author: Mr. Justice Scholfield Mr. Justice Sheldon :

text:
    The American Bible Society et al. v. Mary Price.

      Filed at Mt. Vernon January 27, 1886.

    1. Testamentary capacity—of the various elements affecting that question. Although a person may have sufficient mental capacity to attend to the ordinary business affairs of life, yet if he is insane with regard to subjects connected with the testamentary disposition of his property and the objects of his bounty, while influenced and controlled by such insanity, to such an extent as to be unable rationally to comprehend the nature and effect of the provisions of his will, he will be incapable of making a valid will.
    2. An understanding, however, of the nature of the business in respect of which the testator is about making a will, of the kind and value of the property devised, and the persons who are the natural objects of his bounty, and of the manner in which he wishes to dispose of his property, are evidences of testamentary capacity.
    3. But where there is an insane delusion in regard to one who is a natural object of the testator’s bounty, which causes him to make a will he would not have made but for such delusion, the will can no't be sustained; or where there is an insane delusion in regard to the duty or moral obligation of the testator to make a will in favor of a particular corporation or society, a will made as the result of such delusion can not be sustained.
    4. Eccentricities or peculiarities, or radical or extreme notions or opinions upon religion, colleges, education, or masonry and secret societies, will not necessarily render a man incapable of making a will, but they may. It is therefore no error to modify an instruction that such things will not incapacitate a person, by making it read they will not necessarily incapacitate.
    5. Same—opinions of persons not experts. The opinions of witnesses not experts, as to the sanity of a testator at the time of making his will, after first stating their observations upon which they are based, are competent evidence in a contest of a will.
    6. Pleading and evidence—sufficiency of bill to contest a will to permit proof in respect to testamentary capacity. A bill to set aside a will which alleges that the testator had become and was, at the time of the making of the will, of unsound mind and memory, is sufficient to question the maker’s testamentary capacity. The specific name applicable to describe the unsoundness of mind and the means which caused the same, or how it came about that such unsound mind and memory caused the writing to be so drawn and signed, are matters of evidence, and need not be alleged, or proven, if alleged.

      7. Under a bill charging that a testator, at the time of making a writing as and for his will, was of unsound mind and memory, evidence is admissible to show a want of testamentary capacity, from an insane delusion in respect to a child or object of his bounty; and when such evidence is admitted without objection, an instruction based upon it is not erroneous.
    8. Parties—contest of will—remote devisee having a contingent interest. The owner of an estate of $100,000, by his will gave his wife a life estate in the home place, and some personal property, and directed his executors to sell the whole of his estate and the property given his wife, at her death, and convert the same into money. He devised $2000 to his executors in trust, to invest the same and pay his daughter the interest or profits during her life, and after her death to pay such interest or profits to her child or children until they became of age, and at their majority, to pay to them the principal sum. If his daughter should die leaving no issue, the principal was to be added to his other estate, which he devised to two religious societies. The daughter filed her bill against the executors and others, to contest the validity of the will: Held, that her only child was not a necessary party.
    9. In such case it would be the duty of the trustees, who were made parties, to preserve the interest for whomsoever should ultimately be entitled to the same, and that they represented the owner ultimately entitled to the fund in their hands, and that such owner would be bound by the decree.
    10. Same—waiver of objection for want of a necessary party. If essential to make a person having a contingent interest in a devise of a sum of money, a party to a bill to contest a will, an objection to the omission to do so comes too late when raised in this court for the first time.
    11. New trial—in chancery—as to finding by a jury in a suit to contest a will. A new trial will not be granted in a proceeding in chancery to contest a will, unless the finding of the jury is clearly against the weight of the evidence. The verdict in such case stands the same as in ordinary cases at law.
    12. Amendment—of bill in chancery to admit evidence otherwise competent. Under the statute (sec. 37, Chancery Code,) the court may allow parties to-amend their bills, pleas, answers and replications, on reasonable terms, when the opposite party may not be surprised or unreasonably delayed. Such amendment is even admissible at the hearing to conform the pleadings to the evidence.
    13. Instruction—consisting of an argument. Where a part of an instruction is more an argument than the statement of any legal principle, it may be properly refused.
    14. Same—unnecessary modification not misleading. A modification of an instruction by the insertion of additional words therein, which are not calculated to mislead, is not error to reverse.
    15. Same—ignoring important element. On the contest of a will on the ground of an insane delusion on the part of the testator, an instruction was asked by the proponents of the will, to the effect that if the maker’s brain was not diseased to such an extent as to render him incapable of transacting his ordinary business, he was capable of making the will, and refused: Held, no error, as it wholly ignored the question of insane delusion.
    16. Same—whether based on evidence. On the contest of a will, by bill in chancery, if there is evidence properly admitted tending to prove that the testator was influenced by insane delusions in respect to the objects of his bounty, or of his duty to a church or religious society, to which he gave the great bulk of his fortune, this will be sufficient upon -which to base instructions, upon the hypothesis the evidence proves the existence of such delusions. The weight of the evidence on that question is not material, to justify such instructions.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Geo. W. Wall, Judge, presiding.
    Mr. George P. Strong, for the plaintiffs in error:
    A man capable of buying and selling property, renting land, settling accounts and attending to the ordinary affairs of. life, and understanding the business in which he is engaged, must be regarded as capable of making a valid disposition of his property by will. Meeker v. Meeker, 75 Ill. 260; Brown v. Riggin, 94 id. 560; Carpenter v. Calvert, 83 id. 70; Rutherford v. Morris, 77 id. 403; Stackhouse v. Horton, 15 N. J. 202; Potts v. House, 6 Ga. 324; Stewart v. Lespenard, 26 Wend. 255; Yoe v. McCord, 74 Ill. 45; McClintock v. McCord, 32 Mo. 419; Stevens v. Van Cleve, 4 Washb. C. C. 266; Snow v. Benton, 28 Ill. 306.
    A delusion which will destroy the capacity to make a valid will must be a false conception fixed in the mind pertaining to the disposition of his property, influencing the mind of the testator at the time the will is made, inducing him to make such a will as he would not have made but for the delusion. Redf. Am. Cases, 99, citing Dunham's Appeal, 27 Conn. 192.
    The opinions of non-professional witnesses, other than those attesting the will, are incompetent as testimony, unless founded on facts and circumstances detailed in evidence by them. Carpenter v. Calvert, 83 Ill. 69; Redf. Am. Cases on Wills, 105, and cases cited; Clapp v. Fullerton, 34 N. Y. 190; Stackhouse v. Horton, 15 N. I. 202; Harrison v. Rowan, 3 Washb. C. C. 580; Redf. Am. Cases, 68, 112; Dunham's Appeal, 27 Conn. 192.
    When a layman is examined as to facts within his own knowledge tending to show the state of the testator’s mind, he may characterize as rational or irrational the acts or declarations to which he testifies. But to render his opinion admissible, even to this extent, he must be limited to his conclusions from the specific facts he discloses. Clapp v. Fullerton, 34 N. Y. 190; Redf. Am. Cases, 105, 110; Stackhouse v. Horton, 15 N. J. 202.
    Mere opinions of witnesses are entitled to little or no regard, unless they are supported by good reasons founded on facts. Harrison v. Rowan, supra; Beaubien v. Cicotte, 12 Mich. 459 ; Brooks v. Townshend, 7 Gill, 10; Gibson v. Gibson, 9 Yerg. 330.
    Declarations of the testator made before the execution of the will are only admissible to throw light upon the condition of the testator’s mind at the time - he executed the will,— hence, only such as were made a reasonable time before or after making the will. Redf. Am. Cases, 487, citing Boylan v. Meeker, 4 Dutcher, 472.
    Mr. B. A. Halbert, for the executors of the will:
    A man capable of buying and selling property, settling accounts, collecting and paying out money, or borrowing or loaning money, must usually be regarded as capable of making a valid disposition of his property. Meeker v. Meeker, 75 Ill. 260; Rutherford v. Morris, 77 id. 409; Carpenter v. Calvert, 83 id. 62; Brown v. Riggin, 94 id. 569; Yoe v. McCord, 74 id. 33; Lilly v. Waggoner, 27 id. 395; Trish v. Newell, 62 id. 203; Titcomb v. Vantyl, 84 id. 374; Snow v. Benton, 28 id. 306; Duffield v. Morris, 2 Harr. (Del.) 375; Comstock v.
      Hadlyme, 8 Conn. 254; Kinne v. Kinne, 9 id. 102; Moore v. Moore, 2 Brad. Surr. 261; Stackhouse v. Horton, 15 N. J. Eq. 202; Blakely’s Will, 48 Wis. 294.
    Testamentary capacity amounts to nothing more than a knowledge by the testator of what he is about, and how he is disposing of his property, and the purpose so to do it. Hollinger v. Lynn, 37 N. J. Eq. 229; Sutton v. Sutton, 5 Harr. 269.
    The fact that a testator believes in witchcraft, spiritualism, or in any such notions as clairvoyance, divining and mineral rods, dreams and spiritual influences, are not sufficient to set aside a will rationally made. Chafin Will case, 32 Wis. 557; In re Smith, 52 id. 543; Brown v. Ward, 53 Md. 423; 1 Redfield on Wills, *79, note 9; Addington v. Wilson, 5 Ind. 137.
    • The abstract opinions of any witness, medical or not, are not of any importance as evidence. It must be brought to the test of the facts upon which it is founded. Stackhouse v. Horton, 15 N. J. Eq. 202; Lucas v. Parsons, 27 Ga. 593; Harris v. Betson, 1 Stew. (28 N. J. Eq.) 219; Rice v. Rice, 50 Mich. 454.
    As to what is undue influence, to avoid a will, see Rutherford v. Morris, 77 Ill. 398, and cases cited; Brown v. Riggen, 94 id. 569, and cases cited; McMahon v. Ryan, 20 Pa. St. 329; Eckert v. Flowry, 43 id. 46; Morris v. Stokes, 21 Ga. 552; Stackhouse v. Horton, 15 N. J. Eq. 202.
    To constititue undue influence in the procurement of a will, it must virtually destroy the free agency of the testator,—it must be purposely exerted towards the procurement of an unjust will. Jackman’s Will, 26 Wis. 104.
    When it is sought to set aside a will, notwithstanding the testator’s general sanity, on account of an insane delusion in reference to a particular person or matter, the specific ground should be stated in the bill. Benoist v. Mullen, 58 Ill. 324; Roe v. Taylor, 45 id. 486; Bitner v. Bitner, 67 Pa. St. 347; 1 Williams on Executors, 27-30, 41, 42; Fullick v. Alanson, 3 Hagg. Ecc. 527; Carmichael v. Reed, 45 Ill. 108. The allegations and proof must agree. Heath v. Hall, 60 Ill. 345.
    Setting aside eases of dementia, or loss of mind and intellect, the true test of insanity is mental delusion. Seaman’s Friend Society v. Hopper, 33 N. Y. 619.
    The mind, although weakened, is held sound, for the purpose of making a will, until there is a total loss of understanding, or idiocy, or the existence of delusion. Duffield v. Morris, 2 Harr. (Del.) 375.
    His insane delusions or hallucinations must have reference to persons or things,—not to opinion or faith. Goss v. Goss, 3 Humph. 278; Bonnard’s Will, 16 Abb. (N. S.) 128.
    No matter what the subject of the delusion is, it will not defeat a will unless it controlled and influenced the provisions of the will.' Boyd v. Eby, 8 Watts, 66; Duffield v. Morris, 2 Harr. (Del.) 575; Seaman’s Friend Society v. Hopper, 33 N. Y. 619; Rice v. Rice, 50 Mich. 455; Addington v. Wilson, 5 Ind. 137; Will of Cole, 49 Wis. 183 ; Roe v. Taylor, 45 Ill. 460.
    The evidence must be decisive that the belief amounted to an insane delusion. A belief based upon evidence, however slight, is not delusion. Stackhouse v. Horton, 15 N. J. Ch. 202; Clapp v. Fullerton, 34 N. Y. 105; Chafin’s Will case, 32 Wis. 557.
    An error in fact, or a prejudice, or suspicion, is not an insane delusion. Hall v. Hall, 38 Ala. 131; Seaman’s Friend Society v. Hopper, 33 N. Y. 202; Boardman v. Woodman, 47 N. H. 120; Trumbull v. Gibbons, 2 Zabriskie, 117.
    Where the occasion for anger or distrust is real, and not a figment of the imagination, if the resentment or distrust is not founded wholly on delusion, a testator may, if he choose, disinherit those who have natural claims upon his bounty. In such case there is no ground for setting aside the will, as it can not be said to be the offspring of delusion. Hallinger
      v. Syme, 37 N. J. Eq. 230; Dale v. Dale, 36 id. 282; Trumbull v. Gibbins, 2 Zabriskie, 117; Wintermuth v. Wilson, 28 N. J. Eq. 437.
    All the legatees in the will were necessary parties. Brown v. Riggen, 94 id. 670.
    Messrs. G. & G. A. Koerner, for the defendant in error, after stating and discussing the evidence as showing general insanity, contended that it was necessary to prove it in this case, as the proof showed the testator was so infatuated on the subject of religion as to affect his mind to such an extent as to obliterate his human affections, and destroy his moral feelings.
    It is wholly immaterial from what quarter undue influence comes, which destroys free agency. Potts v. House, 6 Ga. 924.
    The investigation in such case may take the widest range. All that is peculiar in temperament or modes of thought, the idiosyncraeies of the man so far as susceptibility is thereby shown, present proper considerations for the jury. Shailer v. Bumpstead, 99 Mass. 112.
    A strong circumstance to show undue influence would be the exclusion, by a testator, of a daughter with whom he had no difficulty, and was in need of his aid. Reynolds v. Root, 62 Barb. 250.
    An influence may often be maintained through practicing on the religion or fear of a party. Norton v. Rally, 2 Eden, 286.
    The unnatural character of a will is always to be considered to show either incapability or undue influence; yet, of itself, it is probably never sufficient. Kevil v. Kevil, 2 Bush, 614.
    All men having an opportunity of knowing the testator were competent to give their opinion, the same as experts, upon the state of mind of the deceased. Jarman on Wills, chap. 3, p. 115 ; Rutherford v. Morris, 77 Ill. 403; Meeker v. Meeker, 75 id. 268; Roe v. Taylor, 45 id. 385; Buchanan v. McLenan, 105 id. 59.

