The opinion of the court was delivered, April 2d 1874, by
Agnew, C. J.
The full and able discussion of this case by the master, and the authorities he cites, relieve us from any elaborate opinion upon the question in controversy. From the facts found, it [288]*288is evident Mrs. Evans, then Miss Eotterall, had no motive to fulfil in executing the marriage settlement with William Elbert Evans, except to provide for the control and disposition of her property during their joint lives and Mr. Evans’s survivorship, and to regulate its succession after Ms death. A provision for her own survivorship, and especially without issue by him, seems not to have been in her own thought, and was not presented to her mind by her counsel or any one else. The nearest approach towards the subject was, when, after reading the deed of settlement alone, and unaided by the suggestion of counsel, the question arose in her mind,whether she could dispose of her property by will as she pleased, and on inquiring of Mr. Russell, her intended trustee, whether she could, he answered “yes.” When her mind was thus nearing the important question of her personal control, it was led away from its pursuit by an answer that set inquiry at rest. Thus she executed the settlement without the usual and all important clause of revocation, or even a power to will or appoint the uses, in the event of her survival, and after the settlement had performed the entire purpose which called it into existence. It does not appear that she had any reason or motive, either for disabling herself, or for benefiting her brother and sisters, by tying up her hands in case she survived her intended husband. The provision for them was evidently to furnish a channel of descent only, for her property, when she, and her husband after her, needed it no longer, and she should have no issue to take it. The conclusion of the master is, in which we fully concur, that these collateral depositaries of her estate were mere volunteers in the fullest sense of the term. There was not a spark of consideration, and not a motive to provide for them, further than to specify persons into whose lap the estate should fall, after her husband’s death surviving her.
The single question, then, is, whether equity will not set aside an act, which thus strips an owner of property, and vests it in others without motive or reason, against the interests and desire of one who has ignorantly and without intention done this unwise and evidently mistaken thing. To support the settlement in favor of such mere volunteers, would be to convert a merely accidental formality, into an act of substance and will, and to override justice, intention, and the welfare of the true owner. That the law of the land permits any one to dispose of his property gratuitously, if he please, when not prejudicial to the interests of creditors, and that his voluntary gifts, made with full intention and knowledge of the act, are irrevocable in equity as well as in law, when the power to revoke is not reserved, may he conceded. It may be admitted, also, that the mere omission of counsel to advise the insertion of a power to revoke, will not, alone, be a ground in equity to set aside a voluntary conveyance. But the absence of such a power, and the failure of counsel to advise upon it, are cireum[289]*289stances of weight when joined to other circumstances tending to show that the act was not done with a deliberate will. Therefore, when the facts show that the instrument was executed without advice or reflection, and without an intention to bind the party after the reasons and motives for executing it have passed away, and the party is again.sui juris, a court of equity will and ought to relieve as against mere volunteers, claiming without consideration or a reasonable motive for continuing the donor’s disability. There may be reasons for continuing the disability, intended by the grantor or settlor, which would influence the chancellor to maintain it; as where a settlement is made for self-protection against improvidence, or the urgent importunities of others, which the circumstances show it is difficult for the grantor or settlor to resist. But in such exceptional cases the deliberate intention of the party to tie up his own hands should clearly appear.
The cases cited by the master show very distinctly that the actual intent of the donor is necessary; and in the absence of a certain intent to make the gifts irrevocable, the omission of a power to revoke is primá facie evidence of a mistake, and casts the burthen of supporting the settlement upon him who, without consideration or a motive to benefit him or protect the donor, claims a mere gratuity against one who is mi juris, and capable of taking care of his own estate.
This mistake is not one simply of law. That would be so if the settlor, in full view of all the clauses and provisions in the deed, would interpret them for himself as being in law adequate to confer a power of revocation upon him, when in truth the law would not so expound the instrument. But in a case such as this the mistake is one of fact, so mixed with the legal effect of the writing, equity will use the mistake of fact as a means of relief. The mistake here was in not perceiving and being conscious that a case was left unprovided for which might happen, and in which event the settlor, Miss Fotterall, would desire to make a provision agreeably to her wishes and will. The settlement provided for the marriage and the survivorship of her intended husband, with and without issue by her, and for the results of these contingencies; but it failed to provide for the case of Mr. Evans dying first without issue by her. This was a state of fact not presented to her mind, and therefore she did not see that the legal operation of the deed upon the happening of this contingency became different from what she would have provided had the fact occurred to her. It was therefore not a mistake merely of the legal operation of the instrument, but a mistake flowing from the want of conception, or a misconception of facts, which might occur and were not provided for. There was a complication of contingencies presented to an unpractised mind, unaided by the counsel of her legal adviser, in the very particular in which her mind ought to have been in[290]*290structed, involving the occurrence of future facts, to which her attention ought to have been directed. The effect evidently was that her mind gave no assent to the legal operation of the instrument upon the happening of the unforeseen contingency. It is therefore precisely the case where equitable relief comes in as against mere volunteers, for whom no provision was intended in that contingency. The master fully appreciated this principle, and has cited abundant English authorities to sustain it. There are at least two Pennsylvania cases which maintain this principle of equitable relief. It is fully discussed, and American authorities cited to sustain it, in Gross v. Leber, 11 Wright 520, where obligors in a bond gave it under a mistake of their position and duties. The other case is Whelen’s Appeal, 20 P. F. Smith 410. The opinion of Judge Allison, adopted by this court, discusses at length the title of a party to equitable relief in the case of a mixed mistake of law and fact: p. 425, et seq. Hass v. Morris, 13 P. F. Smith 367, is not on this point, but has a slight bearing upon it.
