Fitzgerald v. Wynne

1 App. D.C. 107, 1893 U.S. App. LEXIS 3015

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 5, 1893
• Docket: No. 47
• Status: Published

Opinion

The Chief Justice

delivered the opinion of the Court:

If it be true, as averred in the answer of Francis Keenan, that Jane Keenan made and executed a valid will or testament, wherein she executed the power of appointment given her by the deed of trust to Wynne, and that such will was never revoked, cancelled, burnt, or otherwise destroyed by the testatrix herself, or in her presence, or by her direction and consent, and such will be established by competent evidence, clearly the complainants in this case would have no right to maintain this bill. But the alleged will has not been produced, and the excuse for non-production is, that it was destroyed in the lifetime of the testatrix, by being carelessly burnt by the custodian thereof, after it had been offered to be returned to the testatrix, and she had failed or declined to take charge of it. It is said that the will was made just before Mrs. Keenan started on a journey to Ireland; but it is somewhat singular that after her return she manifested no care or concern in regard to it, and it was after her return, and after showing indifference to it when it was offered to be surrendered to her, that her niece, supposing the paper to be no longer of importance, destroyed it by burning, according to the testimony of the niece.

But, however the fact may be in regard to the making of the will, or the destruction of it, Mrs. Keenan died in June, 1886, and down to the present time, no effort has been made to prove the due execution and the contents of the will, and to have it admitted to probate, according to law. Instead of taking the proper.proceedings to establish the will, the husband, the alleged principal beneficiary thereunder, applied for and obtained letters of administration upon the estate of his wife, which could only have been had upon the supposition that the deceased died intestate. If the will alleged had been properly made, but illegally and without the consent of the testatrix destroyed, the law provides ample means by which it could have been established, to give effect to its provisions. The fact that the will had been illegally destroyed or lost did not, by any means, preclude the beneficiaries thereunder from taking proceedings and having the will established and admitted to probate, on due proof. Sugden v. Lord St. Leonards, 1 Prob. Div., 154. But such proceedings should have been taken as preliminary to setting up the will as the foundation of a right or claim to an estate in a litigation inter partes. For, as said by the Supreme Court, in the case of Ellis v. Davis, 109 U. S., 497: “The original probate, of course, is mere matter of State regulation, and depends entirely upon the local law; for it is that law which confers the power of making wills, and prescribes the conditions upon which alone they may take effect; and as, by the law in almost all die States, no instrument can be effective as a will until proved, no rights in relation to it, capable of being contested between parties, can arise until preliminary probate has been first made.” This, as we have seen, is not a proceeding for the establishment of the will. If Mrs. Keenan made a will and left it uncancelled or unrevoked, and the party claiming under it intended to make it a muniment of title and a medium of evidence, he should, by petition,- have invoked the probate jurisdiction of the Supreme Court of this District, and offered to prove the due execution and contents of the alleged destroyed will, and have the same, upon proof, admitted to probate. This could have been done under the act of Congress of July 9, 1888, ch. 597, 25 Stats., 246, which provides that the record of any will or codicil admitted to probate by the Supreme Court of the District of Columbia, etc., “ shall be prima facie evidence of the contents and due execution of such wills and codicils.” That statute was passed, as we may suppose, in view of the then recent decision of the Supreme Court of the United States in the case of Robertson v. Pickrell, 109 U. S., 608, and to correct what was made to appear in that decision as a defective state of the law in this District, in relation to the probate of wills as affecting the titles to real property. The appropriate mode of proceeding for probate in such case as this would have been that,provided for by sections 16 and 17 of the Maryland act of 1798, ch. 101, subch. 15, in force in this District. Or, if preferred, the party interested in establishing the will, as against the heirs-at-law of Mrs. Keenan, inasmuch as the estate in question is merely equitable, and consequently no action at law could be maintained, could have brought a bill in equity to establish the will, so far as it affected the real estate in question. In such case, the jurisdiction of a court of equity is well settled; and the appropriate mode of proceeding, and especially where tire will is alleged to have been lost.or destroyed, is for the court to direct an issue of devisavit vel non, to determine the, facts of the making, contents, and validity of the will. Bootle v. Blundell, 19 Ves., 501, 502; Tatham v. Wright, 2 Russ. & M., 1, 10; 2 Sto. Eq. Jur., Sec. 1447; Boyse v. Rossborough, 6 Ho. L. Cas., 2, 37; Ellis v. Davis, 109 U. S., 495.