      As to partial insanity, reference is made to Maudsley’s work, 115; 1 Redfield on Wills; 68, 69, 71, 72.
    As to insane delusions and their effect, see Taylor’s Med. Jur. 626; Goss v. Goss, 3 Humph. 278.
    The legal title to the money bequeathed being in the executors, as trustees, it wras sufficient to make them parties. 109 U. S. 32.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Mary Price exhibited her bill in equity in the circuit court of St. Clair county, to contest an instrument in writing, probated in the county court of that county on the 4th day of November, A. D. 1878, as the last will and testament of Isaac Foreman, who died on the 28th day of October, A. D. 1878. She charged in her bill that “the said Isaac Foreman, at the time when said pretended will is supposed to have been signed by him, was of a very advanced age, and that his mind had become greatly impaired by age, and that he had become, and was at that time, and had remained to the time of his death, of unsound mind and memory; that owing to his impaired mind, and also to his highly excited feelings in all matters belonging to religious subjects, he was very liable to be unduly influenced by others, and that his mind had been, when yet not entirely impaired, purposely directed and unduly influenced, by designing persons, to make such a disposition of his property as he actually did in this instrument, so that although his mind had become so impaired as to incapacitate him to make a will, this idea of making these bequests to wealthy corporations and leaving his nearest kin unprovided for, remained fixed in his mind. ” Answer was filed denying these allegations, and insisting that the instrument was the last will and testament of Isaac Foreman, deceased, and that it was valid, and in full force and effect. Replication was filed to the answer, and thereupon an issue at law was made up by the court whether the writing produced was the last will and testament of Isaac Foreman, deceased; and this issue being submitted to a jury! they returned their verdict that the writing produced was not the last will and testament of Isaac Foreman, deceased. Motion, in writing, was made by the proponents of the will to set aside the verdict and grant a new trial, but this motion was overruled by the court, and decree was then rendered in conformity with the verdict. The case comes before us on writ of error prosecuted by the proponents of the will.

Isaac Foreman, at the time of his death, was seventy-four years of age, the owner of a thousand or more acres of valuable land in St. Clair county, and he was also possessed of government bonds and money amounting to something near $40,000. He left a widow (Rebecca) who renounced the provisions of the will, and an only child, the contestant, who was .a married woman, and comparatively, if not entirely, destitute of property. By the terms of the instrument contested, the testator devised to his wife the homestead occupied by him at the time of his death, consisting of a half section of land, with the exception of one forty-acre tract, which had been laid off into town lots, during her natural life, his household and kitchen furniture, the stock on the farm, and farming utensils. He directed that his executors sell the whole of his estate, real and personal, not devised to his wife, and the tract of land devised to his wife, after her death, and convert the same into money. He devised $2000 to his executors, in trust, to safely loan or invest the same, and pay to the contestant the interest or profits thereof, annually, during her life, and directed that after her death they pay such interest or profits thereof, annually, for the maintenance and education of her child or children, until he, she or they became of age, and then that they pay the principal sum to him, her or them. In the event the contestant should die leaving no child or children surviving her, he devised the said sum as he did the balance of his estate. He devised the whole of the balance of his estate, two-thirds to the American Bible Society, and one-third to the Missionary Society of the Methodist Episcopal church. Numerous witnesses'were examined by the respective parties, on the trial, touching the sanity of the testator at the time of the execution of the will.

The court, on behalf of the contestant, instructed the jury as follows:

“If the jury believe, from the evidence, that although Isaac Foreman had sufficient capacity to attend to the ordinary business affairs of life, yet that with regard to'subjects connected with the testamentary disposition and distribution of his property and the natural objects of his bounty he was insane, and that while laboring under such insanity he made the will in question, and that in making it he was so far influenced or controlled by such insanity as to be unable rationally to comprehend the nature and effect of the provisions of the will, and wrqas thereby led to make the will as he did, then the jury must find the will not to be the will of the said Isaac Foreman.
“An insane delusion is a fixed and settled belief in facts not existing, which no rational person would believe. Such delusion may sometimes exist as to one or more subjects. And if the jury believe, from the evidence in this case, that Isaac Foreman was laboring under such insane delusions upon subjects connected with the testamentary disposition of his property and the natural objects of his bounty when he made the will in question, and was thereby rendered incompetent to comprehend, rationally, the nature and effect of the act, and that but for such delusions he would not have made the will as he did, then the jury should find against the validity of the will.”

