Whitehouse v. Bolster

Decision Date07 August 1901
Citation50 A. 240,95 Me. 458
PartiesWHITEHOUSE v. BOLSTER et al.
CourtMaine Supreme Court

(Official.)

Exceptions from supreme judicial court, Kennebec county.

Action by Seth C. Whitehouse against David P. Bolster, trustee, and Faustina M. Bolster. Verdict for plaintiff. Motion for new trial, and exceptions. Motion and exceptions overruled.

Argued before WISWELL, C. J., and SAVAGE, FOGLER, POWERS, and PEABODY, JJ.

L. C. Cornish and N. L. Bassett, for plaintiff.

H. M. Heath and C. L. Andrews, for claimant.

SAVAGE, J. Ation by surety on a probate bond against a cosurety for contribution. The action was commenced by trustee process.

The issue here is between the plaintiff and the wife of the defendant, who is the claimant of the funds in the hands of the several trustees. The funds sought to be held by the trustee process are in part certain deposits in bank made by the defendant in the name of his wife, and in part one—half of the estate of Jennie M. Bolster, daughter of the defendant and claimant, who died intestate and unmarried, leaving her father and her mother as her only heirs. As to the deposits in bank, it is conceded that they were gifts from the defendant to his wife, made after he had signed the probate bond in question. As to the half of the daughter's estate, there is no controversy but that the defendant, who was the administrator of the estate, as well as heir at law of one—half of the same, soon after his appointment as administrator, and several years after the signing of the bond, transferred to his wife, who was the other heir, not only her distributive share of the estate, but likewise his own. The plaintiff claims that this transfer by the defendant of his own share was a voluntary conveyance,—a gift. The claimant, on the other hand, maintains that her husband took no beneficial interest in the daughter's estate, as heir or distributee, but that what would otherwise have been his share descended to him charged with a parol trust for the benefit of the claimant,—a trust created by the daughter in her lifetime,—and hence that, in transferring the share in the daughter's estate to the claimant, the defendant was making no gift, but was simply executing a valid trust, and that the defendant had no interest whatever in his daughter's estate which was available for creditors.

The plaintiff, in legal contemplation, became the creditor of the defendant at the time he signed the bond as cosurety with the latter. Howe v. Ward, 4 Me. 195; Thompson v. Thompson, 19 Me. 244, 36 Am. Dec. 751; Danforth v. Robinson, 80 Me. 466, 15 Atl. 27, 6 Am. St. Rep. 224. And, as such creditor, he now seeks to avoid the foregoing gifts and transfers made by the defendant to his wife, as being fraudulent as to creditors.

The jury, under instructions to which exceptions were taken, and which we must consider, rendered special verdicts to the effect that all of these gifts and transfers were made with the intent on the part of the defendant to hinder, delay, or defraud his creditors. The claimant filed a motion to set aside these verdicts, but that motion is not pressed. In fact, we understand the learned counsel for the claimant, in argument, to concede that, if the instructions to the jury were correct, there was sufficient evidence to warrant the verdict.

There is, however, a preliminary exception to be discussed and determined before we come to a consideration of the instructions excepted to relating to the fraudulent character, or otherwise, of the gifts and transfers. The claimant, insisting that the defendant's share in the daughter's estate came to him charged with a trust, and that thereby the entire beneficial interest belonged to the claimant, complains that the instructions given to the jury entirely removed from their consideration the question whether there was in fact a trust or not. We think that this complaint is well grounded, and that the exceptions upon this point must be sustained, if there was any evidence, or legitimate inferences from the evidence, that tended to support the claimant's contention as to the fact of a trust. Nugent v. Railroad Co., 80 Me. 62, 12 Atl. 797, 6 Am. St. Rep. 151. This contention was material, for if there was a valid trust, and the defendant tool no beneficial interest in his daughter's es tate, it needs no argument to show that the transfer of the naked interest held in trust for his wife violated no rights of his creditors, and was not fraudulent as against them On the other hand, if there was no evidence from which a jury would be warranted in finding that a trust had been created, then the instructions complained of on this point become immaterial, and it will be unnecessary to discuss their correctness as abstract propositions of law.