Here, however, neither of these modes of proceeding has been resorted to; but the party simply avers in his answer by way of defense, that a will had been made, in which the property had been given or appointed to him, and that the paper had been destroyed in the lifetime of the testatrix; and he offers to prove the execution and contents of such will. If the proof in the case was at all clear as to the making and contents of the will, and that it was destroyed without the knowledge and consent of Mrs. Keenan, it would, perhaps, be a proper thing to do, to direct that the bill be retained to enable the defendant to take the necessary and appropriate proceedings to have the will established and admitted to probate. But, upon the testimony before us, that would appear to be useless, and could only be productive of delay and onerous costs to the parties. The testimony wholly fails to prove the contents of the alleged will, and is very questionable as to the legal execution of the paper. It is true, one witness says she read the will, and another that he either read or heard it read, and that the property in question was given to the defendant, Francis Keenan. But how given— whether in fee, or for life, or on condition, or with qualification; or whether the devise made special reference to the power in the deed, or to the property the subject of the power, or was a general devise of all her real estate — does not appear. The statements of the witnesses are at most nothing more than their conclusions as to the construction of the paper; they do not pretend to give the particular terms of the will, or even the substance of what was written on the paper. This, according to all authority, is clearly insufficient. No subject could require greater caution on the part of the court than that of acting on proof offered to establish a lost or destroyed will, nor demand of the parties attempting to establish such lost or destroyed papers more certain and definite proof. The will must be shown to have been irretrievably lost or destroyed, and that it had been duly and properly executed and attested; and that its destruction, if in the lifetime of the testator, was wholly without his knowledge or consent, at the time, or his subsequent ratification. If this be clearly shown, and the substance of the will be distinctly and definitely ascertained, either by the original instructions, or by a copy of the will, or even by the recollection of witnesses who have read, or heard read, the paper, it is settled, the court will grant jprobate of a copy embodying such substance. But in all such cases, it is laid down with emphasis, that the jurisdiction of the court should be exercised with the greatest possible caution, “ and that the judge will scarcely feel justified in acting on the evidence unless it be of the most cogent and irrefragable character, not only free from suspicion in its source, but exact and certain in its conclusions.” 2 Taylor, Ev., Sec. 406, and cases there cited; also Sugden v. Lord St. Leonards, 1 Prob. Div., 154, 177, 220, 222, 232, and 236. The testimony here falls far short of this standard, and supposing it to be all that is within the reach of the defendant, it would be quite futile to attempt to establish the alleged mil on the strength of it.

Seeing then, that there has been no appointment by will or testament of Mrs. Keenan under the power in the deed, the case is clearly within the jurisdiction of a court of equity to enforce the execution of the power to convey by the trustee. The power is not a discretionary one, but is in its terms and nature imperative upon the trustee, and therefore must be executed. For it is settled doctrine, that where the power is one which it is the duty of the trustee to execute, he becomes a trustee for the exercise of the power, and not as one having a discretion, whether he will exercise it or not, and the court adopts the principle as to trusts, and will not permit his refusal,.negligence, accident, or other circumstances, to disappoint the interest of those for whose benefit he was clothed with the power. Brown v. Higgs, 8 Ves., 570, 574; Mott v. Buxton, 7 Ves., 201; 1 Perry on Trusts, Sec. 248, and cases cited. But, although the right of the cestuis que trust to require a conveyance from the trustee may be quite clear in the view of the court, yet if the trustee in refusing to convey, has acted bona fide and on apparent circumstances of doubt as to the right of the cestuis que trust to receive the conveyance, he will not be charged with the costs of the suit. Angier v. Stannard, 3 M. & K., 566; Knight v. Martin, 1 R. & M., 70; Hill on Trustees, 393. And that would appear to have been the predicament of the trustee here.

Then, with respect to the deed, and the effect thereof, from the complainant, John Fitzgerald, and Mary Gallagher, to the defendant, Francis Keenan. That deed was not acknowledged in proper form by John Fitzgerald, as required by the registry law of this District, nor was the official character of the officers taking the acknowledgments in the State of Connecticut duly certified, and the deed has not been recorded. The signatures of the grantors- were erased therefrom after the deed had been delivered to the grantee, and without his knowledge or consent, though the deed had been returned to the grantors for the correction of the defective acknowledgment, and for that purpose only. The question is, was the deed, and the effect thereof, destroyed by this act of erasure or obliteration by the grantors, under the circumstances of the case?