And the court, at the instance of the proponents, further instructed the jury as follows:

“1. The court instructs the jury, that if they believe, from the evidence, that Isaac Foreman, at the time he signed the paper in dispute, had mind and memory sufficient to transact his ordinary business, and that when he made the will he knew and understood the business he was engaged in, then the jury should find said paper writing to be the will of said Foreman.
“2. The court instructs the jury, that the owner of property who has capacity to attend to his ordinary business, has the lawful right to dispose of it, either by deed or by will, as he may choose, and it requires no greater mental capacity to make a valid will than to make a valid deed. And if such an owner chooses to disinherit his heir, or leave his property to ■some.-cbaritable object, he has a legal right to do so, and such disposition of his property is valid, whether it be reasonable or unreasonable, just or unjust; and the reasonableness, or justice, or propriety of the will are not questions for the jury to pass upon. If, therefore, the jury believe, from the evidence, that when he executed the paper in dispute, Isaac Foreman had capacity enough to attend to his ordinary business, and to know and understand the business he was engaged in, then he had the right and the capacity to make such a will, and the jury should find the paper in dispute to be the will of said Foreman. The court instructs the jury that even if they -find, from the evidence, that Isaac Foreman had, during some portions of his life, eccentricities or peculiarities, or even an insane delusion, or partial insanity on the subjects of religion, or masonry, or education, or any other subject, yet if they find, from the evidence, that at the time he made the will in question he had sufficient mind and memory to understand his ordinary business, and that he knew and understood the business he was engaged in, and intended to make such a will, the jury should find said will to be the will of said Isaac Foreman.”

The proponents then asked the court to still further instruct the jury as follows, omitting the words in italics; but the court modified the instruction by adding the words .in italics, and in this form gave it to the jury:

“7. The court instructs the jury, that eccentricities, or peculiarities, or radical or extreme notions or opinions upon religion, colleges, education, or masonry and secret societies, will not necessarily render a man incapable of making a will ; and if the jury find that in making the will in dispute, Isaac Foreman had sufficient mind and memory to understand the business he was engaged in when he made the will, then the jury should find in favor of said will, though said Foreman may have had eccentricities and peculiarities, or extreme notions and opinions upon religion, colleges, education, or masonry or secret societies.
“4. The court instructs the jury, that in order to make a valid will it is only necessary that a man shall have mental capacity sufficient for the transaction of the ordinary affairs of life, and possessing this, though he may be feeble in mind and body from sickness or old age, he has the legal right to dispose of his property just as he pleases, without consulting either his family or his acquaintances. And if the jury believe, from the evidence, that when he executed the paper in dispute, Isaac Foreman knew what he was doing, and executed it as his will, understanding its nature and effect, and that at the time he had sufficient mind and memory to transact his ordinary business, such as buying or selling or renting property, or collecting or paying out money or settling accounts, then the jury should find the-paper in dispute to be the last will and testament of said Isaac Foreman. ”

The proponents also further asked the court to instruct the jury as follows:

“The court instructs the jury, that insanity is a disease of the brain, affecting the mind to such an extent as to destroy a man’s capacity to attend to his ordinary business, or to know and understand the business he was engaged in when making a will. And unless the jury find, from the evidence, that Mr. Foreman’s brain was diseased to such an extent that he did not have mind and memory- sufficient to enable him to transact his ordinary business, such as renting his land, settling accounts, buying and selling property, and to know and understand the business he was engaged in at the time he made the will in dispute, the jury should find that said will is the will of said Foreman. ”

Proper exceptions were taken by the proponents, at the time, to the giving of the contestant’s instructions, to the modifying of the instructions as above, and the refusal to give this last instruction, and errors are thereupon assigned, bringing these rulings before us for review.

The instructions given at the instance of the proponents are claimed to be erroneous, because insane delusion, in respect of the contestant, is not specifically charged in the bill. It is contended that the jury are directed by these instructions to find a verdict upon an issue not made by the bill and answer. The bill, it has been seen, charges that the testator had become, and was at the time of the making of the will, of unsound mind and memory, thus, in effect, simply putting in issue his testamentary capacity, which, by our statute, is. defined to be that of being of a prescribed age, and “of sound mind and memory. ” The only material question, manifestly, under this allegation, was whether the writing produced was the product of an unsound mind and memory. The specific name applied to describe that unsoundness, the means whereby the unsoundness was caused, or how it came about that the unsound mind and memory caused this writing to be drawn and signed, were matters of evidence that need not be alleged, and, if alleged, need not be proved. In any view, if allegations in these respects misled the proponents of the will, they should, when evidence of unsoundness of mind not alleged was offered, have made that specific objection, so that the court could, if necessary, have allowed the requisite amendments, and have given such extensions of time as were necessary to allow all par ties, ample opportunity to meet the issues. By section 37 of our Chancery act, (1 Starr & Curtiss’ Stat. p. 409,) the court may permit parties to amend their bills, pleas, answers and replications, on such terms as1 the court may deem proper, so that neither party be surprised or unreasonably delayed thereby; and no amendment shall be cause for a continuance, unless the party to be affected thereby, or his agent or attorney, shall make affidavit that in consequence thereof he is unprepared to proceed with the trial of the cause, etc. And so it has been held that amendment is admissible at the hearing to conform the pleadings to the evidence and avoid a variance. Moshier v. Knox College, 32 Ill. 155 ; Farwell v. Meyer, 35 id. 40. See, also, Erickson v. Rafferty, 79 Ill. 209; Downey v. O’Donnell, 92 id. 559. We perceive no error in the principles of law enunciated in the instructions.

In Roe et al. v. Taylor, 45 Ill. 490, in considering instructions then before the court, it was said: “An understanding of the nature of the business about which- the testator was engaged, of the kind and value of the property devised, and of the persons who were the natural objects of his bounty, and of the manner in which he wished to dispose of his property,—all these are evidences of testamentary capacity, unless, as the court very properly said, the testator was affected with some morbid or insane delusion as to some one of those natural objects of his bounty,”—thus, conclusively, by implication, saying that if the testator was affected with a morbid or insane delusion as to one of those natural objects of his bounty, it would affect and destroy his testamentary capacity. And in Meeker v. Meeker, 75 Ill. 266, it was said: “The derangement or imbecility, to incapacitate the person from making a valid will,- must be of that character which renders him incapable of understanding the effect and consequence of his acts. It need not be that total derangement or aberration of the mental faculties which prevents the party from reasoning correctly on all subjects, nor yet, at all times, the power, upon correct premises, to arrive at a correct conclusion ; hut it is that want of capacity which prevents a person from reasoning correctly, and from understanding the relation of cause and effect in ordinary business affairs. ” Carpenter v. Calvert, 83 Ill. 62, and Brown v. Riggin, 94 id. 568, follow this ruling.

But it is to be observed this is directed to the question of insanity and testamentary capacity, as a general question. Obviously, if there be morbid or insane delusion in the mind of the testator as to one of the natural objects of his bounty, its effect upon his capacity to reason in regard to that object of his bounty could in nowise be measured by his capacity to reason upon subjects unaffected by that delusion. It was not intended. to decide that no testator’s sanity could be questioned upon the ground of delusion, nor was it intended to decide that monomania is not recognized as a species of insanity affecting legal responsibility. It was said, on the authority of Jarman on Wills, in Trish et al. v. Newell et al. 62 Ill. 205, that the question in eases of this kind is: “Were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will, ” and “that in determining the question, the competency of the mind should be judged of by the nature of the act to be done, from a consideration of all the circumstances of the case. ” This, also, by implication, very clearly excludes from the list of those competent to make a will those laboring under insane delusion and monomania, for in case of either, in respect of the natural objects of the testator’s bounty, he can not know and understand the business in which he is engaged. In Searle v. Galbraith, 73 Ill. 272, we recognized that there may be insanity without the general business capacity of the individual being affected thereby. And we have held, in criminal cases, the defence of insanity is sufficient where it is shown that, as to the alleged criminal act, the defendant did not know right from wrong. Hopps v. The People, 31 Ill. 391.

Beyond all question it is within the previous rulings of this court, and abundantly sustained by the rulings of other courts of the highest respectability, that where there is insane delusion in regard to one who is an object of the testator’s bounty, which causes him to make a will which he would not have made but for that delusion, such will can not be sustained; and so, also, where there is insane delusion in regard to the duty or moral obligation of a party to make a will in favor of a particular individual, corporation or society, and a will is made as the result of that insane delusion, it can not be sustained. 1 Redfield on Wills, (3d ed.) 72, 74, et seq. and notes; 1 Jarman on Wills, (5th ed.) 38, et seq. and notes; Buswell on Insanity, secs. 13, 381.

We are unable to perceive any substantial error in the modification of the instructions asked by the proponents. The word “necessarily, ” in the seventh instruction, simply precludes the idea that in no case could the circumstances recited be evidence of insanity. They are not necessarily insane acts, but they may be. The whole of this part of the instruction is more an argument than the statement of any legal principle, and it might very properly have been stricken out on that ground. The words, “understanding its nature and effect, ” in the fourth instruction, while they may not have been necessary, certainly could not mislead. If the testator did not have mind enough to understand the nature and effect of the instrument purporting to be his will, it certainly could not be his will. The instruction refused omits the idea of delusion entirely, and all that it contains that could be of advantage to the proponents is embodied in other instructions that were given.

