detecting the symptoms and effects of mental derangement. Indeed, the inquiry is then one of intrinsic nicety, and an unusual degree of scrutiny and discrimination is required to properly determine it. The issue of fraud and undue influence is, likewise, one commonly marked by conflicting testimony. The accusation of fraudulent dealing is calculated to provoke, the sharpest antagonism; and this is naturally reflected in the proof.

It is a charge that is usually pressed with vigor, and repelled with corresponding warmth. The ■ party accused of conduct so odious, if guilty, will be impelled by the same cupidity that led him to concoct his scheme, to carry it to success ; while, if innocent, he will be spurred by" regard for his good fame, and his sense of wrong, to make good his vindication. In the struggle over such an issue, as' in that of mental incapacity, much conflict of testimony is to be expected : and we, accordingly, have this condition of the evidence in the present case. But, notwithstanding the many and irreconcilable differences between the witnesses who testified in this cause, after carefully sifting the testimony and assigning their proper weight to the controlling facts connected with the-history of the grantor, and the transactions appertaining to the deed he executed, we are of the opinion this' instrument ought to be annulled.

In determining whether an owner in disposing of his. property by way of gift, has done so with a sound mind, and in the exercise of his own deliberate will, not only his condition at the time of the execution of the instrument and the circumstances of the act of execution itself, are to be considered, but also his previous life, habits and relation, ²⁷⁹ to others, so as to ascertain the natural or probable objects of his bounty, and especially, to discover his settled purpose, if any he had, in regard to the disposal of his estate. Indeed, when a particular conveyance is impeached, as in this case, upon the grounds of mental weakness and fraudulent influence, evidence bearing on these issues derived from the history of the grantor, prior to and outside the act in controversy, is obviously entitled to greater weight than what transpires at or about the date of the execution of the instrument. Unsoundness of mind, when not re'aching to mania or idiocy, is compatible with the semblance of perfect reason on occasion or for a period; and, where undue influence has been craftily plied, it so insidiously possesses the mind of its victim with false impressions or delusions, that he often voluntarily, and even eagerly, performs the act, into which he has been skilfully duped. It does not necessarily follow, therefore, that if the grantor in the present case, willingly executed the deed in question, that he was, in a legal sense, either mentally capable of doing so, or that the act was his own.

It might be conceded, though the proof by no means establishes it, that he himself suggested and directed the execution of the deed, and still the weight of evidence would be against the validity of the instrument. The grantor was about seventy-nine years of age when he signed the deed, the date of which is the 20th day of December, 1876. On the 27th day of August, 1875, he executed a last will and testament, which was duly admitted to probate by the Orphans’ Court of Caroline County after his death, which took place on the 22nd of September, 1877. By this will, the deceased devised as follows, viz.,. “ To my black. girl, Sarah Jane Kirby, five hundred dollars, and the balance of my property, real, personal ²⁸⁰ and mixed, to my sister Lucretia Evitts, during her natural life-time, and after the death of my said sister Lucretia Evitts, I give all the said property, real, personal and mixed, to my friend Doctor Pierre Ovide Cherhonnier, of Talbot County, the husband of my niece, Anna Maria. “My six silver tea spoons, I give to my niece, Anna Maria Cherbonnier, wife of my above named friend, O. P. Cherbonnier. “ My silver table spoons, six in' number, and my old silver watch, which formerly belonged to Seth H. Evitts, my uncle, to Sarah Ann Towers, wife of Elijah Towers.” Then follows the appointment of Dr. Cherbonnier executor, and the usual clause revoking all former wills. .

But sixteen months elapsed between the execution of this will, and the signing of the deed. That the deed should be so diverse from the will, not only as to the disposal of his property, but as to his sentiments toward Dr. Cherbonnier and his wife, is indeed striking. In the will, he speaks affectionately of the Doctor as his friend, and the husband of his niece, and as such, leaves him substantially his entire estate; in the deed, he conveys his estate to wholly new beneficiaries, and affixes to the Doctor and his niece, the stigma of had treatment of himself, and robbery of his property. The moods and dispositions of the grantor are in such marked contrast, as reflected in these two instruments, that the history of the origin, nature and duration of the motives and purposes which led to their respective execution, becomes an obvious guide in determining the issue whether the latter is the product of a sound mind and independent will.

