Whitridge v. Whitridge

McSherry, J., delivered the opinion of the Court. The object of this» proceeding is to vacate and set aside a voluntary deed executed by Miss Elizabeth Graham, now Mrs. Elizabeth Whitridge, less than six months after she had reached the age of twenty-one, and about two months prior to her marriage. The deed recites that she had attained the age of twenty-one and was desirous of settling her property in trust, and then in consideration of the premises and of one dollar conveys to her father, William H. Graham, and her cousin, ⁷¹ William Graham Bowdoin, all the property of every kind which she was entitled to, either in possession or by way of remainder, whether vested or contingent, under the will of her grandfather, George Brown, deceased. This property, amounting in value to about four hundred thousand ($400,000.00) dollars, had been given by the will of her grandfather to five trustees, William H. Graham, her father, being one, to be held until Miss Graham should arrive at the age of twenty-one, and thereupon the trust was to cease and the property was declared to be the ‘ ‘ absolute property of said Elizabeth.” Miss Graham was but four years old when her grandfather died, and from that time until after she attained her majority this property remained in trust in the hands of her father and the other trustees under her grandfather’s will.

She attained her majority on the twenty-fifth day of March, 1876, and on the seventh of August following she executed a release to these trustees acknowledging the conveyance and transfer by them to her of all the property to which she was entitled under the will of her grandfather. On November the ninth, 1876, the deed of trust now in controversy was signed. Its provisions are intricate and complicated, though perfectly intelligible to a trained professional mind. By this deed she irrevocably parted with the possession of and the title to every dollar of this large estate.

The deed declares that the net income of the property, after the payment of commissions, expenses, and taxes, shall be paid to her, not as it may accrue, but in quarterly instalments, for and during her life. The right to dispose by will of one hundred and fifty thousand dollars of the settled property to whomsoever she pleased was reserved to her by the deed; and the residue was limited in trust, first, to her children upon their attaining twenty-one years of age, and to the descendants of a deceased child dying under that age; with power in her to prefer ⁷² and apportion by will amongst her issue; secondly, in the event of her dying without leaving a child or children or issue capable of taking under the terms of the remainder first created, their the residue, together with the one hundred and fifty thousand dollars if undisposed of by will, was limited in equal moieties, hut unequal estates, to her father and brother — to her father absolutely, and to her brother for life — with cross-remainders and ultimate remainders to the heirs-at-law and next-of-kin of her grandfather, George Brown, and a power was superadded to prefer and apportion amongst these heirs-at-law and next-of-kin by last will and testament. The deed contains no power of revocation and no restraint on the right of the settlor to alienate her life estate; and, whilst making provision for the appointment of new trustees to succeed those named in the first instance, gives to her no voice in their selection, and allows her no participation whatever in making or changing investments. No part of the corpus of the estate can be used by her— it is placed absolutely beyond her reach — and she is wholly powerless during her life to advance a dollar of all this property to her children or to others whom she may wish to aid, no matter how desirable or meritorious such a step might be.

In a word, she has been deprived of all control over her property, and has been reduced by the deed to the position of a mere annuitant iipon her own estate. And not only is this so, but the very instrument which has produced these results, conferred a substantial benefit on her father, one of the grantees in the deed and one of the trustees by whom, under the will of George Brown, the very same property had been held and managed for the settlor from her early infancy. The benefit derived by her father was dependent, it is true, upon the contingency of his survivorship and of her death without leaving children, except as to the commissions which were unconditionally allowed. A ⁷³ young girl just twenty-one years of age, entitled in her own right without a single restriction to a large fortune, by a voluntary conveyance not only stripped herself of every dollar of that fortune, but granted the half of it to her father, if he survived her and she died without issue, though he had but three months before ceased to control it as testamentary trustee, whilst not relinquishing actual dominion over it.

A gift obtained where the relation of parent and child exists, and under such circumstances as these, is prima facie void, and the burden is on the donee to establish to the full satisfaction of the Court that it was the free, voluntary, unbiased act of the donor. A Court of equity, on grounds of public policy, watches such transactions with a jealous scrutiny, and to set them aside it is not necessary to aver or prove actual fraud, or that there was such a degree of infirmity or imbecility of mind in the donor, as amounts to legal incapacity to execute a will or a valid deed or contract. Todd, vs. Grove, 33 Md., 195 ; Williams vs. Williams, 63 Md., 371 . Lord Romilly in Cook vs. Lamotte, 15 Beav., 239, declared the law as follows: “The rule in cases of this description is this — Where those relations exist by means of which a person is able to exercise a dominion over another, the Court will annul a transaction under which a person possessing that power takes a benefit unless he can show that the transaction was a righteous one.

