MCGILL, Ch.
(Syllabus by the Court.)
Action to set aside a deed and to compel a reconveyance of the property.
Barker Gummere, for complainants. John R. Emery, for defendant George D. Sendder.
MCGILL, Ch. George Dill, late of Trenton, in tins state, died in January, 1857, leaving his last will, bearing date on the 6th day of May, 1856, by which he devised to William P. Sherman, "his heirs and assigns," a house and lot on State street, in the city of Trenton, then occupied by the testator's son John, in trust "for the following, and no other, uses and purposes, to-wit: He and they are to permit my son John to occupy and enjoy the same or to lease it, and receive the rents, issues, and profits to his own use (he keeping the same in repair, and paying all legal taxes and assessments thereon) during the continuance of the joint lives of my son John and his present wife. Whenever said joint lives shall be terminated, if said termination shall be occasioned by the decease of my said son John, said trustee, his heirs or assigns, is immediately to convey said real estate to my daughter Elizabeth and my grandson Frederick, their heirs and assigns, as tenants in common, in equal moieties; or, if either of them be then dead, to convey the whole of said real estate to the survivor, her or his heirs and assigns, forever; or, if both be deceased, then to convey said real estate in fee simple to the person or persons who may at that time be the heir or heirs at law of the said Frederick, in the same proportions as the said heirs—if more than one—would take by direct inheritance from said Frederick. But, if the termination of said joint lives be occasioned by the decease of the present wile of my son John, then said trustee, his heirs or assigns, is immediately to convey said real estate to my said son John, to be held by him, his heirs and assigns, forever." The testator also gave specified real and personal estate to his daughter Elizabeth, who was unmarried, and other specified real estate to his daughter Sarah, the wile of Ogden D. Wilkinson, during the joint lives of herself and her son Frederick, and provided that when one of them should die the survivor should take the property in fee. The residue of his estate, consisting entirely of personalty, he gave to his daughter Elizabeth, his grandson Frederick, and his friend William P. Sherman, in equal shares, the share of William P. Sherman to be upon a trust in all essentials, so far as the testator's son is concerned, similar to the trust respecting the house and lot on State street, in which the son then resided. On the 28th of January, 1875, Frederick Wilkinson executed to his uncle, John Dill, a deed which recited that for and in consideration of one dollar to him paid he had "granted, bargained, sold, aliened, remised, released, conveyed, and confirmed," and thereby did "grant, bargain, sell, alien, remise, release, convey, and confirm" to his uncle, and to the uncle's heirs and assigns, forever, the house and lot on State street, devised in trust as above mentioned, declaring therein his intention to be "to vest in and convey to the said John R. Dill, his heirs and assigns, all the interest and right to said premises which he may have acquired under and by virtue of said last will and testament of George Dill, deceased, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging or in any wise appertaining, the reversion and reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, and right of property, possession, claim, and demand whatsoever, as well in law as in equity." The deed contains no express covenants. In October, 1880, and while his wife yet lived, John Dill, the testator's son, died. In the absence of the deed above referred to, this event, with the previous death of Elizabeth Dill, the testator's daughter, would throw the equitable fee in the land described in the deed upon Frederick Wilkinson, and entitle him to a conveyance from the trustee. John Dill left a will by which he devised all his estate to his wife, Catharine. Upon his death his wife, Catharine, took possession of the house and lot in question, and continued in that possession until her death, in 1886. By her will she directed that the property be sold by her executor, the defendant George D. Scudder, and that the proceeds of sale be divided among beneficiaries named in the will. In 1887, after the death of Catharine Dill, the complainants, who are the children and heirs of Frederick Wilkinson, commenced this suit to compel a conveyance of the legal title of the house and lot on State street to them. The executor and beneficiaries under the will of Catharine Dill, and those in whom the legal title to the land rests, are made defendants to this suit. The deed of January 28, 1875, from Frederick Wilkinson to John Dill, is assailed upon triple grounds: First, that it did not convey the equitable fee afterwards acquired in the land; second, that Frederick Wilkinson did not possess capacity to make the deed; and, third, that the deed was the product of undue influence upon Frederick Wilkinson by John Dill.