Upon turning to the proof, we find that the execution of the will in favor of Dr. Cherbonnier, was hut the carrying out of what may be termed a life-long purpose, formed by Seth H. Evitts, in the vigor and prime of his ²⁸¹ manhood., cherished for over thirty years, based on natural and potent considerations, and in accord with his business affairs and family ties. He was unmarried and childless, living with his maiden sisters, whom he survived. They, when alive, with his colored servant, Jane Kirby, constituted his household. After the death of his sisters, his heirs-at-law were his niece, Mrs. Cherbonnier, wife of the doctor, who for the most of their married life, lived near him on the most •intimate and affectionate terms, and two nephews; but these nephews resided in a distant State, comparatively strangers to him.

His only other relatives were some second or third cousins. Dr. Cherbonnier testifies that so far back as 1848, Seth H. Evitts expressed his intention to leave him his property. The occasion was of a character to impress itself upon the Doctor’s memory, and he details with particularity what took place, as follows : “I sold at public auction on the 23rd of May, 1848, as executor, the real estate of his brother, John Evitts; he told me to inform him when to stop bidding for the farm-; I answered that I would not tell him to stop, for I was interested in getting as much as I could for the property ; he remarked to me then, that that farm was a part of his mother’s maiden property, and that he wanted to buy it for me, so that I would have the whole at his death. I told him I did not want it.

He then said that his brother Joseph, the father of my wife, did not get his share of his mother’s estate, and that he wanted to repair an injustice; and on several other occasions subsequent to that period, he intimated to me his intention to leave his property to me at his death.” We have in this piece of uncontradicted testimony, p.roof of the emphatic declarations of Seth H. Evitts, made so early as 1848, and repeated on different occasions afterwards, of his purpose to leave his estate to the ²⁸² Doctor ; and these expressions of his purpose are fortified hy the motives he avows and the reasons he discloses. He regarded the Doctor in the double aspect of his .friend, and the representative of his niece ; and in his latter relation assigns a motive of the highest nature — a sense of moral obligation to repair an act of wrong and injustice by which his niece, in the family divisions of property, had been deprived of her just proportion. There is here combined the deliberate and oft-repeated expression, of his intention to leave his property, as he ultimately did dispose of it by his will, and the strongest and most rational of reasons for so doing; a disposition of it, without which the injustice he felt and acknowledged, would not be repaired. James Hignutt and other disinterested witnesses, also testify to repeated declarations by him at long intervals, to the same effect.

The testimony of Mrs. Cherbonnier to the affectionate relations between herself and husband, and her uncle, is full and positive. It shows not only the cordial terms on which she herself stood with Mr. Evitts, but the even greater attachment he had formed for her husband. She says: “ I often heard him speak fondly of the Doctor. He told me that he loved me, and would do any thing for me, but he loved my husband best.” This particular declaration of his affection for the Doctor, was on the occasion of a visit to. him in 1813, during the four years the Doctor resided in Baltimore.

But satisfactory as the testimony of the Doctor and Mrs. Cherbonnier, and of other witnesses, is on this point, the frequent expressions of Seth H. Evitts in his own letters, conclusively establish that the intercourse between .them throughout the thirty-five years that elapsed after the marriage of the Doctor to his niece, was an uninterrupted history of kind offices and mutual devotion. Whether as physician, landlord, counsellor or friend, the ²⁸³ Doctor was always at the command of Mr. Evitts ; and his services and friendship naturally inspired in the latter his unbounded confidence and warmest interest in return. Extracts from the letters of Mr. Evitts during the four years Dr. Cherbonnier resided in Baltimore fully illustrate this. In a letter to the Doctor, dated May 24, 1870, he says : “ You said you was coming soon; I should he very glad to see you, though I should he very sorry to part with you when the time came for parting; for I seem loansom ever sence you left me under the walnut tree.

