Lane v. Reserve Trust Co.

10 Ohio C.C. (n.s.) 512, 1907 Ohio Misc. LEXIS 314

• Court: Ohio Circuit Courts
• Decided: November 6, 1907
• Status: Published

Opinion

Winch, J.

(dissenting).

I dissent in this case because I believe that the petition does not sufficiently charge the defendant with knowledge of the imposition and fraud alleged to have been practiced upon the plaintiff by her father.

Without resort to presumptions of law, the most the defendant is alleged to know is the relationship of the plaintiff to her father and that she was making a gift of her property to him. This she had a right to do and from certain authorities, two of which I shall mention, I believe that the presumption is in favor of the validity of such gifts.

One of the cases referred to is Jenkins v. Pye, 12 Peters, 240, and part of the syllabus or head note, reads as follows:

“The complainants, as the ground to invalidate a deed, made by a daughter, of twenty-three years of age, to her father, by which she conveyed the estate of her deceased mother, to her father (he having a life estate as tenant by courtesy in the same), asserted, that such a deed ought upon considerations of public policy growing out of the relations of the parties, to be deemed void. We do not deem it necessary to travel over all the English authorities which have been cited; we have looked into the leading cases, and can not discover anything to warrant the broad and unqualified doctrine asserted; all of the cases are accompanied with some ingredient showing undue influence exercised by the parent, operating on the fears or hopes of the child; and sufficient to show reasonable grounds to presume, that the act was not perfectly free and voluntary on the part of the child; and in some cases, although there may be circumstances tending in some degree to show undue influence, yet if the agreement appears reasonable, it has been considered enough to outweigh slight circumstances, so as not to affect the validity of the deed. It becomes less necessary for the court to go into a critical examination .of the English chancery doctrine on this subject; for, should the cases be found to Countenance it, we should not be disposed to adopt or sanction the broad principle, that the deed of a child to a parent is to be deemed, prima facie, void.

“To consider a parent disqualified to take a volutary deed from his child, without consideration, on account of their relationship, is opening a principle -at war with all filial, as well as parental, duty and affection; and acting on the presumption that a parent, instead of wishing to promote the interest and welfare, would be seeking to overreach and to defraud his child. Whereas the presumption ought to be, in the absence of all proof tending to a contrary conclusion, that the advancement of the interest of the child was the object in view; and to presume the existence of circumstances conducing to that result; such a presumption harmonizes with the moral obligations of a .parent to provide for his child; and is founded upon the same benign principle that governs cases of purchases made by parents, in the name of a child; the natural and reasonable presumption in all transactions of this kind is, that a benefit was intended the child, because in the discharge of moral and parental duty. ’ ’

The opinion bears out all that is stated in the head note.

This case is quoted as ‘ ‘ the leading case ’ ’ on the subject in the case of Towson v. Moore, 173 U. S., 17, where it is also stated that Mr. Justice Story, who sat in .the Jenkins case, in the last edition of his Commentaries on Equity Jurisprudence, stated the doctrine as follows:

“The natural and just influence which a parent has over a child renders it peculiarly important for courts of justice to watch over and protect the interests of the latter; and therefore all contracts and conveyances, whereby benefits are secured by children to their parents are objects of jealousy, and if they are not entered into with, scrupulous good faith, and are not reasonable under the circumstances, they will be set aside, unless third persons have acquired an interest under them; especially where the original purposes for which they have been obtained are perverted, or used as a mere cover. But we are not to indulge undue suspicions of jealousy, or to make unfavorable presumptions as a matter of course in cases of this sort.”

If the courts are not “to make unfavorable presumptions as a matter of course in cases of this kind,” why should the bank be required to?

No answer to this question can be deduced from the statement found in the syllabus of the Towson case that, “in the case of a child’s gift of its property to a parent, the circumstances attending the transaction should be vigilantly and carefully scrutinized by the court, in order to ascertain whether there has- been undue influence in procuring it,” for that scrutiny is called forth by proper allegations of undue influence; a petition relying upon any presumption would be demurrable and invoke no scrutiny as to facts not presented by it.

So, here, the bank was not called upon to scrutinize this transaction, for there was nothing in it suggesting undue influence, if we are warranted in applying the presumptions suggested by the cases from which I have quoted.