Again, the point is urged that there is no evidence on which to predicate the instructions given on behalf of the contestant. We think differently. There is evidence of delusion, both in respect to the contestant and the duty or obligation of the testator to give his property to the societies named in this instrument. On this point the weight of that evidence is not material. If there was evidence to go to the jury for their consideration in respect of these delusions, then it was proper to instruct them as to the law, on the hypothesis that they found that the evidence proved what, in the opinion of the court, it tended to prove. Houser testified that in talking in class meeting about his children and his family,—and this included the contestant,—he said he was afraid of his life. There is no pretence, in the evidence given to the jury, that there was any foundation in fact for this fear. The evidence rebuts the idea that he was at any time in danger of violence from any of his children or any member of his family. Boynton testified that in speaking of his intention in regard to the making of his will, and the contestant, he said his child was well provided for. The proof shows that she was destitute of property, or nearly so. William Begole testified that the testator told him, time and again, that he was harassed with agents for churches, orphan asylums, colleges, schools, and bible and missionary societies, for money,—that they harassed him all the time. Bowler testified that the testator told him that he had been greatly harassed and disturbed, and his mind injured, by solicitations to give money to religious institutions, and for benevolent purposes,—that the inducements held out to him to make such gifts were, “that his future happiness depended upon his liberality.” Martha J. Holliday testified that “he said he intended to place his money where it would roll up, and roll up, and roll up, until the day of judgment, to work for old Isaac Foreman. ” There is other evidence of like tendency, but this, we think, is sufficient to show that there was evidence before the jury upon which to predicate the instructions. That there was other evidence tending to rebut this, is unimportant. Its effect was fairly a question for the jury.

But it is contended, waiving the preceding objections, the verdict was clearly contrary to the' evidence,- and it should therefore be set aside. The rule is, on questions of this kind, the finding of the jury is conclusive, unless clearly against the weight of the evidence, (Brownfield v. Brownfield, 43 Ill. 147, Meeker v. Meeker, supra, Carpenter v. Calvert, supra,) and in this respect they are put upon the same footing with cases at law. Long et al. v. Long et al. 107 Ill. 210.

There are some circumstances, as to which there is no controversy, strongly against the proponents of the will. The testator had two other daughters who reached womanhood, but who died before tliis will was executed; but the contestant was his favorite, and the only child alive at that time. Several of the witnesses testify to the affectionate and dutiful conduct of the contestant towards the testator. Among others, Little says she ivas a dutiful daughter,—always took her father’s part in all the trouble they had about the house, which was frequent; that the house ivas divided,—the old lady and the two younger daughters against Mary, (the contestant,) “and her father,” and that the testator frequently said to witness that it would be impossible for him to live at home if it was not for her. The testator was a man of ample means, as has been seen, his property amounting, in the aggregate, to at least $100,000. It was chiefly productive property, consisting in great part in farming lands, yielding rent, and in interest bearing government bonds. In addition to this there was an income to the family, of which he seems to have had control, from several hundred acres of farming lands belonging to his wife. Notwithstanding all this, the testator neglected to give this favorite child even an average common school education, clad her, at best, very commonly, and it may be, as some of the witnesses say, meanly; restrained her from the enjoyment of society adapted to her age and proper position in life, and exacted of her heavy menial labor,—sometimes that of a field hand. She married, finally, a man whom the testator disliked, it is true, very much, but that does not seem to have prevented him from exacting of her, nor her from performing, the same heavy menial labor after her marriage as before. The evidence shows that the greater part of the time after the contestant’s marriage, and until the testator’s death, she remained with him, doing house work, milking cows, and sometimes hoeing potatoes, helping to load wheat, hay, etc. The testator was informed by his lawyers that he could, through trustees, settle his property upon his child in such way that her husband could not spend or control it. It is claimed that he relied upon his wife, who had an estate of some $30,000 in value, in her own right, to provide for the contestant; and the witness who drew the will testified that he said that if the contestant conducted herself properly, her mother would provide well for her. But her mother had not then done so, and he could not know that she would do so. If a sane mind conceived that it was desirable to put his property where it would roll up until the day of judgment, to work for him, why would it not also conceive that it was equally desirable to put her property where it would roll up until the day of judgment, to work for her? We find it difficult to believe that an egotism which is so extravagant and distorted that it regards only self in this life and in the life to come, that wholly disregards and ignores the natural claims of a needy child, known to be worthy, and dutiful, and loving, and the affections ordinarily implanted in the heart for such a child, can consist with a mind entirely free of disease causing morbid delusion.

There was evidence of delusions in other respects than those to which we have referred, that we regard as competent as tending, in some degree, to prove permanent mental impairment, though much of it, we concede, very slightly, and if considered alone it would be of but little value. The evidence of delusions and of unusual conduct at different periods throughout the testator’s life, tends to show that they were the result of permanent derangement, rather than of ignorance and the Want of reflection, and it was therefore properly admitted. There was also evidence that the testator was much of his time worrying and fretting in regard to matters about which he was under delusion.

It was competent to admit in evidence the opinions of witnesses who were not experts, touching the testator’s sanity, first stating their observations on which their opinions were based. (Roe v. Taylor, 45 Ill. 485; Upstone v. The People, 109 id. 175.) A number of such witnesses were examined oh each side, but there is this difference in favor of the contestant : most of the neighbors of the testator—those who had known him longest and most intimately—testified that they believed him to have been insane at the time the will was executed. With but a few' execptions, those who testified that they believed the testator to have been sane at the time he executed the will, were persons seeing him but occasionally, and having but casual business transactions with him. We concede that the observations of the witnesses stated as the basis of their belief that the testator was insane, are, in very many instances, inconclusive and unsatisfactory, and in even more instances the witnesses simply say that he acted “funny, ” or “queer,” or “strange,” without the ability to recall, or, at all events, to describe; the acts thus characterized. Much reliance, of course, can not be, and we assume was not, at the trial, placed on this evidence; still, there is this to be borne in mind,—the conclusion drawn from observation by illiterate persons unaccustomed to describe what they see, when relating to a matter of which they are competent to judge, is usually more accurate than their description of that from which their conclusions are drawn. Often all persons see and know certain persons, animals or things to be different from each other, without pausing to note and fix in the memory the entire extent of the difference, and so arrange it in the mind that they can describe it to others with such accuracy as to make them see it with the same distinctness that they did themselves. With illiterate or untrained minds this inability is made greater by a want of, or an incapacity to accurately use, the appropriate words. And the novelty of the position of a witness not infrequently embarrasses persons in recalling and in using descriptive language with that readiness and accuracy they would under different circumstances.

Experts gave their opinions on both sides—one that the testator.was sane, the other that he was insane. The family physician of the testator, without professing to be an expert, added his opinion to those of the neighbors who believed that the testator was insane, limiting it to matters of religion and matters in which the testator’s loves and hates were involved.

We have not recapitulated the evidence, of which there is a great deal, in favor of the proponents of the will. A clear preponderance of the evidence shows that the testator’s general' business capacity was equal, if not superior, to the average of mankind. He was, all his life, the owner of what may be considered a large property,—not requiring, perhaps, extraordinary ability, but yet good judgment, prudence and diligence for its successful management. And this property was not only preserved, but’ the amount was gradually augmented by him. Ho one, during his life, thought it necessary to take steps to have a conservator appointed. The validity of no business transaction of his during his life was ever questioned on the ground of his insanity, and some persons of excellent judgment, with fair opportunities of knowing the condition of the testator’s mind, and of undoubted integrity, have given their opinion that the testator was sane throughout life. This business capacity, however, may co-exist with the delusion here charged. It may be that a mind, as to one subject or one individual, is, by reason of delusion, incapable of reasoning and judging, while as to most, or indeed all, other subjects or persons there is no delusion, and it is hence capable of reasoning and judging.

We' have not deemed it necessary to reproduce every circumstance detailed in the evidence, tending to sustain the verdict beloiv. We have ..simply referred to what we deemed essential to. showfhat there' was’-evidence sustaining the ver- • dict, and th'at the question of the testator’s sanity or insanity was, under the evidence', so clearly within the province of the ■jury to determine, that their determination ought not to be set aside. We may not be so entirely convinced as to be free of misgiving or doubt, that the writing produced is not the .will of Isaac Foreman, but, on the other hand, we can not say we are clearly satisfied that the finding of the jury is not sustained by the evidence.

- An objection is pressed, with some earnestness, that Ida ; Price, a daughter, and' how the' only child of the contestant, is not made a defendant. The objection has tw.o answers:

First—Ida Price has no present interest in any property affected by this litigation. The will, we have seen, directs that the proceeds arising from the loan or investment of $2000 shall be paid to the contestant during her lifetime; that upon her death, if she shall leave a child or children surviving her, the same shall be paid to him, her or them, until the age of majority is reached, when the $2000 shall be paid also. Until the death, therefore, of 'the contestant, it can not Be known with absolute certainty who, if any, shall be her surviving child-or children. Ida Price, we concede, has a contingent future interest in the devise, but no present interest. The title is in the trustees, and th’e duty is imposed upon them to protect and preserve this interest for whomsoever shall be ultimately entitled to it. They are parties to the suit, and they stand for and represent, in this litigation, the ownership ultimately entitled to this fund, and such ownership is bound by their representation. Story’s Equity Pleadings, sees. 140, 141, 145, 150; Hopkirk v. Page, 2 Brock. 42; American Bible Society v. Price, 110 Ill. 61.

Second—The existence of Ida Price is not brought to the attention of the court by any pleading or motion made in the court below. Such a person appears and testifies as a witness on the trial, and thus alone discloses her existence and relationship to the contestant, and thereby her future contingent interest in the $2000, the proceeds of w'hich are devised to the contestant.

In the written motion, for a new trial'it:is not urged that Ida Price should have been a party. If it were essential to make her a party, the objection ought to have been made in the court below. Since neither the pleadings, the decree nor the motion for a new trial show any ground for the objection, even if tenable if made in apt time, it is now too late. It can not be raised for the first time in this court.