In the case now before us, the legal adviser of Miss Eotterall was a gentleman at the head of his profession, whose attention had been given largely to the law of real estate and conveyancing.
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The opinion of the court was delivered, April 2d 1874, by
Agnew, C. J.
The full and able discussion of this case by the master, and the authorities he cites, relieve us from any elaborate opinion upon the question in controversy. From the facts found, it [288]*288is evident Mrs. Evans, then Miss Eotterall, had no motive to fulfil in executing the marriage settlement with William Elbert Evans, except to provide for the control and disposition of her property during their joint lives and Mr. Evans’s survivorship, and to regulate its succession after Ms death. A provision for her own survivorship, and especially without issue by him, seems not to have been in her own thought, and was not presented to her mind by her counsel or any one else. The nearest approach towards the subject was, when, after reading the deed of settlement alone, and unaided by the suggestion of counsel, the question arose in her mind,whether she could dispose of her property by will as she pleased, and on inquiring of Mr. Russell, her intended trustee, whether she could, he answered “yes.” When her mind was thus nearing the important question of her personal control, it was led away from its pursuit by an answer that set inquiry at rest. Thus she executed the settlement without the usual and all important clause of revocation, or even a power to will or appoint the uses, in the event of her survival, and after the settlement had performed the entire purpose which called it into existence. It does not appear that she had any reason or motive, either for disabling herself, or for benefiting her brother and sisters, by tying up her hands in case she survived her intended husband. The provision for them was evidently to furnish a channel of descent only, for her property, when she, and her husband after her, needed it no longer, and she should have no issue to take it. The conclusion of the master is, in which we fully concur, that these collateral depositaries of her estate were mere volunteers in the fullest sense of the term. There was not a spark of consideration, and not a motive to provide for them, further than to specify persons into whose lap the estate should fall, after her husband’s death surviving her.
The single question, then, is, whether equity will not set aside an act, which thus strips an owner of property, and vests it in others without motive or reason, against the interests and desire of one who has ignorantly and without intention done this unwise and evidently mistaken thing. To support the settlement in favor of such mere volunteers, would be to convert a merely accidental formality, into an act of substance and will, and to override justice, intention, and the welfare of the true owner. That the law of the land permits any one to dispose of his property gratuitously, if he please, when not prejudicial to the interests of creditors, and that his voluntary gifts, made with full intention and knowledge of the act, are irrevocable in equity as well as in law, when the power to revoke is not reserved, may he conceded. It may be admitted, also, that the mere omission of counsel to advise the insertion of a power to revoke, will not, alone, be a ground in equity to set aside a voluntary conveyance. But the absence of such a power, and the failure of counsel to advise upon it, are cireum[289]*289stances of weight when joined to other circumstances tending to show that the act was not done with a deliberate will. Therefore, when the facts show that the instrument was executed without advice or reflection, and without an intention to bind the party after the reasons and motives for executing it have passed away, and the party is again.sui juris, a court of equity will and ought to relieve as against mere volunteers, claiming without consideration or a reasonable motive for continuing the donor’s disability. There may be reasons for continuing the disability, intended by the grantor or settlor, which would influence the chancellor to maintain it; as where a settlement is made for self-protection against improvidence, or the urgent importunities of others, which the circumstances show it is difficult for the grantor or settlor to resist. But in such exceptional cases the deliberate intention of the party to tie up his own hands should clearly appear.
The cases cited by the master show very distinctly that the actual intent of the donor is necessary; and in the absence of a certain intent to make the gifts irrevocable, the omission of a power to revoke is primá facie evidence of a mistake, and casts the burthen of supporting the settlement upon him who, without consideration or a motive to benefit him or protect the donor, claims a mere gratuity against one who is mi juris, and capable of taking care of his own estate.