It is very difficult to lay down with precision what is meant by the expression relation in which dominion may be exercised by one person over another.’ That relation exists in the cases of parent, of guardian, of solicitor, of spiritual adviser and of medical attendant, and may be said to apply to every case in which two persons are so situated that one may obtain considerable influence over the other. The rule of the Court, however, is not confined to such cases. Lord Cottenham considered that it extended to every case in which a ⁷⁴ person obtains by donation a benefit from another to the prejudice of that other person and to his own advantage, and that it is essential in every such case, if the transaction should be afterwards questioned, that he should prove that" the donor voluntarily and deliberately performed the act, knowing its nature and effect. It is not possible to draw the rule tighter or to make it more stringent, and I believe it extends to every such case.” And in Everitt vs. Everitt, L. R., 10 Eq., 405, by a settlement by an unmarried lady a few months after she attained twenty-one, it was declared that a sum of money to which she was entitled absolutely, should be held by the trustees (who were her stepfather and uncle,) upon trust to invest the same in certain specified classes of securities, and vary the same at the trustees’ discretion, and pay the income to the settlor for life, for her separate use, with restraint on anticipation if and when married, and, after her death, to hold the fund in trust for the settlor’s children as she should by will appoint; and in default of appointment, for the children absolutely, and in default of children as the settlor should by will appoint, and in default for her next-of-kin.

The trustees were empowered at the settlor’s request to raise seven hundred pounds out of the fund, and pay the same to her for her separate use. Power of appointing new trustees was reserved to the surviving or continuing trustee, or to the executors or administrators of the last surviving trustee. The deed was prepared under the advice of a solicitor, who was the solicitor and friend of the stepfather and known to the plaintiff. Upon bill, nine years afterwards, by the settlor (who had remained unmarried) to have the settlement set aside, it was held that the deed was void.

Sir W. M. James said, “ In this case I do not think the settlement can stand upon the rules laid down in Prideaux vs. Lonsdale, 1 De G., J. & Smith, 433, and the other ⁷⁵ cases cited. It is very difficult indeed for any voluntary settlement made by a young lady so soon after she attains twenty-one, to stand if she afterwards changes her mind, and wishes to get rid of the fetters she has been advised to put upon herself.” But it is needless to multiply references to adjudged cases on this subject, nor is it necessary in the decision of this case to go to the length of holding that the donor must have, in such transactions, the benefit of competent and independent advice, as seems to be the rule in England; Allcard vs. Skinner, L. R., 36 Ch. D., 181; Rhodes vs. Bates, L. R., 1 Ch. App., 252; because it is the firmly settled law of Maryland that a gift or voluntary conveyance between living parties standing in the confidential relation of parent and child is prima facie void, and when assailed by the donor or grantor, can only be upheld if satisfactorily proved to have been the free, voluntary, and unbiased act of the person who made it.

Mr. Graham, the father of Mrs. Whitridge, is dead, and Mr. Bowdoin has retired from the trust; but other trustees have been appointed in their stead, and stand in their place. The deed being now assailed, the new trustees to uphold it are required to show, just as their predecessors would have had to do in a like case, that it was the free, voluntary, and unbiased act of the settlor, or, under the doctrine just alluded to, it must fall. The burden of proof is on them, precisely as it would have been upon those whom they have succeeded. Upon the advice of a most eminent and disinterested counsel —the late Mr. I. Nevett Steele — the new trustees called the plaintiff, Mrs. Whitridge, as a witness and she has testified at length.

Her testimony has been excepted to by the infant defendants, three of whom are her own children, represented by counsel assigned by the Court, and the others of whom are more remotely interested in ⁷⁶ the contingent remainders limited by the deed to the next-of-kin and heirs-at-law of George Brown, deceased. Upon her own offer she was not a competent witness, but she became competent when called and examined by the trustees, who are the real defendants. At the common law she would have been disqualified as a witness on account of her interest in the subject of controversy; but the Evidence Act of 1864, and its various amendments (Code, Art. 35, secs. 1 and 2.) have removed interest as a ground of objection to the competency of a witness; and unless she be excluded by some of the exceptions embodied in the Code, she is competent. Where a party to a contract or cause of action is dead, the living party cannot testify on his own offer, but may be examined if called by the opposite party to the cause.