I never shall forget that time; the parting with the best friend I had in this world.” He then proceeds to inquire as to how the Doctor is getting along in his business, &c., and after sending his love to all the family, concludes : “I shall forever remain your friend.” In a letter bearing date July 11, 1870, he says: “You nurst me in sickness, and been a better friend to me than both my brothers ever was. Can I forget such a friend ? No, never; if necessity required it, I would divide the last dollar with you.” On January 12th, 1871, he concludes a letter with: “I should he glad to see you, and take you by the hand once more. This from your loving friend.” And so in a letter written on September 11th of the same year, he conclndes : “My love to you and family.

This from your true friend.” And on November 2nd, following, he writes : “ I would like you to send me one sack of salt and one cag of nails, if you will let me pay you for them. * * Your sincere friend.” In the year 1872, September 28th, he declares in a letter of that date: “ My love for you is as strong as ever.” In the fall of 1874, October 16, being ill, he writes: “ I am very sick. Gome and see me if you can.” ²⁸⁴ On March. 30, 1875, he writes briefly and painfully about his health : “ I am not well; I ’ave a giddy headake. Sometimes I fall and hurt myself. Write soon .and tell me what to do for it.

Lucretia, [his sister,] is doing as well as common. I cannot wright as well as I ust to do. My love to you and family.” The last two notes were written to the Doctor after he removed from Baltimore, taking up his residence in Talbot County. In August of the following year, 1876, Mr. Evitts lost his remaining sister, Lucretia.

Her death was a great blow to him, especially in his enfeebled and lonely condition. At his own request, shortly after the burial of his sister, Dr. Oherhonnier took him to his house, where he remained eight or ten days, and was then taken back, for a visit, to his farm. He was brought hack again next day to the Doctor’s. After staying there two or three weeks longer, he expressed a desire to vote, and the Doctor took him hack to his own farm.

Here the Doctor visited him every other wéek, looking after the management of his place for him until he himself was taken ill in November with a severe and protracted spell of rheumatism. He did not see Mr. Evitts after that. On the 20th of the next month the deed in issue was executed. The will, which was made August 27th, 1875, as stated, and which was witnessed by Col.

Wm. Hayward, is described by him as “ the old will with some alterations.” This will was also drafted by Col. Hayward, at the request of Mr. Evitts, who, the Col. testifies, both out of und in the presence of Doctor Oherhonnier, declared his testamentary wishes to he as expressed therein. On the 2nd of April, 1876, he made another will, modifying the one first mentioned in some minor respects, hut renewing in it the devise to Dr. Oherhonnier, as contained in the first. ²⁸⁵ After the death in August, 1876, of his sister Lucretia, Seth H. Evitts on the 22nd of September following, made another will, substantially like the former ones, devising in it the property in which his sister Lucretia would have had a life estate had she survived him, absolutely to Dr. Cherbonnier.

Both these last two instruments were in accordance with his wishes as expressed when they were made, .but were not admitted to probate by the Orphans’ Court upon the ground that the deceased was at the time of their execution incompetent to make a valid will and testament. This action of the Court leaves standing the will of August, 1875, which in substance is identical with those denied probate, so far as Dr. Cherbonnier is affected, Lucretia Evitts having died before the testator. Practically, therefore, the Doctor will take the real estate of Seth H. Evitts as his devisee, unless he is deprived of the same by the deed. Without citing testimony other than that referred to, we deem it established that it was the deliberate and long cherished purpose of Mr. Evitts to make Doctor Oherbonnier the devisee of his estate.

No question is made of this by any one for that portion of his life when his sanity was undoubted. Let us inquire then for the explanation of the sudden abandonment by Seth H. Evitts, at the advanced age of seventy-nine years, of his life-long purpose and life-long-friendship. And, first, let us see what causes are set forth in the deed itself for so extraordinary a change, and who are the substituted objects of his favor and bounty. The recitals and considerations are sundry ; and seem to be adroitly arrayed in the nature of an anticipated defence, as if this illiterate old farmer were familiar with the force of the presumptions thrown around an heir-at-law, and knew the best legal devices for obstructing an ²⁸⁶ expected attack upon the bona fides of an instrument.

