Cummings v. Cummings
| Decision Date | 08 January 1887 |
| Citation | 9 N.E. 730,143 Mass. 340 |
| Parties | CUMMINGS v. CUMMINGS, Ex'r, and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.A. Taber, for complainant.
A husband may be a trustee for his wife, (Perry, Trusts, § 127,) and the doctrine of resulting trusts applies as well to personal as to real property. Farrelly v. Ladd, 10 Allen, 127; Davis v. Coburn, 128 Mass. 377; Childs v. Jordan, 106 Mass. 321. The purpose of Joseph Cummings in transferring the property to his son and daughter was to prevent the plaintiff from receiving her distributive share therein as his widow, and yet to retain the dividend to himself during his life. He entered into this plan for the purpose of evading the law regulating the distribution of the property of the deceased. Stone v. Hackett, 12 Gray, 227, 232, 233; Davis v. Ney, 125 Mass. 591.
The burden is upon the defendant, in a case of this nature, to show that the donor had competent and independent advice in making gifts of such a character. This rule applies independently of considerations of age and capacity. Rhodes v. Bate, L.R. 1 Ch.App. 252, 257, et seq.; Smith v. Kay, 7 H.L.Cas. 772; Griffiths v Robins, 3 Madd. 191-193; Cooke v. Lamotte, 15 Beav. 239; Sears v. Shafer, 6 N.Y. 268; Yosti v Laughran, 49 Mo. 594; Huguenin v. Baseley, 2 Lead.Cas.Eq. 1173 et seq.; Woodbury v Woodbury, 141 Mass. 329; S.C. 5 N.E. 275; Comstock v. Comstock, 57 Barb. 453.
The transaction was void as a fraud against the rights of the widow, under the statutes relating to the testamentary disposition of property. Stone v. Hackett, 12 Gray, 227, 232, 233; Davis v. Ney, 125 Mass. 591, 592. The reservation of dividends to accrue till his death from the gift, is an indication of fraud, and strong evidence that the gifts were of a testamentary character. Turner v. Jennings, 2 Vern. 612, 685; Jones v. Martin, 5 Ves. 266, note; Lewis v. Madocks, 8 Ves. 150, 157; Fortescue v. Hennah, 19 Ves. 67-70; Logan v. Wienholt, 7 Bligh, 53, 54, 86-88; Stone v. Stone, 18 Mo. 389; Davis v. Davis, 5 Mo. 183; Chase v. Redding, 13 Gray, 418; Borden v. Jenks, 140 Mass. 562, 564; S.C. 5 N.E. 623.
The agreement in regard to the note was made on Sunday, and is void. Gen.St. c. 84, § 1; Whart. Cont. §§ 382, 496; Benedict v. Bachelder, 24 Mich. 425; Stevens v. Wood, 127 Mass. 123; Bowditch v. New England M. Life Ins. Co., 141 Mass. 292, 294; S.C. 4 N.E. 798; Cumberland Bank v. Mayberry, 48 Me. 198, 202.
The reservation of interest, as a part of the agreement made at the time of the destruction of the note, shows that the transaction did not constitute an executed contract, but one which was to take effect only at the death of the father, and therefore of a testamentary character.
Powers & Powers, for respondent.
The husband had in the property the absolute common-law rights. Dunn v. Sargent, 101 Mass. 336, 339; Jackson v. Sublett, 10 B.Mon. 467, 469. By force of the common law, this money became, by marriage, the property of the testator, even if he had never exercised control over it. Legg v. Legg, 8 Mass. 99, 101; Ames v. Chew, 5 Metc. 320, 322; Washburn v. Hale, 10 Pick. 429, 432, 433; 2 Bl.Comm. 435; 2 Kent, Comm. *143; Jordan v. Jordan, 52 Me. 320; Carleton v. Lovejoy, 54 Me. 445.
At common law, a chose in action to the wife, the consideration of which was money belonging to her at marriage, or subsequently earned by her, was the sole property of her husband. Lamphir v. Creed, 8 Ves. 599, 600; Com. v. Manley, 12 Pick. 172, 175; Shuttlesworth v. Noyes, 8 Mass. 229; Barlow v. Bishop, 1 East, 432; Casey v. Wiggin, 8 Gray, 231, 233. But there was no necessity of reduction to possession by the husband. The wife's possession was only that of her husband, and his act in obtaining the certificate of new stock is strong proof that he had no knowledge of his wife's possession of the old certificate. Rice v. McReynolds, 8 Lea, 36; Conklin v. Conklin, 20 Hun, 278, 281. And, if reduction to possession was necessary, this was effectually accomplished by the husband in obtaining the certificate of new stock, (Arnold v. Ruggles, 1 R.I. 165, 178; Slaymaker v. Bank, 10 Pa.St. 373; Brown v. Bokee, 53 Md. 155;) and by disposing of this stock in his will, (Dunn v. Sargent, 101 Mass. 336, 338, 339.)
There is not the slightest evidence that Joseph Cummings received this stock upon any promise or agreement to hold it in trust for his wife. The written instrument, if it can possibly be construed as a declaration of trust, was given years after this property vested in him, and is void for want of consideration. This claim against his estate can be enforced neither in law nor equity. Fletcher v. Updike, 5 Thomp. & C. 513, 517; Turner v. Nye, 7 Allen, 176; Degnan v. Farr, 126 Mass. 297, 299; Bridgman v. Bridgman, 138 Mass. 58.
