Mr. Chief Justice Marshall
delivered the opinion of the Court, and, after stating the case, proceeded as follows:
The. counsel for Asa Handy contend, that the bill seeks to set up a parol trust, which is denied in the answer, and that the decree is founded on a supposed incompctency of Comfort Wheaton to convey his property. The decree, therefore, is not supported by the allegations of the bill.
They, also, contend, that the decree is not sustained by the proofs in the cause.
Decree according to the allegata as will as probata. Fact of the incompetency of comfort W. sufficiently alleged to put it distinctly in issue.
That the bill alleges the conveyances of the 9th of May to have been received for the benefit of the family,, is unquestionable; but this is not
incompatible with the incompetency of Comfort Wheaton to execute them. Deeds may be ob-tamed from a weak man for the purpose of preserving his estate for himself and family, and of protecting him from the impositions, to which he m%^t be exposed; and there is nothing to restrain one of the heirs, who may think himself aggrieved, from bringing the whole case befóte a Court of equity. If, indeed, it were true in fact, that the bill does not allege this incompetency so as to put it in issue, the objection would be conclusive ; for, it is well settled, that the decree must conform to the allegations of the parties* But, we think, this bill is not justly , exposed to this objection. It states the general correct conduct of C. W. during the life of his wife; that, soon after her decease, he was visited by a paralytic stroke, which was followed by a total change in his conduct. He was addicted to intoxication, and to many vicious habits, in the course of which, fears were excited in his family that he would waste all his property, or convey it to his profligate companions. They consulted together, and with their friends ; and the first proposition was, to apply to the Court for a guardian to manage his affairs, according to the law of Rhode Island in such cases. It. was, however, finally agreed, that Asa Handy should obtain deeds for his property, and hold it for the use of C. W. during bis life, and of his heirs after his death. The bill then proceeds to state, that the said Asa Handy, knowing the premises, did induce the said Comfort, “ he-being in the state and condi
tion of body and mind aforesaid,” for the nominal consideration of 2,178 dollars, to make the conveyances in the bill mentioned.
Although a more direct and positive allegation that C. W. was incapable of transacting business, would have been more satisfactory than the detail of circumstances from which the conclusion is drawn, yet, we think, that the^averment of his incompetency is sufficiently explicit to make it a question in the cause. The defendant has met this charge, and we cannot doubt that his answer is sufficiently responsive to the bill, to give him all the benefit which the rides of equity allow to an answer in such circumstances.
We proceed, then, to look into the proofs in the cause, ándito inquire whether the establishes the incompetency of C.W. when these deeds were executed.
Proof of the incompetency of the grantor.
We have examined with-attention the immense mass of contradictory evidence which the record contains. A number of persons, and, among others, the witnesses to the deeds, express the opinion that he was capable of managing his affairs, and of disposing of his property. This evidence, however, is met by such a mass of opposing testimony as can scarcely be resisted. Among the numerous witnesses who testify to the imbecility, of his mind, are many who had been long and intimate acquaintances. All his physicians concur in stating, in strong and decided terms, the weakness of his mind, as well as
his body, which they ascribe chiefly to the character of his disease. One of them, Doctor Barrows, attended him about the time these deeds were executed. He says, “ with regard to the state of his mind, at all times when, I saw him within the said period, (from the 1st of March to the 25th of November, 1809,) I can say, that he appeared to me wdiolly incapacitated to transact any money business, or to have the care if any concerns whatever. It is my opinion, that the decay of his mental faculties was such as to induce that, state of fatuity which would unfit him for all the purposes relative to the affairs of life, except obeying the various calls of nature.” Some of the witnesses add to their opinion of his imbecility, some circumstances on which the opinion is founded, which cannot fail to make a deep impression on the mind. Ziba Olney says, that he was acquainted with C. W. for the last five years of his life, who, for the last fifteen months of them, resided in his family. “That during the whole of these times he appeared to be childish, and incapable of transacting any business. The reasons of this opinion are, that he would frequently repeat the same questions, and would, several times in the same day, ask what day of the week it was. At short intervals, he would talk rationally, and then would break off from conversation to singing, and from that to crying. That he would frequently go out in the night and day, naked except his shirt. That he would frequently break out in profane language, and, at other times, preach.” Several other
witnesses describe the situation and conduct of this afflicted old gentleman, in a manner to add great weight to their opinion, that his faculties were prostrated. Many even of those witnesses who depose to his competency, declare, that the public opinion and language of his neighbourhood was, that his mind was deplorably impaired and the conduct and declarations of his family, including the defendant, Asa Handy himself, show a settled conviction that C. W. was incapable of managing his affairs. •
There is evidence of the consultations in which Handy participated, previous to the deeds of the 9th of May, for putting the old gentleman and his estate under guardianship ; and there is, also, evidence of similar consultation respecting, the propriety of. procuring a conveyance of his property, in order to save it for himself and his family. This may not be admissible as.proof of a trust; but it is strong evidence of a conviction,' that the person from whom the deed was to be obtained was unfit for the management of his own affairs. Among other testimony to this point, Abner Daggett deposes, that Asá Handy asked/him if he had a notion of buying his father Wheaton’s lot ? The witness answered, that he had had some conversation with Wheaton about it; upon which Handy said, Wheaton was no more capable of selling his estate than a child. The witness was deterred from purchasing, though he wished to acquire the lot, by the fear of subsequent controversy.