Such scrupulous attention, too, is bestowed upon the mere formalities of execution, that a crowd of witnesses are assembled on the occasion of its signing, giving the scene the effect, as one of them described it, of being done in “ open Court.” Three witnesses attest the deed, while so simple an act as the substitution, at the request of Mr. Evitts, of the word “ tablespoons ” for “ teaspoons,” in a cotemporaneous schedule of property, is formally certified by four witnesses; in order, we presume, to - establish beyond cavil, through this mental effort, his unimpeachable strength of mind and freedom from influence. Mr. William S. Evitts, one of the grantees, collected the spectators who attended upon, and attested the signing of the deed, and went for the attorney who drafted it. His co-grantee, Mr. James A. Butler, was likewise in attendance. The reasons-or excuses assigned in the deed for the exclusion of his next-of-kin from all benefit of his estate are in these words: “ Whereas the children of my deceased brother, John Evitts, whose residences, if living, are unknown to me; and whereas I have recently been badly treated by my niece, Mrs. A. M. Cherbonnier, and her husband Dr. P. O. Cherbonnier, they having taken from me large sums of money in gold and Legal Tender or National Bank notes, in addition to money from sales of my corn and wheat, and two promissory notes given by Dr. P. O. Cherbonnier, one for $1600, and tbe other for $1000, together with property belonging tome taken without my knowledge and consent:” — Thus imputing to his niece and her husband a high-handed and wholesale larceny of his effects.

Then, proceeding, “ in consideration of the premises and for divers other good and valuable considerations,” and in consideration of “.their services and attention to him in his old age,” he grants unto William Seth Evitts and James A. Butler, to take effect on his ²⁸⁷ death, his real estate, containing three hundred acres “in fee, to he divided between them in such portions as they shall agree upon.” He then gives to his cousin, Sarah A. Towers, wife of Elijah Towers, a promissory note due him from her husband, reserving the right to receive such portion of the interest thereon during his life as he might require.” The instrument concludes by revoking a power of attorney given Dr. Cherhonnier in September, 187&. When we come to probe the grounds set out in the deed for the disposition it makes of his property, they seem without genuine foundation. As to the first recital of the deed, wherein it speaks of his nephews, Capt. John S. Evitts and Prank Evitts, vaguely as “ the children of hi's deceased brother,” apparently not recollecting their names, and even of whose being alive he expresses doubt, and of whose residence he says he is in total ignorance, we find it strangely at variance with the fact that among his papers was found a letter from these very.nephews, written less than two years before the deed was made, in which they speak of a visit and former letters to him, inquire of family matters, ask a reply, and give, minutely, their address as Ho. 17 Eden St., Salem, Mass.; and that a memorandum in his own handwriting in two places, of their address, was also found among his papers.

The imputations against his niece and her husband seem, from the proof, to he wholly groundless. There is not even a pretext for them as against Mrs. Cherhonnier, who at no time seems to have had anything to do with the management of his affairs or possession of ’any of his effects, and, always, even after the execution of the deed, to have retained his affection and good will. She testifies that she asked him why he made the charges in the deed; and he replied, that he never did it, emphasizing the denial by twice repeating it. And the witness Slaughter, in his testimony, says: “I saw Mrs. Cherhonnier at Mr. Evitts’ house some time in warm weather, in 1877, [after ²⁸⁸ the deed was executed;] they seemed to he friendly.

When she left, he cried, and he made her a present of two or three bed quilts.” As to the accusation of their taking notes due from Dr. Oherhonnier, it is pronounced utterly false hy them both, and it is worthy of notice that although a letter dated December 13, 1876, purporting to he from Seth H, Evitts, written in his behalf hy Wm. S. Evitts, expresses a wish for the speedy return of two notes of small amount, one for $75 by said Wm. S. Evitts, and one for $150 by Alex. Blakeley, no mention is made of the Doctor’s alleged notes, aggregating several thousand dollars.

As to the possession of the property which Doctor Oherhonnier did take, it seems to have proceeded from laudable motives, and not only to have been justifiable, hut to have been expressly desired hy Seth H. Evitts. It is not controverted that upon the death of his sister, Lucretia, Mr. Evitts was greatly depressed; that he was very aged, infirm and palsied, and that his