The decree is affirmed.

Decree affirmed.

Mr. Justice Sheldon :

The testator had his eccentricities of character, but taking the whole evidence together, it shows most clearly, in my judgment, that he had full testamentary capacity. . . ,r ■ :

This case, when first considered, was assigned to the late Mr. Justice Dickey to prepare the opinion, but no opinion having been prepared in his lifetime, the case was re-assigned at the November term, 1885.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Portia Gage v. William M. Bailey et al.

      Filed at Ottawa January 25, 1886.

      1. Tax deed—of its validity when made after redemption money deposited. Where land sold for taxes is redeemed within the time required by law, by depositing with the proper officer a sum double the amount bid at the tax sale, and sufficient also to cover all costs, expenses and fees required by law, any deed thereafter issued on such sale is absolutely void.
    2. Redemption ebom tax sale—deficiency in the amount deposited. Where the owner of land attempts in good faith to redeem the same from a tax sale before the time of redemption expires, but the sum deposited for that purpose, by an honest mistake, is insufficient, relief will be granted, and the tax deed set aside on equitable terms.
    3. Same—subsequent taxes paid, need not be deposited. Where the owner of land sold for taxes has paid all the subsequent taxes, it will not be necessary for him, in redeeming, to deposit with the county clerk money for such subsequent taxes.
    4. Same—fees for publication allowed to holder of certificate. The statute allows the holder of a certificate of purchase given on tax sale, a fee for publication of notice of the purchase, etc., not exceeding one dollar for each tract or lot, but does not necessarily require the payment of that sum. It may be less, but not more.
    5. Demubbeb to a pleading—what it admits. A demurrer to a bill in chancery admits all its allegations of fact. So where a bill to set aside a deed for land sold for taxes, alleges that no such notice as the statute requires was given before taking out the tax deed, either by the purchaser or his assignee, a demurrer to the same admits such allegation; and if the demurrer is overruled, and the defendant abides his demurrer, the tax deed will be set aside on equitable terms. *
    6. Costs—setting aside tax deed. Where a tax deed is wrongfully taken out, costs are properly awarded against the defendant in a decree setting it aside as a cloud on the title of the complainant.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant.

      Messrs. Peckham & Brown, and Mr. John P. Altgeld, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

There can be no controversy as to the facts of this case, as they all appear by admission on demurrer to the bill. The bill was brought by the surviving trustees under the will of Sarah B. Baton, deceased, against Portia Gage, and the objeet was to have the tax deed issued to defendant for the lands in controversy, declared null and void, and removed as a cloud upon the title that is in complainants under the will of the testatrix. The tax deed is dated August 30, 1878, and is recorded in the county where the lands are situated. It is alleged the tax deed is void, first, because neither the purchaser at the alleged -tax sale, nor his assignee, (defendant herein,) ever gave such notice as is required by law to be given by the purchasers at the tax sale, or is essential before a tax deed can lawfully issue to such purchaser or his assignee; and second, because complainants, by their agents, on the 23d day of June, 1877, before the time allowed by law for the redemption from such tax sale had expired, and while the certificates of sale were outstanding, and before any deed was issued, redeemed at the office of the county clerk, according to the provisions of the statutes, the land in controversy, from such tax sale, by depositing with the clerk, for such redemption, for the benefit of the holders of the certificates of purchase, the sum of ten dollars, which sum was a full and sufficient amount required by law for the redemption of the land from such tax sale, being the amount originally bid and paid at the tax sale, with one hundred per cent penalty, and all costs, expenses and fees required by law. It is alleged as a further ground of relief, the attempted redemption was made in good faith, under the confident belief the sum deposited was sufficient in law, as complainant’s agents were advised by the county clerk it was, for the redemption of such land, and if it shall be found the sum so deposited was not sufficient to effect the redemption under the statute, complainants offered to pay defendant any deficit that may be found to be due, with all proper costs and interest, as may be found just and equitable by the court.

The law is, no purchaser, or assignee of such purchaser, shall be entitled to a deed for any land bought at a tax sale, until he shall have complied with the conditions mentioned in section 216, chapter 120, of the Revised Statutes of 1874. The bill in this ease charges no such notice as the statute requires was given before taking out the tax deed by defendant, either by the purchaser or by the assignee. That allegation the demurrer admits to be true, and assuming it is true no such notice was given, the tax deed would be inoperative, and might be set aside on such terms as the court might deem equitable.

But the decision in this ease may be based on the sole ground the land had, in fact and in law, been redeemed from the tax sale prior to the issuing of the deed to defendant. It is so distinctly alleged in the bill, and the demurrer admits the truth of the allegation. It is said it appears from the exhibits attached to the bill, the sum deposited was not sufficient in amount to redeem the land from the tax sale. No such thing appears from the exhibits showing the amount required to redeem. The objections taken were, first, nothing was deposited for taxes paid by the purchaser. That was not necessary in this particular case. The certificate made by the clerk shows such taxes had been “paid by owner. ” Second, it is said the advertising fees were insufficient. Only one dollar was allowed for advertising, and it is insisted as there were two tracts of land, one dollar for each tract should have been deposited. The statutory requirement is, the fee for publication shall not exceed one dollar for each tract or lot. It does not provide for the payment of one dollar for each tract in every instance. It may be less, but can not be more. There is nothing in the exhibit, •then, treating it as a part of the bill, that conflicts with the positive allegation the sum deposited is all that is required by law to redeem the lands from the tax sale. Of course, if the lands had been redeemed from the tax sale in accordance with the provisions of -the statute before the time for redemption had expired, any deed that might thereafter be issued would be absolutely void, and of no validity.

But if the sum deposited was insufficient for the redemption of the lands from the tax sale, then defendant should have answered the bill, and challenged the truth of that allegation. Had he done so, the court could have ascertained what deficit remained, and under the rule declared in Gage v. Scales, 100 Ill. 218, if it should be found the attempted redemption was made in good faith, relief might have been granted on such terms as should be thought to be equitable and just. That was not done, but defendant chose to admit on the record the sum .deposited by complainant was sufficient, under the statute, to effect the redemption. After such admission upon the record, the court was under no duty to inquire whether any terms should' be imposed on which relief should be granted. That question defendant did not raise for herself, and certainly the court was under no obligation to consider it. The equities appear to be so plainly with complainants, the case need not be further discussed.

As respects costs, it may be said it was no fault of complainants that defendant wrongfully took out a tax deed on their property, and the circuit court very properly awarded costs against defendant.

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    James Mitchell et al. v. Seth T. Sawyer et al.

      Filed at Mt. Vernon January 25, 1886.

    1. Fraudulent conveyance—giving mortgage for-too large a sum. If a mortgage is given by a debtor on land for too large a sum, for the purpose of protecting the property from creditors, it will be fraudulent and void as to them.
    2. Same—on secret trust for use of grantor. If a debtor conveys land to another under a secret trust connected with the transaction, that the grantor is still to have the beneficial enjoyment, in whole or in part, of the property conveyed, such secret trust will render the deed fraudulent and void as to creditors.
    3. Evidence—whether party hound by the testimony of his own witness. While a party may not discredit his own witness by direct impeaching testimony, he is not bound, necessarily, by all the testimony his own witness may give. So where he makes an adverse party his witness, he will not be bound by his conclusions, when the facts and circumstances detailed by him show the contrary.
    4. Same—conclusions of witness as against inferences from facts shown. The statement by a witness that a transaction was upon good consideration and all in good faith, is but a conclusion, as, what he may deem honest and fair the law may pronounce fraudulent as to creditors; and such statement is of but little weight as against facts and circumstances which show the contrary.
    5. Witness—competency—objection obviated by stipulation. On bill to set aside a fraudulent conveyance after the death of the grantee, and before making his heirs or devisees parties, depositions were taken in the case, one of which was that of one of the complainants. This was objected to as inadmissible against those defending as executors and trustees and devisees of the grantee; but after they, were made parties and had answered, a stipulation was filed that the deposition taken should apply to the defendants so brought into the case: Held, that this obviated all the objections to the depositions.
    6. Do web—homestead—effect of decree setting aside fraudulent conveyance. A decree, on bill by a creditor, setting aside a conveyance of land as fraudulent, and subjecting the same to sale, without any provision as to the dower and homestead of the wife of the deceased grantor, is not erroneous for that omission. Such rights are not affected by the decree, and when the sheriff comes to sell on execution, he should deal with the homestead as the statute directs.
    7. Decree—setting aside fraudulent convey anee — not providing for payment of debt. A decree on creditor’s bill setting aside a fraudulent conveyance of land need not provide for the payment of the judgment which had been recovered, by the fraudulent grantor or mortgagor, whereby to avoid a sale. This may be done without any such provision.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Metcalf, Bradshaw & Yager, for the plaintiffs in error:
    Fraud is a question of fact, and must be proved like any other fact, and is never presumed. Cameron v. Savage, 37 Ill. 172; Hatch v. Jordon, 74 id. 414; Jarrett & Root v. Cook, 81 id. 260.
    Both grantor and grantee must have participated in the fraud, and this must be proved. Hatch v. Jordon, 74 Ill. 414.
    A person, though insolvent and embarrassed financially, may sell his property to pay his debts. Wood v. Shaw, 29 Ill. 444.
    The want of a valuable consideration may be a badge of fraud, hut is only presumptive', not conclusive, evidence of it. Morrity v. Hoffman, 35 Ill. 553.
    • A fraudulent deed is conclusive as to the grantor and his heirs, though voidable as to creditors of the grantor. Lyons v. Robinson, 46 Ill. 276; Horner v. Zimmerman, 45 id. 14; Rawdon v. Fox, 65 id. 200; Railroad Co. v. Phillips, 60 id. 190; Rappleye v. International Bank, 93 id. 396.
    No matter how much a man may be indebted, he may sell his property for a fair price, or even below its market value, if done honestly, and with no intent to delay, hinder or defraud his creditors. Wadhams v. Humphrey, 22 Ill. 661 ; Bowden v. Bowden, 75 id. 143.

