Dutch v. Scribner
| Decision Date | 14 December 1955 |
| Parties | Alfred J. DUTCH and Percy H. Dutch v. Russell O. SCRIBNER. |
| Court | Maine Supreme Court |
McLean, Southard & Hunt, Augusta, Clyde R. Chapman, Belfast, for plaintiffs.
Edward A. Weatherbee, Jr., Lincoln, John H. Needham, Bangor, for defendant.
Before FELLOWS, C. J., and WEBBER, BELIVEAU and TAPLEY, JJ.
On appeal, by plaintiffs, from the decree of a single Justice sitting in equity.
It is an oft-repeated rule of law that the plaintiffs cannot succeed on their appeal unless they satisfy the court that the ruling and findings of the Justice below were 'clearly wrong'. We are of the opinion that the findings were not wrong, clearly or otherwise.
This is a bill brought by the plaintiffs against the defendant, executor of the estate of Myra T. Dutch and sole beneficiary under her will dated May 26, 1944. The bill seeks to compel this beneficiary to execute to the plaintiffs a deed of the real estate devised to Myra T. Dutch by Altana E. Dutch, her husband, in his will dated July 20, 1939 and to charge this defendant, as trustee, with the value of the personal property in the amount of $6,270.66, which the widow took under that will.
By the terms of the Altana E. Dutch will,
'Third: I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, wherever found and however situated, to my wife Myra T. Dutch, to have and to hold during the term of her natural life and at her decease I give, devise and bequeath whatever remains of my said estate to my sons Alfred J. Dutch and Percy H. Dutch in equal shares.'
Altana E. Dutch died March 8, 1944 and the wife, Myra, on the 31st day of January 1953.
On June 30, 1944 the plaintiffs executed a quitclaim deed of their interest in the real estate acquired by them under the Altana E. Dutch will, to their stepmother, Myra T. Dutch.
The plaintiffs allege this quitclaim deed was executed because of a promise made by Myra that she would will the real estate to them, and, to void this conveyance, paragraph 8 of the plaintiffs' bill alleges that Myra 'in violation of her said agreement and in fraud of the rights of the plaintiffs made an executed the will and testament set forth in paragraph 7 hereof as Exhibit C, whereby legal title to said real estate described in paragraph number 3 hereof descended in fraud of the rights of the plaintiffs into the possession and control of the defendant, Russell O. Scribner.'
The plaintiffs had the burden of showing such a promise as they allege, or the perpetration of a fraud by Myra. The evidence for the plaintiffs is that sometime prior to the execution of the quitclaim deed to Myra, June 30, 1944, Myra while out with Alfred J. Dutch in his automobile, as a guest, is alleged to have made the promise on which the plaintiffs rely. That testimony is given by Alfred, Maude his wife, and Dryden, their son. This was nearly 9 years before Myra died and while the evidence shows that the close friendship, which had existed for a good many years, continued and they saw each other frequently, no mention was again made of the alleged promise.
It would seem that if what the plaintiffs claim had really occurred, Alfred's interest would have caused him, during the nine-year period, to inquire or ascertain if Myra had fulfilled or complied with the alleged promise. Alfred was called to the office of Attorney Morse prior to the execution of the quitclaim deed and there they discussed Myra's desire to have full title to the real estate and, after that discussion Alfred agreed to comply with her wishes, if Percy, in California, would join him. Mr. Morse testified that no mention was made, or discussion had, of the alleged promise by Myra and in this he is corroborated by Alfred who testified that this phase of the case was not discussed with Mr. Morse at any time.
Plaintiffs' Exhibit No. 2 is a letter from Mr. Morse to Percy H. Dutch of San Bernardino, California, in which Mr. Morse set out the reasons why Myra felt she should have full title to the real estate and informed Percy that Alfred would be willing to join in such a conveyance.
The answer from Percy Dutch as shown by Exhibit 1, dated June 30, 1944, states that he would release his interest in the home place as requested. No mention is made by Percy, in his letter to Mr. Morse, of any...
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... ... Cf. Oullette v. Bolduc, 440 A.2d 1042, 1046 (Me.1982) (party seeking specific performance has burden of showing a meeting of the minds); Dutch v. Scribner, 151 Me. 354, 118 A.2d 887, 888 (1955) (party seeking specific performance has burden of showing fraud or promise). The party seeking ... ...
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