Callwood v. Callwood, 11624

• Decision Date: 04 June 1956
• Docket Number: No. 11624,11624
• Citation: 3 V.I. 579
• Parties: ELSE E. CALLWOOD, Appellant v. CLIFFORD W. L. CALLWOOD
• Court: U.S. Court of Appeals — Third Circuit

3 V.I. 579

ELSE E. CALLWOOD, Appellant v. CLIFFORD W. L. CALLWOOD

No. 11624

United States Court of Appeals Third Circuit

Argued January 31, 1956

Decided June 4, 1956

See, also, 233 F.2d 784

Action by son against his mother for specific performance of a partition agreement and for an order certifying due execution of deed for recording. The District Court, Moore, J. (3 V.I. 154, 129 F. Supp. 582), entered judgment to effect that both agreement and deed were valid and that both should be recorded simultaneously and the mother appealed from this judgment. The Court of Appeals, Woodbury, Circuit Judge, held that the evidence asto whether defendant was defrauded, harassed, hurried, over-persuaded, or brow-beaten into signing deed sustained judgment of District Court.

Judgment of the District Court affirmed.JAMES A. BOUGH, Charlotte Amalie, St. Thomas, Virgin Islands, for appellant

JOHN L. PHILLIPS, JR., Charlotte Amalie, St. Thomas, Virgin Islands, for appellee

Before, MARIS, MAGRUDER and WOODBURY, Circuit Judges

WOODBURY, Circuit Judge

This litigation grows out of an attempt to partition several parcels of real property situated in the town of Charlotte Amalie on the Island of St. Thomas in the Virgin Islands, which for a number of years have been a bone of contention between the parties, a mother and her son. See Callwood v. Kean, 3 Cir., 1951 (2 V.I. 526), 189 F.2d 565; Callwood v. Virgin Islands National Bank, 3 Cir., 1955 (3 V.I. 3), 221 F. 2d 770.

The properties involved formed part of the community property, or joint estate, of the defendant-appellant Elsa or Else E. Callwood and her late husband, Richard Edgar Callwood who died in Germany on January 17, 1917, leaving a joint will executed by him and his wife in St. Thomas on April 25, 1911. The pertinent provisions of that will were set out and its legal consequences for present purposes were in large part determined in Callwood v. Kean, supra. We need not recapitulate here, for we are not now primarily concerned with the respective rights derived by the parties in the community property under that will. It is enough to say that construing that will in ac-cordance with the law of Denmark, which was in force in St. Thomas at the time of the testator's death, this court in Callwood v. Kean held: 1) That Elsa as the surviving spouse had the right to remain in possession of the entire joint estate, undivided and to the exclusion of their children,¹ until her remarriage. 2) That as the surviving spouse in possession of the property she "was entitled to sell or mortgage it or otherwise to deal with or dispose of it as absolute owner, although perhaps under a duty to compensate their children as heirs for any undue diminution in the aggregate value of their inheritance." 3) But that her right to dispose of the joint estate was limited by a provision in the will to the effect that the real properties could "only be sold or mortgaged with the consent" of one, or in the event of his death, of another of two named individuals or the appointee of the survivor of them, or in default of appointment by the survivor, a suitable person appointed by the District Court of the Virgin Islands.²

Our present concern is with an agreement entered into by the parties to partition the properties and a deed executed by them to carry out their agreement which both parties signed on Sunday, August 30, 1953.³ There can be no doubt that the parties signed the agreement and the deed. Nor can there be any doubt that within hours after the defendant signed she refused to acknowledge the deed for the reason, so she said, that she felt thatshe had been tricked, over-persuaded, harassed, and browbeaten into affixing her signature to it. The plaintiff, in this situation, brought the present suit against his mother for specific performance of the partition agreement wherein more particularly he asked the court to "take proof of the execution" of the deed in accordance with Title II, ch. 15, § 17 of the (1921) Code of Laws of the Municipality of St. Thomas and St. John (28 V.I.C. § 43), and for an order certifying its due execution so that it might be recorded pursuant to the provisions of § 22 of ch. 15 of the Code (28 V.I.C. § 122) referred to above.⁴

At a pre-trial conference the issues for decision were limited to three of fact and one of law. The questions of fact were: 1) Whether the instruments (the agreement and the deed), were procured by the fraud, artifice, and trickery of the plaintiff's attorney. 2) Whether the defendant in signing the deed did so of her own free will with knowledge of its contents and with the intention of conveying the properties in the proportions therein set out. 3) Whether the Testamentary Guardian, Carl A. Anduze, referred to in footnote 2 above, had in fact given his consent to the defendant's execution of the deed. The question of law singled out for decision was whether the defendant had the power under the will to execute a valid conveyance of the property without the Testamentary Guardian's consent. By agreement an advisory jury was impaneled to hear the evidence and the first two factual questions were broken down into fifteen interrogatories for submission to it. The jury answered all of these interrogations in the plaintiff's favor, and the court then proceeded to analyze the evidence itself. In a full and carefully prepared opinion it confirmed the findingsof the jury on each separate question. The court made no finding as to whether or not the Testamentary Guardian had in fact consented to the transaction, but ruled that in the situation presented his consent was not necessary. It also disposed of some other legal questions raised by the defendant and then entered a judgment to the effect that both the agreement and the deed were valid and that both should be recorded simultaneously in accordance with the provisions of § 22 of ch. 15 (28 V.I.C. § 122), supra. This is the judgment from which the defendant has appealed.

The appellant strenuously contends on this appeal that both the jury and the court below erred in their evaluation of the evidence. She says that the jury erred in making, and the court in accepting, findings of fact contrary to the preponderance or weight of the evidence. Wherefore she argues that this court ought wholly to disregard the findings below and on its own independent reading of the evidence in the record make findings of fact contrary to those of the jury and the District Court. The argument rests upon an erroneous premise.

[1] Whatever the old practice may have been on appeals from the District Court of the Virgin Islands in civil cases arising under local law, whether appeals in such cases were trials de novo as said in Callwood v. Kean, supra (2 V.I. 557), 189 F.2d 581, or whether in such cases this court only exercised a somewhat broader power to re-evaluate the evidence than on appeals from United States district Courts, need not concern us here. For Congress in § 25 of the Revised Organic Act of the Virgin Islands (Act July 22, 1954, ch. 558 § 25), 68 Stat. 507 (prec. 1 V.I.C), 48 U.S.C. § 1615, passed some six months before this case was tried below, made the Federal Rules of...