A husband has an absolute right, during his life-time, to dispose of his personal property by sale or gift; and his wife has not a legal right nor such an interest therein that the intent of the donor becomes material, nor can fraud be predicated of his act. Chase v. Redding, 13 Gray, 418, 422; Parish v. Stone, 14 Pick. 203, 204; Marshall v. Berry, 13 Allen, 43, 46, 47; Stone v. Hackett, 12 Gray, 227, 232; Stearns v. Stearns, 1 Pick. 157, 161; Padfield v. Padfield, 78 Ill. 16, 18; Dunnock v. Dunnock, 3 Md.Ch. 140, 146; Hays v. Henry, 1 Md.Ch. 337, 338; 2 Roper, Husb. & W. 16, 18; Kerr, Fraud & M. 220, and note; Stewart v. Stewart, 5 Conn. 317, 321; Cameron v. Cameron, 10 Smedes & M. 394, 397; Holmes v. Holmes, 3 Paige, 363, 364; Pringle v. Pringle, 59 Pa.St. 281, 285; Lightfoot v. Colgin, 5 Munf. 42; In re Parthimer's Estate, 1 Pears. 433, 435; Beck v. Beck, 64 Iowa, 155; S.C. 19 N.W. 876; Stew.Husb. & W. § 301.
The English decisions, under the custom of London, have no bearing upon this question. Hall v. Hall, 2 Vern. 277; Turner v. Jennings, Id. 612.
A widow, waiving the provisions of her husband's will, has a legal right, as distributee, only to the personal property of which her husband "died possessed." Her title is through his, and not paramount to it. See Pub.St.Mass. c. 135, § 3; Rev.St.Mass. c. 64, § 2; Gen.St.Mass. c. 94, § 17; Pub.St.Mass. c. 128, § 6; Acts 1861, § 1; Stearns v. Stearns, 1 Pick. 157, 161.
The finding of the master as to the intent of the donor is an inferential fact, upon which all the evidence is embodied in this report, and is submitted to the decision of this court. Parks v. Bishop, 120 Mass. 340. The act of the donor was irrevocable. Stone v. Hackett, ubi supra. The act of the donor being irrevocable, and possession and dominion having passed to the donees, it is a valid transfer and gift, although some interest or benefit is reserved to the donor. Doty v. Willson, 47 N.Y. 580, 584; McKane v. Bonner, 1 Bailey, 113; Young v. Young, 80 N.Y. 422; Viney v. Abbott, 109 Mass. 300, 303; Hildreth v. Eliot, 8 Pick. 293; Falk v. Turner, 101 Mass. 494; Ellison v. Ellison, 6 Ves. 656; Perry v. Cross, 132 Mass. 454; Stone v. Hackett, supra; Hope v. Hutchins, 9 Gill & J. 77; Riegel v. Wooley, 81* Pa.St. 227; Hills v. Hills, 8 Mees. & W. 401; Blount v. Burrow, 4 Brown, C.C. 72; Curtis v. Portland Sav. Bank, 77 Me. 151; Davis v. Ney, 125 Mass. 590, 592; Gerrish v. New Bedford Inst. for Savings, 128 Mass. 159; Hale v. Rice, 124 Mass. 292; Clough v. Clough, 117 Mass. 83; Lightfoot v. Colgin, supra; Padfield v. Padfield, 78 Ill. 16, 18.
The complainant has neither legal, equitable, nor moral right to ask that these transactions of stock be declared void. The act of Joseph Cummings, accompanied by his declaration at the time, constituted a valid release of the indebtedness of Joseph H. Cummings upon this promissory note. A valid gift of a debt may be made by the donor delivering to the donee, or destroying with intent of gift, the evidence of indebtedness. Gray v. Barton, 55 N.Y. 68, 73; Bond v. Bunting, 78 Pa.St. 210; Doty v. Willson, ubi supra; Champney v. Blanchard, 39 N.Y. 111. A gift made upon Sunday is valid, since it is not "work, labor, or business," within the meaning of the statutes of this commonwealth. Bennett v. Brooks, 9 Allen, 118, 121; George v. George, 47 N.H. 27; Beitenman's Appeal, 55 Pa.St. 183. A gift is within the statutory exception of "works of necessity or charity." Bennett v. Brooks, supra; Com. v. Knox, 6 Mass. 76; Cronan v. Boston, 136 Mass. 384; Doyle v. Lynn & B.R.R., 118 Mass. 195. A gift, or a contract, or the rescission of a contract, fully executed upon Sunday, is valid, through the absence of any legal remedy. Myers v. Meinrath, 101 Mass. 366, 367; Johnson v. Willis, 7 Gray, 164; King v. Green, 6 Allen, 139; Worcester v. Eaton, 11 Mass. 368, 376; Greene v. Godfrey, 44 Me. 25; Shuman v. Shuman, 27 Pa.St. 90; Chestnut v. Harbaugh, 78 Pa.St. 473; Ellis v. Hammond, 57 Ga. 179; Meader v. White, 66 Me. 90.
OPINION
both of whom are children of Joseph Cummings by a marriage previous to that with the plaintiff. The defendant Joseph H. Cummings is also the executor of his father's will. By this bill the plaintiff seeks to recover certain shares of bank stock, or the value thereof, bequeathed to Mary A. Wixon, a daughter of Joseph Cummings, and of the plaintiff, which shares have been transferred to Wixon by the defendant Joseph H. Cummings, as executor; the plaintiff claiming that the same were her sole property. By the bill the plaintiff also seeks to recover the share which she claims to be entitled to, as widow, in certain other personal property alleged to be a part of the estate of Joseph Cummings, now in the possession of the defendants, or of one of them.
While the plaintiff was provided for by her husband's will, she has waived this...
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