Sullivan v. Sullivan

23 F. Cas. 362, 21 Law Rep. 531

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: July 1, 1856
• Status: Published

Opinion

CURTIS, Circuit Justice.

It was properly-conceded by the complainant’s counsel at the hearing, that John L. Sullivan, in his own right, and independent of the claims of his children, could not have the aid of a court of equity to compel the representatives of the trustees to replace this trust fund. Because he not only consented to and participated in whatever breaches of trust were committed, but was from time to time the recipient of the trust property, and, with a knowledge of all the facts, released the trustees from accountability, and bound himself to save them harmless against all claims. Beyond all question therefore, he cannot now complain of those breaches of trust.

The right of his daughter Emily to an account requires a distinct examination. It appears that she executed an instrument, bearing date on the 27th day of September, 1826, which purported to convey to her father all her right to the trust fund, authorizing and requiring the trustees to account with the father, and empowering them to negotiate with him for such disposition of the trust funds as might be satisfactory to him. It further appears that immediately after the execution of this deed, the father received from one of the trustees the sum of twenty-five hundred dollars, and finally released them from all accountability; and this assignment by Emily, and release by John L„ her father, and her acquiescence in the assignment "down to the year 1842, when she became insane, and the acquiescence of John L., her father and guardian, down to the filing of this bill in December, 1854, are set up and relied on by .the answer as a bar to the claim on behalf of Emily, lor an account of the trust fund. To this it is replied by the complainant that nothing passed by the deed which Emily executed, because she had then no interest. It is not strictly true that she had then no interest. Her right to participate in the trust fund was contingent on her survivorship of her mother. But it was such an expectancy as is recognized by a court of equity as a subject for a valid contract, the specific execution of which may be decreed, or if the instrument of assignment be properly drawn the assignee may be placed by it in the same situation as the assignor was, and substituted to all the rights which the assignor could in any event have. Even a court of law considers the deed of an expectant heir in the lifetime of his ancestor, accompanied by a covenant of warranty, as effectual to pass the title which subsequently descends on the heir, that title enuring by way of estoppel to the assignee. Trull v. Eastman, 3 Metc. [Mass.] 121. And undoubtedly a court of equity, which in many cases treats that as done which was agreed to be‘done, will not allow a less effectual operation to sjch a covenant. And I consider it to be settled that an assignment by a cestui que trust of an equitable interest by way of a contingent remainder in either realty or personalty, made for a valuable consideration, is effectual to pass the interest of the assignor, and substitute the assignee in place of the assignor as to all the rights which in any event might -or would have accrued to the assignor. In Varick v. Edwards, Hoff. Ch. 382, the vice-chancellor reviewed the decisions on this subject, and it is quite unnecessary to restate them here. I apprehend there has been no real question on this point for many years; but in recent times the question has been much agitated whether an assignment of an expectant interest, either vested or contingent, made by way of gift, without any valuable consideration, would enable a mere volunteer to claim the aid of a court of equity. In Meek v. Kettlewell, 1 Hare, 464, decided by Vice Chancellor Wigram, in 1842, it was held that a voluntary assignment of an expectant interest in a trust fund did not create a trust in favor of the assignee which a court of equity would enforce, and this decision was affirmed on appeal, by Lord Chancellor Cottenham, in 1843. 1 Phil. Ch. 342. In Kekewich v. Manning, Vice Chancellor Wigram repeated this decision; but on appeal, after a very elaborate examination of the authorities, and a very attentive consideration of the principles of equity appropriate to the question, Lord Cranworth and Sir J. L. ICnight Bruce, lords justices, decided that such an assignment, though voluntary, was a complete alienation, and created a trust enforcible in equity by the assignee. 12 Eng. Law & Eq. 120, Dec. 1851. This decision professes to overrule Meek v. Kettlewell, which I infer from Voyle v. Hughes, decided by Vice Chancellor Stuart in 1854 (23 Eng. Law & Eq. 271), is no longer law in Westminster HalL