The great and sudden revolution in the whole
conduct of C. W., immediately after the first paralytic stroke, viewed in connexion with his ad-: vanced age, is a strong circumstance m corroboration of the opinion that his mind was diseased. A sober, prudent, reflecting, and moral man, between seventy and eighty years of age, mingles with profligate people, to whom he devotes himself, and becomes suddenly intemperate, immoral, and childishly whimsical and indiscreet, so that his nearest friends think it necessary to put it out Of his power to ruin himself.
The terms on which this old gentleman stood with his family, are not entirely unworthy Of consideration. But two of his children, Caleb, and Mary, the wife of the defendant Asa, lived near him. From causes, some of which may be discerned in the record, he was on ill terms with Caleb. One of the witnesses deposes, that he said, on one occasion, “ You know,, Asa*I made you. the deeds to spite Caleb.” There is other testimony to the same effect. The necessary consequence of this quarrel with Caleb, was, to subject him, in an increased degree, to the influence of Mary Handy and her husband, and exposes the deeds conveying all his property to them, to an increased degree of suspicion.
. The inadequacy of the consideration, as stated in the bonds referred to in the answer, furnishes an additional argument against these deeds. It was chiefly the support, of C. W. for the residué of his life. This proved to be five years, which was a longer time than his age, and state of health, at the time of the transaction, rendered
probable ; but which was certainly not a full consideration for the property.
These various circumstances add so much weight to the opinions of those who depose to the incompetence of C. W., that the mind cannot withhold its assent from that conclusion. An issue, indeed, might have been directed ; but we ■, ' i • i • • , • i i • do not think it a case m which this course ought to have been pursued. The degree of weakness, or of imposition, which ought to induce a Court of Chancery to set aside a conveyance, is proper for the consideration of the Court itself; and there seems to be no reason for the intervention of a jury, unless the" case be one in which the Court would be satisfied with the verdict, however it might be found. A verdict affirming the capacity of C. W. to execute these deeds on the 9th of May, 1805, could not, we think, have been satisfactory to the Court; and it was, consequently, not necessary to refer the question of competency to a jury.
An issue unnecessary, and if it had, been directed, the verdict would not have been conclusive.
If these deeds were obtained by the exercis
e
of undue influence over a man whose mind had . . ceased to be the safe guale of his actions, it is against conscience, for him who has obtained them to derive any advantage from them. It is the peculiar province of á Court of conscience, to set them aside." That a Court of equity will interpose in such a case, is among its best settled principles. The cases cited in the argument, which we will not repeat, place this beyond the possibility of question. It was, therefore, proper to set aside the deeds, and to direct the de
fendant, Handy, to account for the money he had received under them.
Deeds set aside, on account of the undue influence exercised upon the grant or.
But, although that defendant ought not to be permitted to benefit himself by his own improper act, it is not reasonable that he should be burthened with the debts of C. W., and the expenses of his maintenance. These are proper charges on the estate itself. So are improvements and repairs which enhanced the rents, and the value of the estate. As a defendant in equity, Asa Handy has certainly a right to retain them, and to receive credit ifor them in the account which was directed by the Circuit Court.
Estate to stand charged with advances made bythe grantee,
There is, we think, no error in the manner in which the account was directed to be taken.
The parties were heard before the Master, who, after a very laborious and comprehensive examination of their accounts, has made a voluminous report, to which both parties have excepted.