      Where no lien exists to prevent, a party, though in debt, may, in good faith, for an. adequate consideration, sell his property to whom he pleases. Miller v. Kirby, 74 Ill. 242.
    After cancelling the fraudulent deed, the decree should have provided that the homestead be assigned before sale. Jaffers v. Aneals, 91 Ill. 487; Leupold v. Krause, 95 id. 440.
    The decree should have provided not only that James Mitchell, but, on his default, any of the mortgagees or grantees,could pay the amount of the judgment and costs. As between the parties those conveyances are good, in any event, as shown by authorities. Rappleye v. International Bank, 93 Ill. 396.
    Messrs. Wise & Davis, and Mr. E. S. Sawyer, for the defendants in error:
    The conveyances made by James Mitchell were fraudulent and void as to creditors, because—
    First—He conveyed all his property'with intent to defraud, hinder and delay his creditors, and without consideration, reserving and retaining nothing to pay his debts. Emerson v. Bemis, 69 Ill. 537; Jaffers v. Aneals, 91 id. 487; Phelps v. Curtis, 80 id. 109.
    Second—The conveyance to his brother, .John Mitchell, was made with the secret trust and understanding and agreement that he (James Mitchell) was to live on the land and receive the benefit derived from, it as long as he and his wife lived. Moore v. Woods, 100 Ill. 451; Power v. Alston, 93 id. 587; Jones v. King, 86 id. 225.
    Third—That after the conveyance of the land to his brother, James Mitchell, he continued to reside on the land the same as he previously did, there being no evident change of ownership. Jones v. King, 86 Ill. 225; Bell v. Devore, 96 id. 217; Moore v. Wood, 100 id. 451; Fleming v. Hiob, 3 Bradw. 390; Power v. Alston, 93 Ill. 587.

      Fowtli—The price claimed to be paid by John Mitchell was grossly inadequate, which, with the other circumstances, showed the conveyance to him was fraudulent as to creditors. Joffers v. Aneals, 91 Ill. 587; Stevens v. Dillman, 86 id. 223; Jones v. King, id. 225.
    Fifth—The conveyance to John Mitchell was under a secret trust. Consequently, even if the debt is subsequent to the conveyance, it must be set aside. Jones v. King, 86 Ill. 229.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was a creditor’s bill, filed by the complainants, to set aside as fraudulent, and void as to creditors, two mortgages and a deed of lands, described in the bill, made by James Mitchell. ■ The circuit court decreed the relief sought. On appeal to the Appellate Court for the Fourth District the decree was affirmed, and the defendants bring this writ of error.

It appears from the evidence, that James Mitchell, in the year 1880, was indebted to the complainants in the sum of $1033, and also to one Peter Robertson in the sum of about $1200. Whilst so indebted he was the owner of a farm, near Alton, of about one hundred and twenty-seven acres, some fifteen acres of it coal land, and worth about $9700. He had also personal property and other-real estate worth at least $2500. On this farm Mitchell placed a mortgage to Sweetser & Priest of $1000. On May 17, 1880, a mort- ■ gage on the land for $2000 was made to his brother, John Mitchell, and a like mortgage for $2000 was made to John Hamilton, May 6, 1881; and on October 13, 1881, James Mitchell made a deed of the farm to his brother, John Mitchell. It is this deed and mortgage to John Mitchell, and mortgage to John Hamilton, which the bill seeks to have set aside. James Mitchell had previously sold his other real estate to Hamilton, and his brother, John Mitchell, and the personal property had been passed to the son of James Mitchell, so that in 1882, when complainants and Robertson obtained judgments on James Mitchell’s indebtedness to them, James Mitchell had disposed of all his property, and executions on the judgments were returned no property found. ' Complainants and Robertson then each filed a creditor’s bill to set aside the conveyances as fraudulent as to them, and the suits were tried together.

As respects the mortgage to John Hamilton, it appears from the evidence that Hamilton was an- intimate friend of James Mitchell, and had lived in his family for years; that he is old and nearly' blind, says himself that it is over ten years since he could do much, and that in 1874 he was worth in the neighborhood of $3000. He and Mitchell state that Hamilton had a note against Mitchell for $1150; that to secure its payment Mitchell gave to Hamilton a mortgage on a lot in Upper Alton, and a chattel mortgage on personal property. This chattel mortgage seems to have covered all the personal property on the place. Afterwards there was an arrangement between them whereby those mortgages were taken up, a deed made to Hamilton of the lot in Upper Alton, and this $2000 mortgage on the farm was given to Hamilton. Just how the amount of the $2000 was made up is confusedly and not satisfactorily explained. Mitchell states: “I had a settlement with Hamilton, and sold him the Upper Alton property for $750 and the chattels for $800. Whatever balance was due on the chattel property went in with the money (which he at the time got of Hamilton, not knowing how much,) to make the $2000.” Mitchell and Hamilton-agree that the Alton lot was taken at $750 and the chattel property valued at $800. The $1150 note, with the interest on it, amounted at the time, they say, to some $1500. The evidence is explicit that this $800, as the value of the personal property, was included in the $2000 mortgage, and it is just as explicit that Hamilton sold the personalty to John Mitchell, the son of James Mitchell. Hamilton said that John had paid him at various times to the amount of $650, which he (Hamilton) paid to James Mitchell, as he promised at the time the property was turned over. It would seem, then, that this $2000 mortgage was too large by at least the amount of this $800, which should have been deducted from instead of included in the $2000. And if the mortgage was executed for too large a sum to protect the property from creditors, it would be fraudulent and void as to them. Wooley v. Fry, 30 Ill. 163; Upton v. Craig, 57 id. 259;. Bump on Fraud. Con. (ed. 1872) 470.

Respecting the deed of James Mitchell tti his brother, John Mitchell, it appears that the latter resided in Pennsylvania, and James Mitchell testifies the consideration was $2000 paid to him, and the deed was made subject to the mortgage of John Mitchell for $2000, that of Sweetser & Priest for $1000, and the mortgage Hamilton claimed to have of $2000. John Mitchell does not in the deed agree to pay the mortgages, but takes the- land subject to them. The deed was made October 13, 1881. John Mitchell died in December, 1883. Ever since the making of the deed James Mitchell has continued to reside on the land, as before. As to how he came thus to reside on the place, he testifies: “I came to reside on the place through a verbal promise my brother made to my wife that she should not be disturbed in the place as long as he lived or owned the place.” And as to the proceeds from the place, he says: “Certain proceeds came through my son, John, by an arrangement the old woman has to get certain proceeds of the place. There are no particular proceeds mentioned, and so far we have been getting what we needed through my son John, here, that’s managing the place, whenever my wife or me wants a dollar. He has to let us . have it, I understand, by instructions from his uncle, my brother. ” The son of James Mitchell, John Mitchell, who was living on the place with him at the time, testifies that about the middle of October, 1881, the agent of his uncle, John Mitchell, made a verbal lease of the land to him; that he was to pay one-half a cent a bushel for all coal taken, and three dollars per acre for all cultivated land; that there was no specified time for paying rent. “The rent was to go to pay the indebtedness on the place, and to keep up the taxes and insurance—keep up the place until my -uncle came around and we had a settlement. ” That his uncle had never been around since then, nor had he ever had a settlement with him; that he paid insurance, and paid Sweetser & Priest the interest regularly on their mortgage, but never paid Hamilton anything. It appears that over 200,000 tons of coal had been taken from the place since the making of the deed. John Mitchell left a will whereby he devised the land in trust, to permit his brother,-James, and his present wife, during their lives and the life of the survivor, to use, occupy and enjoy the land free from all rent, and not be liable in any manner for the debts of his brother, and after his death and that of his wife, then in trust for the use of John Mitchell, elder son of James, and his heirs, charged with the payment by John to his sister, Margaret, of $500, and with the further payment by said John to the executors of the testator of such sum as his brother, James, should be indebted to him at the time of his death. The inventory filed of the estate of the testator showed no indebtedness to the estate of either J ames Mitchell or his son, John. All this manifests, very clearly, in our opinion, that notwithstanding the deed, J ames Mitchell was to have a secret use in the property; and if there was this secret trust connected with this conveyance, that James Mitchell was still to have the beneficial enjoyment, in whole or in part, of the property conveyed, this rendered the deed fraudulent and void .as to creditors. Power v. Alston, 93 Ill. 590; Moore v. Wood, 100 id. 451.

There are other badges of fraud which might be commented upon, but the existence of a secret trust is so manifest that we deem it unnecessary to advert to anything further. The transactions with Hamilton and John Mitchell we think reflect light upon each other, and finding one to be fraudulent as to creditors, casts suspicion upon the other as being of a like character.

Upon a careful examination of the whole testimony we are unable to say that the finding of the'courts below against the validity of the deed and mortgages was not sustained by the evidence.