The distinction between an application by a volunteer to a court of equity, to enforce a promise to create a trust, and to enforce a trust already created, on which the present English doctrine rests, was recognized in Neves v. Scott, 9 How. [50 U. S.] 211; Id., 13 How. [54 U. S.] 268. And njy opinion is that the assignment now in question, if merely voluntary, was yet sufficient in point of law to create a ti*ust in favor of John L. Sullivan, by his daughter Emily, as it respects all her rights and interest in the trust fund, which a court of equity would enforce in his favor, provided the assignment was not rendered invalid by some extraneous cause. And that consequently, by virtue of such an assignment, if otherwise valid. John L. Sulivan became the cestui que trust, and as such, capable of releasing the trustees; and, further, that as he became the cestui que trust as respects Emily’s share, and as he had already consented to the breaches of trust, of which complaint is now made, he is thereby, as well as by his subsequent release under seal, by which he obtained the further sum of twenty-five hundred dollars, debarred from now complaining of those breaches of trust. See Nail v. Punter, 5 Sim. 555.

So that it only remains to inquire whether the assignment from Emily- Sullivan to John L. Sullivan, her father, was a valid transaction. It purports, on its face, to be made in consideration of one dollar, “and divers other good considerations, and valuable considerations, consisting of advances made in anticipation of our residuary right in said trust fund.” It is not stated in the deed to whom the advances were made. In point of fact they were made to the father. For though it appears that moneys were furnished to the children of John L. by his brother, William Sullivan, one of the trustees, yet it is quite apparent, I think, that they were the free gift of the uncle to his nieces and nephews, and were not intended by way of advancement on account of their expectant interest in the trust fund. Prima facie, therefore, as well as upon the proofs, the assignment from Emily to her father appears to have been made without any valuable pecuniary consideration. If this transaction had been between strangers, it would have been the duty of the court to set it aside; for an assignment of an expectant interest by way of remainder requires for its support not only a valuable consideration, but the payment by the purchaser of the full market value of the interest conveyed. But a transfer of an expectant interest by a child to a parent is not viewed by a court of equity as the sale of the interest, but as a family arrangement, the validity of which is not to be tested by an inquiry whether an adequate price was paid. In Bellamy v. Sabine, 2 Phil. Ch. 439. the master of rolls said: “It has often been decided that in such transactions between a father and son the ordinary rules which are applied to the acts of strangers are not to regulate the judgment of this court. In such cases apparent inadequacy of consideration, and the circumstance that the property is re-versionary, have but little weight. Fraud will indeed vitiate these, as well as all other transactions; but arrangements between members of the same family to assist their several objects, or relieve their several necessities, are aflected by so many peculiar considerations, and are influenced by so many -different motives, that they have been wisely withdrawn from the influence of the ordinary rules by which this court is guided in adjudicating between other parties.” The case of Tweddell v. Tweddell, Turn. & R. 1, and the authorities upon which it proceeded, establish this distinction. See, also, Wallace v. Wallace, 2 Dru. & War. 452. The supreme court, in Jenkins v. Pye, 12 Pet. [37 U. S.] 141, proceeded on this distinction, which must be considered as firmly settled, both in America and in England. But I apprehend there is an important difference between the English law and our own, in respect to the proofs required to be made by a parent who takes a voluntary conveyance from his child. It is agreed that such transactions are to be watched with much jealousy, for the purpose of detecting the operation of any undue influence, for which the relation of the parties affords means and opportunity; and it is also agreed that if ignorance of the rights conveyed, or undue influence is detected, the conveyance is to be set aside. But it seems to be settled in England that when a father obtains, by donation from a child recently come of age, a large pecuniary benefit, the burthen of proving that the transaction was righteous falls on the person taking the benefit. In Hoghton v. Hoghton, 11 Eng. Law & Eq. 134, the master of the rolls reviewed the authorities, and held that to be their effect. In Jenkins v. Pye, 11 Pet. [36 U. S.] 241, the supreme court had many of these decisions before them, and without expressing an opinion upon the existence of such a rule in England, distinctly and pointedly refused to establish it in the equity jurisprudence of the United States. The passage is too long to be here quoted; but the rule there laid down, and which the court must follow is, that such a conveyance is prima facie valid, and that it is incumbent on the party who denies its validity, to prove such an undue influence as requires the court to avoid the gift, and restore the parties to their former condition.