1. It is insisted that this deed conveyed only the estate that Frederick Wilkinson had in the property at the deed's date, that is, the estate he then "may have acquired" in virtue of his grandfather's will, and that such estate was but a possibility, and not the vested estate in fee that was acquired five years later. The deed conveyed Wilkinson's "right to the property;" that is, the contingent right he had, out of which a substantial estate might grow. This, being a mere possibility, could not, otherwise than by estoppel at the common law, be assigned, (4 Kent, Coram. 260; Challis, Real Prop. *58; 3 Washb. Real Prop. 370;) but by our statute (Revision, p. 167, § 82) since 1851 it could be conveyed, assigned, or charged by deed or will, provided the contingency was not as to the person in whom the future estate should vest. Because the assignment of a mere possibility was not recognized by the common law, the future estate, upon the happening of the contingency,—though in fact the right to it had been assigned,—went to the grantor,then of unsound mind and unfit to govern himself or his affairs, and that he had been in such condition for 16 months and upwards. After his discharge from the asylum he resided with his mother until his death, in December, 1883. The contention is upon the question whether on January 28, 1875, he was incapable of transacting business. It is very apparent that the majority of the witnesses have difficulty in fixing the times when they saw him act in a manner indicative of mental incapacity, and when they were satisfied that he was incapable. In view of the fact that a majority of them had no occasion to associate his noticed incapacity with time, and thus fix dates in their memories, it is not surprising that it is difficult for them, after a lapse of so many years, to speak with any accuracy as to time. And it seems to me to be unsafe, in the case of many of these witnesses, to place reliance in the dates they attempt to fix. It is proved that, in 1884 and 1885, and subsequently, Mr. Wilkinson frequently drank to intoxication, and it seems to be fairly suggested that it is impossible to determine how far disinterested and indifferent witnesses may have mistaken temporary intoxication for permanent impairment of the mind. Dr. S. Preston Jones, who was in at. tendance upon Mr. Wilkinson while he was at the Kirkbride Asylum, was examined as a witness. He states that the average of life after the commencement of paresis is three or four years, and that he was surprised to learn that Mr. Wilkinson had lived until 1883. From the fact of his living so long the witness concludes that the progress of the disease must have been abnormally slow, and argues that, as the condition of the patient when he was in the hospital indicated considerable advance of the disease, the disease must have existed in him for some years. He described his patient during his life in the asylum as weak in memory, but little interested, moving with a shuffling gait, silent, seeing with difficulty, careless in dress and in manner of eating, and requiring constant attention. He explains that his physical difficulty was in complete paresis of both sides. He further states that, as a rule, the progress of paresis is gradual, with constant arrests. "These patients," he explains, "will have a bad spell and take a slip downward, and then they will live for months without a change; then they will have another spell and another slip downward. After these spells they never rise up to where they were before; and then there are in some these apoplectic forms of paresis that take patients off very often." He thinks that during a patient's indulgence in the gratification of passions the progress of the disease must be more rapid than during treatment in a hospital by skilled physicians, and that also, in the incipient stages of the disease, the patient will be fully capable of attending to his ordinary affairs. He instances the case of a bank teller, who, for months after evidences of paresis appeared, satisfactorily attended to a banking business that required great exactness. It may be when the deed in dispute was executed Mr. Wilkinson was in the first stages of paresis, but it cannot be possible that at that time ha was incapable of making that instrument. After the deed was made he maintained his responsible position in the bank for more than a year, taking an active part at numerous meetings without so acting as to awaken the suspicions of his fellow directors, and for nearly three years thereafter he continued his lumber business partnership. The inquisition of lunacy found his incapacity to date from the time when his wife commenced her suit against him and he departed for a protracted debauch in Europe. That inquisition is entitled to the greatest consideration, for it was taken in Trenton, where he had lived, and in the year 1878, when remembrance of his habits was fresh and dates could be easily fixed. The test of mental capacity is whether he possessed sufficient mind to understand in a reasonable manner the nature and effect of the act he was engaged in. Earle v. Hosiery Co., 36 N. J. Eq. 188, 37 N. J. Eq. 315. I think, after careful examination of the testimony, that incapacity does not appear.