It is urged by the learned counsel for the plaintiff that, inasmuch as the evidence was undisputed, whether a trust had been created was a question of legal construction for the court. This is not so, necessarily. Although the evidence was undisputed, yet, if different legitimate inferences might be drawn from the evidence, it presented a question of fact for the jury. If there were any warrantable Inferences to be drawn from the evidence, tending to support the contention of the claimant, the question should have been submitted to the jury. El—well v. Hacker, 86 Me. 416, 30 Atl. 64. With these rules in mind, we will now consider this question.

The daughter died October 1, 1895. Less than 10 days before her death the talk occurred which it is claimed created a parol trust. The daughter had previously received an invitation from a lady friend to accompany her across the ocean the latter part of January, 1896. The father and mother testified that they were in apprehension of the dangers attending such a trip, owing to the inclement season of the year when she proposed to go, and the countries she was intending to visit, and that they cautioned her to consider the question seriously before she accepted the invitation. The testimony is to the effect that, after considering the matter further two or three days, the daughter informed her parents that she had concluded to accept the invitation and go. Thereupon ensued the following conversation, as given in the version of the defendant, her father: "After she had said that, her mother says, 'Jennie, what do you want done with your things in case you do not return?' Her reply was, 'Mother, if you outlive me, everything 1 possess 1 give to you, and will so state it in writing before I go away.'

"Ques. Did she say anything to you [the defendant] in regard to carrying out her wishes?

"Ans. She remarked to me that she wanted me to see that her wishes were complied with.

"Ques. What reply, if any, did you make to her at this time?

"Ans. I told her everything should be done as she wished it."

The claimant's version, more particular than her husband's, but we think not essentially different, is as follows: "She finally did decide to go, and I told her I thought there was so many uncertainties, —a great many vessels I had read of had been detained; and, in case anything like that happened to her. what would she want done. She said that in case anything like that happened, she says, 'more than half of it is already yours, and before I leave, I will give you the whole, and I will have it done in writing.' She said she would have plenty of time; she wasn't going until January, and she would attend to it. But she was taken sick within, —well, in less than two weeks,—and she didn't have any consciousness. She was taken unconscious, so there was nothing done about it.

"Ques. Was there anything said to your husband by her at that time?

"Ans. Yes; she told him to see to it...

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  • In re Estate of Drwenski
    • United States
    • United States State Supreme Court of Wyoming
    • January 28, 2004
    ...the conclusion drawn on reason from premises established by proof. In a sense, it is the thing proved. Guess-work is not.' Whitehouse v. Bolster, 95 Me. 458, 50 A. 240." Wright v. Conway, 34 Wyo. 1, 241 P. 369, reh. denied 34 Wyo. 42, 51, 242 P. 1107, 1110 Whipple v. Northern Wyoming Commun......
  • Jandro v. State
    • United States
    • United States State Supreme Court of Wyoming
    • October 11, 1989
    ...conclusion drawn on reason from premises established by proof. In a sense it is the thing proved. Guess-work is not.' Whitehouse v. Bolster, 95 Me. 458, 50 A. 240 [1901]." Wright v. Conway, 34 Wyo. 1, 241 P. 369, reh. denied, 34 Wyo. 42, 51, 242 P. 1107, 1110 (1926). * * * * * *"An inferenc......
  • Mead v. Robertson
    • United States
    • Court of Appeals of Kansas
    • May 25, 1908
    ...made; and it is the same with those in this country, as may be verified by an examination of above citations. Thus in Whitehouse v. Bolster, 95 Me. 458, 50 A. 240, it said in argument that the rule had been modified, in some degree, in Grant v. Bradstreet, 87 Me. 583, 33 A. 165, 33 A. 165, ......
  • Mead v. Robertson
    • United States
    • Court of Appeal of Missouri (US)
    • May 25, 1908
    ...Bradstreet, 87 Me. 583, 33 Atl. 165; Gilpatrick v. Glidden, 81 Me. 137, 16 Atl. 464, 2 L. R. A. 662, 10 Am. St. Rep. 245; Whitehouse v. Bolster, 95 Me. 458, 50 Atl. 240; Brooke v. Chappell, 34 Wis. 405; 1 Underhill on Wills, § 153; Thornton on Gifts & Advancements, § 437; 1 Beach Modern Eq.......
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