Code, Art. 35, sec. 2. The death of her father, who was one of the parties to the deed, which is the subject of the pending controversy, excludes Mrs. Whitridge from giving tesmony as a witness on her own offer; but though thus disqualified she clearly was competent under section 2, Art. 35 of the Code, when, produced by the defendants— the trustees — and her evidence is properly before us. If there were any ground for a suspicion that Mrs. Whitridge and her husband who is now one of the trustees by substitution in place of her father, and, consequently one of the defendants, had by collusion caused her to be called, we should, even if treating her testimony as technically admissible, attach no value or importance to it whatever. But we find nothing in the record upon which such a suggestion, or even the shadow of such a suggestion, can be founded.- On the contrary, her evidence throughout bears the clearest possible impress of truth, accuracy, and candor; and is strongly fortified in several particulars.

Without going into a minute recital of all the evidence in the record, a brief reference to the leading and ⁷⁷ material circumstances preceding and accompanying the execution of the deed, will show most conclusively that that paper was far from being the free, voluntary, and unbiased act of Elizabeth Graham. There is nothing' justly to fasten the stigma of positive fraud upon any member of her family who participated in inducing her to sign the instrument; and the able lawyer, Mr. Frederick J. Brown, who drafted the deed, acted throughout with the most absolute good faith and integrity. But however honest may have been the motives which influenced her grandmother and one of her uncles, and ultimately her father, to take the part they did, their zeal to make their wishes, as reflecting the supposed or assumed intentions of her grandfather, the sole guide of her conduct in this transaction, over-mastered her volition and fettered her freedom of action. William H. Graham married one of the daughters of George Brown.

Two children were born to them, and when the younger, Mrs. Whitridge, was eighteen months old her mother died. Mr. Graham never married again. He, with his two children, resided in the Brown mansion. When the plaintiff was four years old her grandfather Brown died, and under his will she became entitled, on attaining twenty-one, to one-fourteenth of his vast estate.

She was reared with the greatest care and affection, and from infancy to womanhood her life was spent in the seclusion of her home. Her devoted attachment to her father and her reverence for her grandmother caused their wills to be the law of her actions; whilst the frequent inculcation of the duty of absolute obedience made submission to their judgments in all things, even the most trivial, the unvarying rule of her conduct. With no experience whatever >in matters of business, but little acquaintance with the outside world, and only a vague and indefinite notion as to the value of the property to which she would ultimately be entitled under ⁷⁸ her grandfather’s will, she was constantly reminded by her grandmother and her uncle George S. Brown, as she approached her majority, that her grandfather’s purpose and design had been that she should, immediately upon attaining twenty-one, settle her property in trust; though no particulars of the trust were mentioned to her at that period. The importance and necessity of executing it were continuously urged upon her, and unceasingly kept before her.

She was told that Mr. David M. Perine, who had been her grandfather’s adviser, and had drawn his will, and who was one of the trustees thereunder, was perfectly familiar with her grandfather’s wishes with reference to her share of his estate; and that if she respected those wishes she would promptly make a deed of trust upon the very day she became of age. Instructions had actually been given to Mr. Perine for the draft of a deed of trust before she reached her majority, but an accident deferred its preparation. She was further told by her grandmother and her uncle George S. Brown, that the reason her grandfather had not put her share in trust himself, was to give her “father the courtesy to elect to put it in trust or not. ” And this statement was repeated to her by Mr. Perine in the only business interview she ever had with him. He further said, as she has testified, “it was obligatory that I should put it in trust; it was my grandfather’s wish, and that he had put my aunt’s (Mrs. Greenway’s) in trust, and that it was only right it should be done.” Mr. Perine “used every influence that a lawyer could use to a young girl that was trying to protect the man that she was going to marry.” She was thus led to believe and was fully impressed with the conviction by these and similar statements, frequently made by her grandmother, and her uncle George S. Brown, that her interest in her grandfather’s estate was, in accordance with his wishes, to be placed by her in trust, if her father so elected when she attained twenty- ⁷⁹ one.

Ho such wish was in fact expressed in the will— she was left the property absolutely upon attaining twenty-one; but she had never seen the will. Trusting with implicit confidence in these statements, she seems never to have doubted the right of her father “to elect” to put her property in trust. In this condition of belief as to her father’s right over her property, she became engaged to her present husband during July, 1876.