3. Upon the question of undue influence, the mental condition of Mr. Wilkinson is material in another view. A person may possess sufficient capacity to understand the nature of the transaction in which he is engaged, and to make a valid deed when left to his own free will, but yet may be so weakened in mind as to be unable to resist or guard against unfair importunity, craft, and fraud. When it is shown that the mind of the grantor was enfeebled, and that he is suspiciously subjected to the influences of the grantee, to whom he conveyed valuable property for a grossly inadequate consideration, the courts will require that it be made to appear affirmatively that the grantor understood the nature of his act, and was not led to it by unfair influences. Haydock v. Haydock, 34 N. J. Eq. 570; 2 Pom. Eq. Jur. § 947. The contention of the complainants is that Mr. Wilkinson's mental power was weakened by intemperance and disease; that Mr. Dill was an uncle with whom he was upon intimate terms,—his boon companion in intemperance, and his confidential business adviser; that when the deed was executed the grantee was present; that by its terms the deed purports to be one of pure bargain and sale, by which $10,000 worth of property was conveyed in consideration of one dollar, and that it was executed in the presence of two witnesses, — an unusual proceeding in the office in which it was drawn. It is claimed that these circumstances throw upon those who would claim under the deed the burden of showing that the transaction was one in all respects fair and in good faith. If it be admitted that the proofs establish the facts as they are stated in this proposition, there can be no doubt that the burden of showing the fairness of the transaction will be upon the defendants. I cannot, however, accede to the facts statedin the proposition. I do not think that at the time the deed was made Mr. Wilkinson's mind was materially weakened, even though at that time there may have been some physical manifestation of the existence of the disease that ultimately destroyed his mental power. The instances in which ability and strength of mind and purpose are shown, about the time and after the execution of the deed, have too much strength to leave Mr. Wilkinson's mental condition in doubt. Opinions of witnesses as to mental capacity, unsupported by facts to show that the opinions are well grounded, are of no value in a judicial inquiry of this kind; but the opinions of bank officers and lawyers, with whom the subject of the inquiry is shown to have frequently dealt, and who were so situated with reference to him in their dealings that incapacity must have obtruded itself, cannot but be of controlling weight. Mr. Wilkinson attended upwards of 50 meetings of directors at the bank in a little more than a year after the deed was executed, and did nothing to disabuse his fellow directors' opinion that he was a shrewd, capable, and self-reliant man, and he so conducted himself in his frequent business dealings with the lawyers Richey and Rusling as to impress them that his mind was vigorous as late as 1876. In face of evidence of this character it appears to me to be impossible to say that in January, 1875, Mr. Wilkinson was incapable of resisting improper influences. Possessed of mental strength, I fail to perceive why he may not have made a gift to his uncle, and that by an instrument which may in form import that the transaction was purely a matter of bargain and sale. It is true the consideration in a deed of bargain and sale may be so unconscionably small as to afford in itself evidence of fraud, and demand explanation, but at the same time it may be so merely nominal as to materially aid an explanation that, though in the form of a contract, it was really a gilt. I conceive this to be the office of the deed's nominal 'consideration here. One dollar for $10,000 worth of property is so beyond pretense of more than mere formal consideration that its effect on our minds is not merely the suggestion of fraud, but also the exclusion of the idea that bargain, and sale were really intended. The explanation of this transaction I think is apparent. The will of George Dill discloses that the primary object of the executory devise to Frederick Wilkinson was not because the testator desired to give him the State-Street house after John Dill's death, but because he desired to so provide that the house could not, by any possibility, become the property of John Dill's widow. If John Dill had survived his wife, he would, under his father's will, have taken the house in fee. The trust, then, was not devised as a punishment for him, for his father gave him as unlimited control of the trust property as the existence of the trust would permit, and at the same time made him one of the executors of the will, and provided that the expense of the trust should come out of the entire estate, not out of John Dill's share of the estate. The cause of the prejudice against the daughter-in-law does not appear, but that it did exist, and that its exhibition in the will was a source of mortification and annoyance to John Dill, is manifest. The man thus annoyed and mortified was the uncle and intimate friend and companion of Frederick Wilkinson. Frederick Wilkinson was a man of independent fortune, of excellent ability, and engaged in a profitable business, and his wife was possessed of even a larger fortune than he. They had more than enough for their children. The interest in the uncle's house was merely a contingent right. What more natural than to gratify this friend and relative by releasing that right? It was a generosity that, in view of Mr. Wilkinson's surroundings, became almost a duty. Mr. Dill's solicitude for the welfare of his nephew and the nephew's estate after the deed had been made, when the ravages of disease became apparent, evinces that his friendship was not merely time-serving, until the deed should be executed.