The Court does not investigate the items, of an account, nor review the Master's report except as to such matters are specified in the exception, and parts of evidence particularly referred to.
It maybe observed, generally, that it is not the province ot a Court to investigate items ot an The report of the master is received true, when no exception is taken ; and the ex-are
tp
be regarded so far only as they supported by the special statements of the Master, or by evidence, which ought to he brought beforethe Court by a reference to the particular testimony on exceptor it otherwise, were the Court to look into the immense. mass of testimony laid before the Commissioner, the reference to him would be of little
avail. Such testimony, indeed, need not be reported farther than it is relied on to support, explain, or oppose, a particular exception.
1. The first exception made by Handy is, that only the sum of 5,448 dollars 26 cents, were allowed him by the Commissioner, instead of 101,167 dollars, 80 cents, the amount of his claim. This is a general exception, which comprehends, it is supposed, the particular alleged errors enumerated in the subsequent exceptions.
2.. The second exception is, that the Master did not admit his whole account on his own oath.
The conduct observed by the Master on this point, is thus specially stated by himself. “ I admitted said Asa to make oath to all charges, whether for money, specific articles, or services, which, from the circumstances of the parties, or the nature of the charge itself, could not, in my opinion, be proved by vouohers? or other legal evidence.”
Rule of practice on exceptions made to the Master's report.
This rule, adopted by the Master, is, in our opinion, one to which Handy could make no just objection There can be no propriety in admitting the party as a witness to support items in an account, which, from their character, admit of full proof. Of this description are the items which constitute his third exception. It is the demand of testimony to support his charges for repairs and improvements. These repairs and improvements are susceptible of complete proof; and, as there could be no difficulty .in procuring
it, the Commissioner did right in requiring it. The fourth exception is to the rejection of his oath to discharge himself from rents, which; as he alleged, he had not received.
Testimony of the party, how far admissible before^Sía»?
The Commissioner has made considerable deductions from the total amount of rent, if calculated for the whole time, but has rejected the oath of Handy, because he admitted that he had kept legers in which his receipts of rents were regularly entered, which were still in his possession, but which he refused to produce. The decision of the Master on this point was so obviously right, that it need only be stated to be approved.
5. The fifth exception is, that the Master has not allowed for repairs and improvements according to the measurement of. Nathan Parks, which was on oath, but according to the estimate of John Newman, which was not founded on actual measurement, but made principally by the eye.
The Master reports, that, “ in addition to the evidence produced by the parties, I appointed John Newman, an experienced and skilful measurer of carpenters’ work, to go on the premises, together with the said Handy and myself, and to measure and estimate all such repairs, and alterations, and buildings, as said Handy, being under oath, should point out as being made and executed by him.” The estimate of the said Newman, with his deposition, are referred to, and annexed to the report.
Newman deposes, that his estimate is founded
on actual measurement, except parts of the roof of one building, which he took from the measurement of Nathan Parks, and of. another, in which he was guided by the statement made by Handy himself of the length of the rafters, which accorded with his own estimate.
That a measurement thus made and proved, was entitled to more respect than the
ex parte
measurement of Parks, cannot be doubted.
6. An exception is also taken to the report, because it disallows the charge made by Handy of a note, which he says was proved.
This exception, it is presumed, was not taken before the Master, as he does not notice it, and it is too vague to be regarded. Neither the note, nor the ground on which payment is claimed, nor its amount, nor the reasons of its rejection, are stated; nor is there any reference to the evidence in support of it. Nothing is stated to induce a suspicion, that the disallowance of it was improper. Yet the Court, from its solicitude to discover whatever the record might contain on this subject, has looked through the report. Nothing is said, so far as we can perceive, respecting a note, except in the affidavit of Ziba Olney, who states, that Asá Handy became the endorser of some, note for Appleby, which was settled in some way in the board of C. W., on; which note, he believes, Handy was sued. If this is the note to which the exception alludes, the claim is absorbed in the allowance made him for the board of C. W.. But, whether it be the note or not.
the exception is totally unsupported, and cannot be sustained.
7. A seventh exception is, a charge of money alleged to have been received of Doctor Bowen, although he discharged himself therefrom on oath, in payments of different sums under twenty dollars each.
This is the application to a particular item of the principle contained in .the second exception, and is disposed of with that exception.
8, 9. The eighth exception is a repetition of the objection to the manner in which Handy is charged with repairs, the Master’s report respecting which has been already stated to be satisfactory; and the ninth is a repetition of the claim to sustain his accounts on his own oath.
