Opinion
05-06-1887
PETTY'S ADM'RS v. YOUNG, one of Petty's Adm'rs.
L. De Witt Taylor, for complainants. W. H. Morrow, for defendant.
On bill for relief.
L. De Witt Taylor, for complainants.
W. H. Morrow, for defendant.
BIRD, V. C. I regret to say that there seems to be no path that I can discover which will lead me to advise a decree looking towards some final adjustment of the controversy between these parties. The bill is so framed that,as I understand the evidence, I can only advise that the bill be dismissed. The defendant had it in her power to frame an issue byway of cross-bill, and thus in one suit to settle her rights. She has simply answered the allegations in the bill. If the court had the power, it ought to require the parties in such case to make an issue that would meet the whole case, and warrant a final adjudication; for from all appearances the merits of the case on both sides are before the court. Such observations would be as much out of place as they are unavailing, were it not for the interest that the public have in making all reasonable limits to litigation.
Susan Petty died at the age of 78 years. She left surviving her three sons and a daughter. Two of the sons and the daughter undertook to administer upon her estate. The mother had given the daughter, Mary, a note for $3,000, dated October 13, 1882. She died in January, 1885. Mary presented a claim to her brothers, as administrators, for the amount of principle and interest of this note. They filed the bill in this cause against her, alleging undue influence in obtaining the note, and that the mother was not competent to transact any business at the time of giving it, and that it was procured to be given through fraud, and that it is wholly without consideration. There is also an allegation that Mary pretended that the consideration of the note was services rendered to her mother, followed by a charge that no such services were ever rendered. The prayers of the bill are that Mary may discover and set forth any agreement that was made respecting such service, and any account that she may have for such service, or any other consideration for such note, and that she may be restrained from assigning the note, and also from prosecuting any action at law against the complainants to recover the amount due thereon, and for general relief.
It will be perceived that the complainants seek simply to restrain Mary from realizing anything on the note. There is no offer to pay in case it should appear to be equitable and just to allow her the amount of the note, or a part of it. Each of the allegations in the bill touching the validity of this note is fully denied by the answer. This put the complainants to their proof, and, in my judgment, they have failed in every particular. The intestate was old and infirm in body, but not without a clear comprehension of her own business affairs. The testimony of all of the witnesses produced by the complainants shows this. It was urged that, because she did not attend to the details of loaning her money, she had grown feeble and incompetent. Not at all. This is strong proof of her continued merit and good sense. At such times she either called in her son, or referred the party with whom she chose to deal to him; and this she had done for many years before the note was given. If this transaction can be impeached on any such ground, then, most likely, many others have no firmer foundation.
But the mother was equally prudent or cautious on the occasion of giving the note to Mary for $3,000. She had made several attempts to have a will prepared. For this purpose she had consulted her physician; and, about two weeks before the note was executed, she instructed him to draw a will for her, giving to him the particulars. On the day that the note bears date, he called upon her with what he had prepared for her. Among other things she had directed him to give Mary a legacy of $2,000. This he had done. But she directed him to alter it to $3,000, and gave her reasons therefor. At this time some trouble arose about witnesses to the execution of the will, and the old lady requested the doctor to draw the note now in question. This he did, and she executed it, and gave her reasons for so doing. Of course, such transactions, between aged parents and their children, are always carefully scrutinized by the courts. It must appear that everything was or is fair, reasonable, and just. The courts will not allow the aged to be unduly influenced, or advantage taken of their weakness and infirmity. But I do not see that these wholesome rules have been at all violated in this case.
Upon the question of consideration, enough appears, independently of the claim for services, to require the court to pause a long time before decreeing that there was no consideration. It is in evidence that the mother said many times that she had never paid Mary the purchase price for her interest in the land of which her husband and Mary's father died seized, and which she had bought of Mary, which was about $1,000. The evidence is that the mother intended to secure this sum, and the interest thereon from 1869, to Mary. 1 make these observations, not to show that I have any judgment or opinion as to the merits of the cause, but to show how inequitable it would be for the court to attempt now to restrain Mary from taking any steps towards collecting the amount which may be found to be due on this note.
It is very true that I do not know what may be in the mind of counsel respecting the merits of this dispute, nor yet what they may conceive to be the equitable rights of the parties, which can be hereafter presented, in case the controversy shall be renewed; but so strongly do I feel that the whole discussion should terminate with these proceedings, and that it is the plain duty of counsel so to fashion the pleadings that such may be the result, that I will give the defendant an opportunity to apply for an order to open the decree which I shall advise, and for leave to amend her answer by way of cross-bill praying for such relief upon her claim as she may be advised, provided such application be made within 30 days after a service of a copy of the decree upon her solicitor.
I will advise that the bill be dismissed, with costs.