It is true that we have no statement of that which occurred at the very time when the deed was drawn and signed. Mr. Richey and his clerk recognize their signatures as witnesses to the deed. Mr. Richey thinks that Messrs. Wilkinson and Dill were together, and this is the only proof that Mr. Dill had anything to do with the execution of the deed. It is only Mr. Richey's vague recollection. Dill and Wilkinson were frequently together at Mr. Richey's office, and it seems to me by no means certain that Mr. Richey is right in his conjecture that they were together at the time this deed was executed. Mr. Richey took the acknowledgment to the deed. Nothing, throughout the entire transaction, that occurred, seems to have left any impression upon his memory or upon that of Mr. Maple, who was the second witness to the deed. It can hardly be if there had been any noticeable incapacity or fraud that Mr. Richey would have failed to have detected it, or that in such case he would have witnessed the deed, and taken and certified to Mr. Wilkinson's acknowledgment that it was his voluntary act and deed. The recording of the deed two days after its execution is not in keeping with a fraudulent or clandestine proceeding. The only other persons who could have known of the transaction are dead. The unfortunate relations between Frederick Wilkinson and his wife preclude the probability of his having mentioned the transaction to her, and Mrs. Dill, who, for obvious reasons, was probably fully cognizant of the entire transaction, died before the complainants filed their bill. The proofs, then, present an entirely different proposition from that for which the complainants contend. They show a gift of a mere contingent interest in land, which possibly had its origin in prejudice, and the existence of which worried and mortified the donee, bya nephew in full possession of mental strength and faculties, and possessed of large fortune, to an uncle to whom he was bound, not only by blood, but also by intimate friendship, which is made by an instrument that was executed in the office, and in the presence, of a lawyer who is distinguished for conscientious care and integrity, solemnly acknowledged before that lawyer as a master of this court, witnessed not only by the lawyer but also by his assistant, and promptly entered in the public records of the county. Such a transaction cannot be impeached in this court.
An important circumstance militates against the claim of the complainant Ogden Wilkinson for relief which I think should be referred to. The disputed deed was executed in 1875. John Dill died in 1880, leaving a will by which he bequeathed his entire estate to his wife. That wife survived him six years, and in that time she remained in undisputed possession of the lands in question, receiving the rents, issues, and profits from them. It is true that Mr. Wilkinson was insane in 1877, but his mother was his guardian from 1880 to 1883, and knew of the provisions of the grandfather's will. From a few months after his death in 1883 the complainant Ogden Wilkinson, one of his heirs, was of full age, yet Mrs. Dill was suffered to die before any step was taken to assert the claim now advanced by him. More than this, Ogden Wilkinson swears that he knew that Mrs. Dill was in possession of the property, and that he was advised by his grandmother, who had been his father's guardian as I have stated, not to make "a fuss" about it until Mrs. Dill should die. If the circumstances of the making of this deed were such as to demand explanation from those who claim under it, it becomes manifest that equity requires that that explanation should have been demanded before the death of possibly the only person who could have given it. After deliberate and intentional delay until the death of that witness, and the possibility of explanation is thereby extinguished, it is most inequitable that one who so purposely delays should now be permitted to say that such explanation is necessary to insure title under the deed. I will dismiss the bill, with costs.
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