It is much pressed before us, that as the evidence upon which complainants’ case depends comes from the defendants themselves, who were witnesses introduced by the complainants, the latter are bound by the testimony of their own witnesses—by what they said in favor of the conveyances as being for good consideration and in good faith; that they may not accept a part, and reject the rest of their testimony. A party may not discredit his own witness by direct impeaching testimony, but we are aware of no rule whereby one is bound by any testimony his own witness may give. The statement by a witness that a transaction was upon good consideration and all in good faith, is but a conclusion, and what he may deem honest and fair, the law may pronounce fraudulent as to creditors; and such statement is of little weight as against facts and circumstances which show the contrary. It is the facts and circumstances here in evidence which make the complainants’ case, and they are entitled to the full force of the evidence arising therefrom by whosesoever witnesses the same may be shown.

It is objected there is no provision made in the decree as to homestead and dower rights in the land. There was no need for that. Those rights are not involved, nor in any way affected by the decree. When the sheriff comes to sell on execution, he can deal with the homestead as the statute directs he shall.

It is said the decree should have provided that any of the mortgagees could pay the amount of the judgment and costs. They may do this and avoid a sale, although the decree does not provide for it. The decree does not prevent this.

It is complained that the court below admitted improper evidence. The record shows that at the time of taking certain depositions the counsel for defendants objected thereto on account of the death of. John Mitchell, in December, 1883, who died testate, and that his legal representatives should be made parties before taking any further proceeding. This was disregarded and the depositions taken. It is these depositions to which the objection is made. A supplemental bill was afterwards filed setting forth the death of John Mitchell, and his leaving a will, and making all interested under the will, parties. One of the depositions taken was that of Eobinson S. Sawyer, one of the complainants, and the further objection was made to it that it was inadmissible against such of the defendants as under the supplemental bill were defending as executors and trustees and devisees under the will of John Mitchell, deceased. After the depositions had been taken, and after the defendants had been brought in under the supplemental bill, and had answered, there was a stipulation filed that the depositions which had been taken should apply to the defendants in the supplemental bill. This stipulation appears to us to obviate all the objection to the depositions. Defendants’ counsel merely aver that it does not, without pointing out why not.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Tunnicliff

text:
    The Chicago, Milwaukee and St. Paul Railway Company v. Mary Dowd, Admx.

      Filed at Ottawa January 25, 1886.

      Instruction—in suit to recover for death from negligence—whether to he regarded as stating the law in respect to negligence, or only as fixing the measure of damages. In an action to recover damages for causing the death of the plaintiff’s intestate by negligence, the court, on behalf of the plaintiff, instructed the jury “that if they should find, from the evidence in the case, and under the instructions of the court, that the defendant is guilty of the wrongful act, neglect or default as charged in the plaintiff’s declaration, and that the same resulted in the death of P. D. (the intestate,) then the plaintiff is entitled to recover in this action, for the benefit of the widow and next of kin of such deceased, such damages as the jury may deem, from the evidence and proofs, a fair and just compensation thereof, having reference only to the pecuniary injuries resulting from such death to such widow and next of kin, not exceeding the amount claimed in the declaration.” It was objected that the instruction failed to state the law with regard to comparative negligence, and ignored the question of the care or negligence of the deceased: Held, that the instruction was not to be regarded as one stating the law in respect to negligence, but as relating to the measure of damages in case the plaintiff should recover, and that there was no error in giving the same.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. E. Walker, and Mr. Lincoln Brooke, for the appellant.
    Messrs. Monroe & Leddy, for the appellee.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

The appellee, as administratrix of Patrick Dowd, brought her action in case against the appellant railway company, alleging in her declaration, in substance, that on the 9th of February, 1883, the defendant was operating a switch engine, used in switching defendant’s cars, and that the intestate, Patrick Dowd, was its servant, employed as a switchman to assist in transferring cars and turning switches, and that in the performance of this service it was necessary for him to climb upon the switch engine upon a certain step at the end of the engine, and that to maintain himself in a proper and safe position upon said step, he had to hold on to a certain rod or handle theretofore placed on the engine, and that while, with due care and caution, without negligence, or the negligence of his co-servants then assisting him, he was standing on said step, the engine being in motion, and holding on by said iron rod, the same gave way through the negligence of said defendant in permitting the same to be out of repair and in an unsafe and dangerous condition, and unfit and of insufficient strength to support him, the said Dowd, and that said handle, with its fastenings, became detached from the engine, and that he, having hold of it, was thrown upon the ground and under the wheels of the engine, and killed. The case was tried by a jury, who found the railway company guilty, and assessed the plaintiff’s damages at $3500. A judgment was rendered upon the verdict, and affirmed by the Appellate Court for the First District. The railway company brings the case to this court, and asks that the judgments of the courts below be reversed, because of the giving of the following instruction to the jury, on behalf of the plaintiff in the trial court:

“The court further instructs the jury, that if they should find, from the evidence in the case and under the instructions of the court, that the defendant is guilty of the wrongful act, neglect or default, as charged in the plaintiff’s declaration, and that the same resulted in the death of Patrick Dowd, then the plaintiff is entitled to recover in this action, for the benefit of the widow and next of kin of such deceased, such damages as the jury may deem, from the evidence and proofs, a fair and just compensation thereof, having reference only to the pecuniary injuries resulting from such death to such widow and next of kin, not exceeding the amount claimed in the declaration. ”

The objection urged against the instruction is, that it fails to state the law with regard to comparative negligence, and, in fact, ignores the question as to whether the intestate had exercised any care whatever; and in support of this objection, appellant’s counsel invoke the rule often announced by this court, that where the case is close in its facts, each instruction should state the law correctly, for the reason that the jury are as likely to follow a bad instruction as a good one. The argument of counsel is plausible, and would be entitled to much weight if the instruction in question is to be regarded as one stating the doctrine of negligence, or laying down any hypothesis upon which the plaintiff would be entitled to recover. But such is not its character, and it must be held as relating solely to the measure of damages, in case the jury should find, from the evidence, under the instructions of the court, that the plaintiff was entitled to recover, unless we are to overrule the former decision of this court in the case of Chicago, Burlington and Qiuncy Railroad Co. v. Payne, 59 Ill. 534. In that case an instruction precisely similar to the one complained of here, was given, and in regard to which the court then said: “The point of this instruction is the measure of damages, and is in this respect entirely correct. But appellant’s counsel insist that it is wrong because it withdraws from the jury all consideration of the conduct of the deceased. We do not think the instruction obnoxious to the criticism, as claimed. It is not an unusual, nor is it an objectionable, practice, where the plaintiff’s counsel desire an instruction as to the rule of damages, to say to the jury, that if they find, from the evidence, that the defendant is guilty as charged in the declaration, then the plaintiff is entitled to recover, and define the measure of damages. Such a mode obviates the necessity of stating, and perhaps of reiterating, hypothetically, each element of the cause of action before coming to the real point of the instruction. The declaration here alleges that the death of Albert T. Payne was caused by the wrongful acts, neglect and default of defendant’s servants, while he was exercising due care. ”

In three instructions given on behalf of plaintiff, in this case, and in four given for defendants below, the jury were told, in various forms of expression, in substance, that there could be no recovery if, at the time of the injury, Dowd himself was not in the exercise of ordinary care and diligence, and in this fourth instruction they are informed, in effect, that if they should find, from the evidence and the instructions of the court, that the defendant is guilty, as to what the measure of damages should be.

In the opinion of a majority of the court there was no error in the giving of the instruction, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    L. C. Paine Freer v. Mary A. Lake.

      Filed at Ottawa January 25, 1886.

    1. Mortgage—whether the relation of mortgagor and mortgagee exists—what will operate to extinguish the mortgage debt. A debt or obligation of some kind is an essential element in a transaction to create the relation of mortgagor and mortgagee.
    2. The purchaser of real estate gave notes for the purchase money, secured by mortgage. He subsequently conveyed the mortgaged premises by deed containing a clause obligating the grantee to pay the mortgage debt. Afterward the latter conveyed the property to the holder of the unpaid notes, under a promise of the latter to give the party so conveying to him whatever could be made out of the property in the next three years, above 'the debt, interest, taxes, insurance and repairs: Held, that the mortgage debt was thereby extinguished, and the relation of mortgagor and mortgagee no longer existed.