10. The tenth exception is to the requisition made on him to produce his leger, in which entries had been made of the rents he had received.; a requisition to which he objects, because it contained transactions anterior to the entries of rent.
The validity of this dbjection cannot be admitted. The leger might be inspected in the presence of the defendant, Handy, and there could be no propriety in cormnencing the examination with prior transactions.
11. The eleventh exception respects the calculation of interest. The Commissioner had made what are denominated rests in the account, instead of calculating interest on each minute item. This mode of calculating receipts and expenditures, in accounts consisting of numerous
small items, is recommended by convenience, and has been generally adopted. It seems to have been properly adopted in this case.
12.
The twelfth and-last exception, is a repetition of the often repeated, and as often rejected claim, to be admitted to swear to his whole account.
The original plaintiffs except (1.1 to the allow* anee made to the said Asa Handy for buildings which were erected on the lot after the death of C. W., which are said to be no advantage to it.
But there is no proof, and no reason to believe, that these buildings were not a real advantage to the property, and did not increase the rent and the value. This exception, therefore, was properly overruled.
2.
The second exception is to the admission of the said Handy’s oath, in cases in which he refused to produce his books, and the books of c. w.
No example of this admission is given, nor is there any proof in support of the exception. The rule by which the Master was governed has been already stated and approved.
3. The third exception is a repetition of the objection to the admission of items in the account of Handy, on his own oath; and is answered by a reference to that part of the report which relates to this subject, and which has been already stated.
The fourth, fifth, sixth, and seventh exceptions, are totally unsupported by evidence, and, consequently, cannot be sustained.
We think the Circuit Court did right in confirming the report of the Commissioner, Upon the return of this report, the Circuit Qourt directed the estates to bé sold, and the money due to the said Asa Handy to be paid, in the first instance, and that one fifth of rhe residue should be paid to each of the plaintiffs, that being the distributive share of each under the law of Rhode Island. The decree proceeds to authorize the heirs who were not made parties to come in and receive their distributive shares, on paying their, proportion of the costs and charges of suit. '
The objection to this decree is, that the children of Mary Handy, and the children of Daniel Wheaton, are not parties to the suit.
All the heirs 10 ties, if within the jurisdiction of the Court.
It has been supposed, that it is not necessary, in Rhode Island, to make all the heirs parties, because, by the laws of that State, parceners can gue separately for their respective portions of the estate of their ancestor. This law would, undoubtedly, be regarded, in a suit brought on the common law side of the Circuit Court. - Its influence on a suit in equity is not so certain. But, however this iuay be, we are satisfied that a sale ought not to have been ordered, unless all the heirs had been before the Court as plaintiffs or defendants. Although the legal estate may be in Caleb Wheaton under the deed made by the administrator, yet he acknowledges himself to be a trustee for the heirs, having purchased for their benefit. They have, therefore, a vested equitable interest in the property, of which they
ought not to be deprived' without being heard. They may choose to come to a partition, and to redeem their shares by paying their proportion of the money with which the estate is charged. The bill does not state, that the heirs who are not made parties are unwilling to become so’, or cannot be made defendants by the service of process. We think, then, that there is error in proceeding to decree a sale, without bringing all those heirs before thd Court who can be brought before it; and for this error, the decree must be reversed, and the cause sent back, with liberty to the plaintiffs ^o amend their bill by making proper parties. If all the heirs cannot be brought before the Court, the undivided interest of those who do appear, is to be sold, and the lien of Asa Handy is to remain on the part or parts unsold, to secure the payment of s© much of the money due to him as those parts may be justly chargeable with.
Decree. These causes came on to be heard, &c; on consideration whereof, this Court is of opinion, that there is no error in the interlocutory decree, nor in so much of the final decree as approves and confirms the report made by the Master ; but there is error in so much thereof as directs a sale of the premises therein mentioned,, all the heirs who are shown to be interested in the said premises not being made parties, and it not being shown or alleged that they could not be made parties. So much of the decree, therefore, as directed a sale of the premises ini the
bill mentioned, is reversed and annulled, and the residue thereof is aehrmed ; and the cause is remanded to the said Circuit Court, with liber- ^ tQ pia]ntj]fg t0 make a|] proper parties, that the whole may be sold if all the heirs can be made parties, otherwise the shares of such as are made parties. Each party to pay his own costs in this Court.