This mistake is not one simply of law. That would be so if the settlor, in full view of all the clauses and provisions in the deed, would interpret them for himself as being in law adequate to confer a power of revocation upon him, when in truth the law would not so expound the instrument. But in a case such as this the mistake is one of fact, so mixed with the legal effect of the writing, equity will use the mistake of fact as a means of relief. The mistake here was in not perceiving and being conscious that a case was left unprovided for which might happen, and in which event the settlor, Miss Fotterall, would desire to make a provision agreeably to her wishes and will. The settlement provided for the marriage and the survivorship of her intended husband, with and without issue by her, and for the results of these contingencies; but it failed to provide for the case of Mr. Evans dying first without issue by her. This was a state of fact not presented to her mind, and therefore she did not see that the legal operation of the deed upon the happening of this contingency became different from what she would have provided had the fact occurred to her. It was therefore not a mistake merely of the legal operation of the instrument, but a mistake flowing from the want of conception, or a misconception of facts, which might occur and were not provided for. There was a complication of contingencies presented to an unpractised mind, unaided by the counsel of her legal adviser, in the very particular in which her mind ought to have been in[290]*290structed, involving the occurrence of future facts, to which her attention ought to have been directed. The effect evidently was that her mind gave no assent to the legal operation of the instrument upon the happening of the unforeseen contingency. It is therefore precisely the case where equitable relief comes in as against mere volunteers, for whom no provision was intended in that contingency. The master fully appreciated this principle, and has cited abundant English authorities to sustain it. There are at least two Pennsylvania cases which maintain this principle of equitable relief. It is fully discussed, and American authorities cited to sustain it, in Gross v. Leber, 11 Wright 520, where obligors in a bond gave it under a mistake of their position and duties. The other case is Whelen’s Appeal, 20 P. F. Smith 410. The opinion of Judge Allison, adopted by this court, discusses at length the title of a party to equitable relief in the case of a mixed mistake of law and fact: p. 425, et seq. Hass v. Morris, 13 P. F. Smith 367, is not on this point, but has a slight bearing upon it.
In the case now before us, the legal adviser of Miss Eotterall was a gentleman at the head of his profession, whose attention had been given largely to the law of real estate and conveyancing. He testified that he did not remember any reference whatever being made to the fact of Miss Eotterall’s surviving Mr. Evans, or what would be done in that event; and he had no recollection as to any instructions as to a power of revocation being inserted in the instrument. In his own expressive language upon cross-examination, “there was a total silence on this subject.” Silence, in such a case, where an inexperienced young lady is called upon to act in a matter of so much importance in the future, is more expressive than words, and it derives still greater significance from another fact stated by the witness. He says, “ I have had a very large experience in drawing wills and marriage settlements, and I have always had a great aversion to the wife having a power of revocation, or a general testamentary power during the life of the husband, to subject her to the solicitations of her husband. I have a dislike to seeing property go out of a family." Now, though he adds, this does not apply to cases where the marriage has ended by the death of the husband, his strong aversion and dislike probably had something to do in closing his mind against a reference to the subject of revocation in any aspect; while, Mr. Evans then being in full life, the thoughts of the counsel were not led to reflect upon the contingency of Miss Fotterall’s surviving him. A mind, having less repugnance to the power of revocation, might probably have been more open to think of all possible contingencies, and to provide for that very one which has actually happened, and which, in this case, was thus incautiously omitted.
I have not had access to Law Rep. 8 Ch. Ap. 430, containing the case of Hall v. Hall, decided in 1872, but from the statement [291]*291of the facts contained in a former report of the case, in Law Rep. 14 Eq. 365, and the extracts contained in the argument of the appellant, I am satisfied it does not impinge upon the principle of equitable relief to be applied in this case. “ The true rule (says the citation of the appellant) is that which was laid down by Lord Justice Turner, in Toker v. Toker, 3 De Gex, Jones & Sm. 487, that the absence of a power of revocation is a circumstance to be taken into account, and is of more or less weight, according to the other circumstances of each case.” Adopting this rule of action in the present instance, and we see that all the circumstances make the absence of the revocation clause in this settlement strong evidence of mistake, and a sufficient ground of equitable relief. So the circumstances in Kekewich v. Manning, 1 De Gex, MacN. & Gord. 176, bear no real resemblance to those in this case, and therefore that case cannot possibly be considered as ruling this. The same remark may be made of the ease of Toker v. Toker, supra, while its principle sustains our decision in this case. There are other English cases more like this, in which the result of the equitable doctrine was the same we have arrived at in this case; for example, Wollaston v. Tribe, Law Rep. 9 Eq. 44, and Phillipson v. Kerry, 32 Beavan 628. Others might be added.
The decree of the Nisi Prius is affirmed with costs and the appeal is dismissed.