      3. Trust—where a conveyance creates the grantee a special trustee. The holder of notes secured by mortgage on real estate, required of the owner thereof, who had assumed payment of the mortgage debt, an absolute conveyance of the property, and sent a letter to the debtor, inclosing the deed, in which letter he promised that if anything could be made out of the property during the next three years, more than the debt, interest, taxes, insurance and repairs, to give the debtor the benefit of it. The latter, relying on this promise, executed the deed and gave possession. In a short time after, the grantee sold the property for the amount of his debt and repairs made, after which the property advanced in value, so that if it had been held the three years there would have been a net profit to the debtor of $1768: Held, that construing the deed and letter together as showing the contract of the parties, the relation of trustee and cestui que trust was created, and that the grantee took the property, not as absolute owner, but as a trustee, clothed with duties in respect thereto that a court of equity would enforce, and that he was liable to the grantor for the sum he would have received if the contract had been performed.
    4. A special trust is where special and peculiar duties are pointed out to be performed by the trustee. In such case he is not a mere passive agent, but has active duties to perform, as, where an estate is conveyed to him, to sell, and from the proceeds pay the debts of the grantor.
    5. Contract—construing a letter and a deed as parts of a single transaction. The holder of a debt secured by a mortgage on property, sent a deed therefor to the debtor owner, for execution, with a letter of the same date, promising therein to give the debtor all that could be made out of the property within three years, more than what he paid therefor, with the interest, taxes, etc.: Held, that the letter and deed were but parts of the same transaction, and were to be considered together as one contract, showing the rights of the parties.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook-county ; the Hon. John A. Jameson, Judge, presiding.
    Mr. Frank J. Crawford, for the appellant:
    The transaction between the parties which took place May 27, IS78, did not constitute a mortgage, nor was it intended to he a mortgage by either party. The presumption is that a deed absolute on its face is not a mortgage, and it will not be held a mortgage unless it clearly appears to have been so intended. The proof must be clear, satisfactory and convincing. Jones on Mortgages, 335; Bartling v. Brasuhn, 102 Ill. 441; Pitts v. Cable, 44 id. 103; Wilson v. McDowell, 78 id. 517; Hancock v. Harper, 86 id. 445; Knowles v. Knowles, id. 1; Sharp v. Smitherman, 85 id. 153; Clark v. Finlon, 90 id. 245; Maher v. Farwell, 97 id. 56.
    The facts and circumstances attending the transaction, when properly considered, do not justify the conclusion that the letter of May 27, 1878, amounted to a declaration of trust, or a defeasance of the quitclaim deed, or conferred on the appellee any such rights as found by the court.
    Messrs. H. T. & L. Helm, for the appellee:
    The quitclaim deed was not an absolute conveyance of all interest in the property. Under it, Freer took and held the property on trust, after the payment of his debt and expenses, to render the overplus to Mrs. Lake,—precisely the terms of an ordinary trust deed. Austin v. Austin, 6 Bradw. 49; Woodruff v. Robb, 19 Ohio, 212; Schultz v. Houfes, 96 Ill. 341; Life Ins. Co. v. White, 106 id. 67; Gillis v. Martin, 2 Dev. Eq. 470; Ogden v. Grant, 6 Dana, 473; Cooper v. Whitney, 3 Hill, 96.
    The extinguishment of the personal liability of the debtor does not affect the question of trust or mortgage. Holmes v. Grant, 8 Paige, 251; Bacon v. Brown, 19 Conn. 34; Brown v. Dewey, 1 Sandf. Ch. 57; Wharf v. Howell, 5 Binney, 499 ; Howe v. Keteltas, 46 N. Y. 605; Hughes v. Sheaf, 19 Iowa, 342; Kenyon v. Kelsey, 10 id. 443; Nugent v. Riley, 1 Metc. 117; Scott v. McFarland, 13 Mass. 309; Rice v. Rice, 4 Pick. 349.
    Here is a trust voluntarily assumed for a valuable consideration paid. The letter sent to Mrs. Lake was the inducement to her executing the deed. It held out hopes to her of an interest in or result from the property, notwithstanding her deed. This was fatal to its character as an absolute conveyance. Morris v. Nixon, 1 How. 118.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Mary A. Lake, in the Superior Court of Cook county, against L. C. Paine Freer, to redeem certain premises in Chicago from a mortgage, and in the event that the property had been transferred so that a reconveyance could not be made, that then an alleged trust may be enforced, and that Freer may be required to account to the complainant f.or the rents and increased value of the property from May 27, 1878, until May 27, 1881.

The material facts, as appear from the pleadings and evidence, are as follows: In 1871, one Gilbert, being indebted to Mugridge in the sum of $4800 purchase money for the premises in dispute, gave him five promissory notes—four of $1000 each, payable, respectively, May 21, 1874, 1875,1876 and 1877, and the fifth for $800, payable May 21, 1878, all with interest at eight per cent. Gilbert also executed a deed of trust on the premises, to secure the notes. After the deed of trust was recorded, Gilbert conveyed the premises to Brooks, and he conveyed to Brown, and Brown conveyed to the complainant, Mary A. Lake. Bach deed contained a clause obligating the grantee to pay the Gilbert trust deed. Prior to 1874, Freer had purchased the last four of the notes and deed of trust, the first one having been previously paid, and a short time before the last note became due, Freer, and D. J. Lake, complainant’s husband, entered into negotiations in regard to the payment of the indebtedness, which resulted in an arrangement under which Mary A. Lake and her husband conveyed the premises to Freer by an absolute deed of conveyance. The deed was prepared by Freer and sent to the Lakes for execution, and with the deed the following letter:

“Chicago, May 27, 1878.
“Mr. and Mrs. D. J. Lake—I have drafted a deed of the Gilbert property in conformity with a conversation had to-day with Mr. Lake, which you will find herewith enclosed. I am sorry to be troubled with the property, or to have you lose anything by it. There are two taxes against it—the taxes of 1878, and an old city tax. These taxes I will pay, and all other taxes, and I repeat what I said before to Mr. Lake: I shall consider myself honorably bound, if anything can be made out of the property during the next three years, more than the interest, taxes, insurance and repairs, to give Mrs. Lake the benefit of it. This has been my uniform course in similar cases. In the meantime I shall expect the rent from the first of June, and your title papers and abstracts of title. Please-execute the deed and send to me. First, fill the Christian name of Mrs. Lake; second, your place of residence, and acknowledge.
-Yo™ truly,
L. C. p. Freer.
“P. S. I could collect my debt without difficulty, of the makers and guarantors of the notes, but I do not wish to give any one more than the inevitable trouble these hard times.
L. C. P. F.”

. Upon receipt of this letter the deed was executed and returned to Freer, the title papers and abstract were delivered to him, and the possession of the property surrendered on the first day of June. At the time of this arrangement there was due on the trust deed and notes about the sum of $3400, and on the first day of July, 1878, Freer sold the property to Seth Gage for $3500, which was about the sum the property had cost, Freer having expended something in repairs after the property came into his possession. It also appears from the evidence, that during the three years next succeeding May 27, 1878, the property increased in value, so that if it had been held by Freer and sold at the expiration of the three years, there would have been a net profit to complainant of $1768.03, for which amount a decree was rendered in the Superior Court.

Much time has been consumed in the argument to prove that the transaction between the complainant and Freer was a mortgage, and that the parties should he governed by those principles which control mortgagor and mortgagee, in the decision of the case. . We have given the subject a careful consideration, but, after the execution and delivery of the deed, we are not able to concur in the view that the relation of mortgagor and mortgagee still continued to exist between the parties. Upon the delivery of the deed, the mortgage debt which the complainant had assumed, and which she had agreed to pay, and which was a lien upon her property, was extinguished, and she was released from its payment. There was, after the delivery of the deed, no mortgage debt or obligation in existence, and under the rule announced in Rue v. Dole, 107 Ill. 275, there was nothing for the mortgage to operate upon. A debt, or mortgage obligation of some character, is an essential element in a transaction to create the relation of mortgagor and mortgagee, and it is plain that no debt or mortgage obligation existed under the facts presented by this record. What was the nature of the transaction and the relation of the parties, after the delivery of the deed? The letter of Freer, written to the complainant, and the deed she executed, bearing the same date, are a part of the same transaction, and constitute one contract. The two writings are to be considered together as one contract. By the terms of the letter, Freer required an absolute deed of the property, the title papers, the abstract of title, and possession of the property on the first day of June, in consideration for which he agreed to hold the property for three years, and all that could be made out of the property, more than the interest on what he had paid therefor, taxes, insurance and repairs, he would give to Mrs. Lake. The deed was doubtless executed and delivered upon the faith of the promisé contained in the letter, and it can not be justly said that there was no obligation resting on Freer, after he received the deed, except to cancel the debt that he held on the property. The letter was a proposition, in writing, addressed to Mrs. Lake, containing what had been agreed upon verbally by the parties. This proposition was accepted by her by the execution and delivery of the deed, and when thus accepted, the letter and deed became a binding contract upon the parties. Under it, Freer bound himself, in the event that the value of the property advanced within three years, to sell, retain certain specified amounts, and pay over the surplus to Mrs. Lake. Here was a trust. It was not a sale, as Freer was not to have the absolute, unconditional ownership of the property, but special and peculiar duties were pointed out, by the terms of the contract, to be performed by Freer. He thus became a trustee, clothed with duties in respect to property which a court of equity require to be enforced. Perry on Trusts, (sec. 18,) in discussing the different kinds of trusts, says: “A special trust is where special and particular duties are pointed out to be performed by the trustee. In such cases he is not a mere passive agent, but he has active duties to perform, as, when an estate is given to a person to sell, and from the proceeds to pay the debts of the seller.” Cooper v. Whitney, 3 Hill, 96, is a case in point. It is there held, where a deed of lands is executed, and a covenant made between the parties at the same time, declaring that the grantee shall sell the lands to pay certain of the grantor’s debts, and return to him the surplus, but containing no reservation of the right to redeem, the transaction will be regarded as constituting a conveyance in trust. See, also, Ogden v. Grant, 6 Dana, 473, where the same doctrine is announced. Other authorities of like character might be cited, but we do not deem it necessary to review or cite other cases.

We are satisfied that the letter of Freer, and the deed, taken and construed together, as they must be, make a contract which must control the rights of the parties, and that the contract, when fairly construed, established a trust. Under the contract, appellee, as she had the right to do, relied upon appellant to hold the property, and not force it upon the market, for the time specified in his letter, which led to the execution of the deed. This he failed to do, and it is right that he should pay appellee whatever amount she lost in consequence of his failure to perform his contract. It may be that appellant sold the property, at the time he did, under a mistaken view of his legal obligation to appellee under their contract, hut that fact does not affect his liability.

We regard the decision of the Appellate Court correct, and it will have to he affirmed.

Judgment affirmed.