Crue v. Caldwell

The opinion of the court was delivered by The Chanoellok.

This case may be disposed of upon the exception to the court’s direction to the jury to return a verdict for the plaintiff, and the assignment of error thereon.

The direction must have been given upon the assumption that the mortgage to Mrs. Caldwell’s daughters was a gift causa mortis.

To establish it as such a gift, it was necessary to show, not only that it was in fact a gift, but, also, that at the time it was given, Mrs. Caldwell apprehended the near approach of her death. These facts were controverted. The proofs concerning them were submitted to the jury, and it was after the jury had reported that it could not agree that the judge directed a verdict for the plaintiff. The first question presented by the objection to this direction is, whether the judge was justified in taking the case from the jury.

It is well settled that a jury should be controlled in its verdict by a peremptory instruction only where the testimony is of such a conclusive character as would compel the court, in the exercise of a sound legal discretion, to set aside a verdict if one were returned in opposition to such testimony. Montclair v. Dana, 107 U. S. 162 ; Central R. R. Co. v. Moore, 4 Zab. 824, 830; Ayerigg v. New York and Erie R. R. Co., 1 Vroom 460 ; Baldwin v. Shannon, 14 Id. 596, 602 ; Nuendorf v. World Mutual Insurance Co., 69 N. Y. 389 . Or, to put it more forcibly and more accurately, if the evidence be such that the court would set aside any number of verdicts rendered against it, the jury may be controlled. Baldwin v. Shannon, 14 Vroom 596 , 602; Denny v. Williams, 5 Allen 1 , 5; Brooks v. Somerville, 106 Mass. 271, 275 .

Testing the action of the trial court by this rule, it is not perceived that the evidence will justify its direction to the *219 jury. Concerning the questions of fact in issue, it was clearly conflicting and unsatisfactory. Janet Brown and Joseph and Margaret Wellwood testified that one night Mrs. Caldwell was so ill that she was not expected to live, and that late in the night Jacob R. Hardenburgh, a lawyer, was sent for, and that he and Mrs. Caldwell and her son and husband privately transacted some business which the witnesses supposed was the preparation and execution of the deeds and mortgage. John Caldwell, on the other hand, testified that the papers-were executed when his mother was in the full enjoyment of health, and that they were the outcome of his mother’s earnest desire and importunity that, in case she should die, her husband should have a life estate in the land described in the papers, and her daughters $500 each for their services in the bakery. He said that the papers were changed several times before he would consent to them.

Mr. Hardenburgh remembered that upon several occasions he prepared papers for Mrs. Caldwell, but he failed to recall that he ever drew any papers at her house late at night- or when she was ill. Upon examining the deeds and mortgage, he testified that he thought, judging from their appearance, that they had been drawn in his office; a word had been neatly erased and the date of the certificates of acknowledgment had evidently been left blank and afterwards filled in. The lapse of time between the date of the papers and the date of the certificates of acknowledgment, twelve days, was another indication to his mind that the papers were not both prepared and executed at one time. He was permitted to state that if he had been called late at night to the bedside of a person who was supposed to be dying, he would have drawn a will instead of two deeds and a mortgage.

Mrs. Caldwell, at the time of the trial, was seventy-eight years old.

It is quite evident that all her answers could not have left the impression that they were reliable. In one place, under a leading examination, she admitted knowledge of the execution of the deeds and mortgage, and in another place she asserted *220 that when they were made she was not in a condition to transact business, and that she had no remembrance of either seeing or signing them. In another part of her examination she testified that she lacked memory. She did not anywhere assert that when the papers were made she feared immediate death. Upon that point her testimony is that others feared that she was dying, and that she thought it best to secure her husband and daughters, so that if she died the daughters would be paid for their work in the bakery and her husband would have a life estate in the property.

The testimony of each witness was subject to criticism, especially when viewed in the light of the documents produced, and the circumstances surrounding the ease. The whole testimony was clearly of such a character as to produce different results in different minds. It was given twenty-five years after the transaction to which it-related, and after Mrs. Caldwell, for that length of time, had acquiesced in the situation made by the deeds and mortgage. It was undoubtedly of such character that the questions to be determined by it should have been left to the jury.

But the court was also in error in assuming that the mortgage could be regarded as a gift causa mortis, which the donor’s recovery revoked.

The deeds and mortgage were indisputably parts of a single transaction by which Mrs. Caldwell, without reserving a power of revocation, made a voluntary settlement in favor of her husband and daughters, through a contract with her son, by which, in consideration of the mother’s conveyance of -her undivided half of the property to him, he gave his father a life estate in the entire land and pledged the whole property to secure the payment of $500 to each of his sisters after his father’s death.

The settlement was completely executed. It differs in form only from a settlement by conveyance expressly in trust without power of revocation reserved, which, when once perfectly created, cannot be annulled without the consent of all the cestuis que trustent. Isham v. Delaware and Lackawanna R. *221 R. Co., 3 Stock. 227 ; Gulick v. Gulick, 12 Stew. Eq. 401; Perry Trusts 3104; 2 Spenc. Eq. Jur. 881; 2 Story Eq. Jur. 973.

Unless the entire settlement can be successfully assailed in equity and there set aside as the product of fraud, undue influence or mistake (Garnsey v. JMJuncly, 9 C. E. Gr. 243;. Perry Trusts 104), the several parts of it must stand. One part cannot be severed from the whole. But, in an attack in equity, after the settlor has acquiesced for more than twenty-five years in the settlement, and after the terms of the settlement have been entirely fulfilled, success can hardly be expected.

The judgment below should be reversed.

For affirmance—None.

For reversal—Ti-ie Chancellor, Chief Justice, Dixon, Garrison, Magie, Van S yokel, Brown; Cole, Mc-Gregor, Smith, Whitaker. 11.