It follows that the assignment from Emily Sullivan to her father, John L. Sullivan, which is set up in the answer, is prima facie valid; and that it is incumbent on her guardian, who would impeach it, to allege in his bill and support by his proofs such facts as are sufficient to render 'the deed invalid. I say to allege such facts in the bill, for I apprehend it is always true, that when an answer sets up as a bar a deed which is prima facie valid, and the execution of which is admitted, the complainant can avoid that bar only by charging in his bill, and supporting by his proofs, such extraneous facts as render the deed invalid. Now this bill contains no such charge. It'says that if Emily ever executed a release purporting to discharge the trustees from accountability, it was obtained by fraud and duress. But the instrument now in question is not such a release. And if it were, I should have much difficulty in holding that such a general charge would be sufficient to let the complainant in to prove that particular kind of fraud which a court of equity lays hold of as undue influence. It is not necessary to set forth minute facts, still less circumstances which tend to establish them; but the general rule is that particular acts of fraud must be stated. Myddleton v. Lord Kenyon, 2 Ves. Jr. 391, and note a; Munday v. Knight, 3 Hare, 497. It must be remembered, also, that if undue influence of a parent over a child was exerted in this case, it was by the complainant himself. It can hardly be supposed that the complainant by this general charge of fraud intended that he himself committed it. He has not charged by whom it was committed, or what was its nature or character, still less in what acts it consisted. I think it would be very unsafe to rest a decree on so vague an allegation. But if this difficulty were overcome, X should still decline to investigate the merits of this transaction, because the lapse of time, and the death or alienation of mind of the principal parties, have rendered it a most hazardous task to attempt such an investigation, and have supplied the respondents with a ground of defense which, in my judgment, is impregnable. This deed of assignment from Emily to her father was executed in 182G. In 1828 Jonathan Amory died. In 1839 William Sullivan died. Emily continued sane until 1852; and down to that time there is no allegation in the bill, and no evidence that she ever felt or expressed any wish, or considered that she had any right to avoid the assignment. Her acquiescence for twenty-six years is complete, and was terminated only when she became incapable ei-

Fraudulent Conveyance — Relief Barred by Long Acquiescence. See Badger v. Badger [Case No. 718], citing above case.

ther of acquiescence or objection. It is said that her mother survived until 1854, and consequently her right continued to be contingent, and by way of remainder only, till that time. This is true. But it is also true that if the deed of assignment was voidable for undue influence, or any other extraneous cause, it was competent for her at any moment to file a bill to have it decreed to be void and delivered up to be canceled. And not only so, but as entitled even contingently to a remainder, she could have had the aid of a court of equity to protect the fund, and secure her rights therein; there being this distinction between acquiescence at law and in equity, that at law the right of the remainder man is treated as accruing only when the particular estate is terminated and his pos-sessory. right begins; while in equity the owner of even a contingent remainder in personalty may file his bill for the protection of the trust fund against breaches of trust which threaten its existence; and consequently as soon as he discovers such breach of trust, being sui juris, he begins voluntarily to delay proceedings. Andrew v. Wrigley, 4 Brown, Ch. 125. No explanation of this acquiescence is given or attempted by the bill. The case stands, therefore, upon the fact of such acquiescence for twenty-six years, the insanity of the complainant at the end of twenty-six yeai's, and her consequent inability to restrain these proceedings which she may know to be unfounded, and the death of both of the trustees, and the consequent impossibility of obtaining from them such explanations and facts as might change the whole face of the transactions.

When we remember that what is to be investigated is a family transaction, that it involves and depends upon the particular circumstances of the parties, and the private and personal views and motives growing out of those circumstances, I think it must be admitted that an attempt to investigate it, after the lapse of twenty-eight years, and the death or inability of the complainant and tlie-trustees, would be far too hazardous an enterprise for a court of equity to attempt. And I take it to be clearly settled that no such attempt is to be made. In Jenkins v. Pye, already referred to, the supreme court held that after the lapse of eighteen years, and the death of the principal parties, the court ought not to interfere. Mr. Justice Catron differed with the other members of the court on some points, but he held the lapse of time to be fatal to the bill, and cites many authorities to the point. Many more might be cited, but I will refer only to McKnight v. Taylor, 1 How. [42 U. S.] 161, and Bowman v. Watten, Id. 189, and Roberts v. Tunstall, 4 Hare, 257, where the recent English cases are stated. Let a decree be entered dismissing the bill with costs.