It is certainly a general rule, that where a party makes a perfect deed of conveyance of an estate in land, that is to say, where he executes and delivers a deed of conveyance as his final act, the estate in the property, if equitable, at once passes to the grantee, equally as it would on a conveyance of a legal estate, unless the operation of the deed be restrained by statute. The grantor cannot revoke such deed, unless he has reserved to himself a power of revocation. And where such deed has been destroyed, by the grantor, after delivery to the grantee, secondary evidence of its contents may be given, and the deed set up against the grantor and his heirs and devisees, and against volunteers claiming under him. Here, the conveyance of the equitable interest was in the form of a deed of bargain and sale, for the nominal consideration recited of five dollars, and the deed contained covenants for general warranty and for further assurance. But any conveyance of the equitable interest by the cestui que trust would have the same effect and operation upon the trust as it would have had upon the legal estate, in case the trustee had executed the power by conveying the estate to the heirs. The deed here was executed and delivered as the final act of the grantors, and the equitable interest in the property thereupon passed and became vested in the grantee, and that interest was not divested by the subsequent unauthorized obliteration or erasure of the signatures of the grantors from the deed. 2 Spence Eq. Jur., pp. 881-883.

It has, however, been urged in argument, that because the registry laws of this District have not been complied with, and the deed has not been recorded, therefore, it can have no operation or effect in passing the interest of the grantors. But that does not follow the failure to record the deed, as between the parties thereto. The great object of the statutes in requiring deeds of conveyance to be acknowledged and recorded is to prevent the practice of fraud upon creditors and purchasers; to furnish the means of notice and protection to innocent third parties. It never has been held, says Chancellor Bland, “that those laws altered any principle of the common law, or required anything in addition to the common law solemnities as a necessary constituent of a deed, as between the parties to it. Hence, a deed of this kind (a mortgage), as between the parties themselves, has always been deemed as valid and effectual without recording as with it.” Salmon v. Clagett, 3 Bland Chan., 172, and same case affirmed on appeal in 5 Gill & John., 3x4, 346. And Professor Washburn, in his valuable work on Real Property, after reviewing all the American cases upon the subject, concludes by saying: “It may, therefore, be stated in general and nearly unqualified terms, that between the parties to the deed, or the heirs or devisees of the grantor and the grantee, and those claiming under him, the validity of the deed is not affected by the want of record. And that the same is true as to all purchasers who may take a subsequent deed, knowing of the existence of the prior one.” 3 Washb. on Real Prop., 283. Of course, if the statute declared that no deed affecting the title to real estate should have any effect or operation unless duly acknowledged and recorded, in the manner prescribed, the deed in this case would fail of effect and convey no interest in the property. But the statute makes no such declaration, and leáves -the conveyance to operate as between the parties to it, irrespective of the provisions for acknowledgments and recording. It simply provides that all deeds, or other instruments of writing, which by law are entitled to be recorded in the office of the recorder of deeds, “ shall take effect, and be valid, as to creditors and as to subsequent purchasers for valuable consideration without notice, from the time when such deed, deed of trust, etc., shall, after having been acknowledged, proved or certified, as the case -may be, be delivered to the recorder of deeds for record, and from that time only.” Act of Congress, relating to the District of Columbia, of April 29, 1878, ch. 69, 20 Stats., 39. There is nothing in this provision, certainly, that restrains the common law effect and operation of the deed from the time of its execution and delivery, as between the parties themselves.

It follows that John Fitzgerald, one of the complainants, has no interest to entitle him to maintain this bill; and that, the two infant defendants, children of Mary Gallagher, deceased, are also without interest. But the other five complainants, children of Patrick Fitzgerald, deceased, are entitled to relief; and we shall, therefore, reverse the decree of the court below, and remand the cause, with direction that the bill be dismissed so far as John Fitzgerald is concerned, but retained as to the other complainants; and that they are entitled to a decree for the sale of the property, and to have the proceeds of the sale distributed among the parties, according to their respective interests therein; and to a decree for an account of the rents and profits, as prayed. And as the trustee, Wynne, holds the legal title to the property, he should be required to join in the conveyance to the purchaser under the decree. The costs shall be paid, the one-half by John Fitzgerald, and the other half out of the fund arising from the sale of the property.

Decree reversed, and cause remanded for a decree in accordance with the foregoing opinion.