Duvale v. Duvale

• Decision Date: 13 October 1896
• Citation: 54 N.J.E. 581,35 A. 750
• Parties: DUVALE v. DUVALE.
• Court: New Jersey Court of Chancery

35 A. 750

54 N.J.E. 581

DUVALE

v. DUVALE.

Court of Chancery of New Jersey.

Oct. 13, 1896.

Bill by Charles L. Duvale against Celine M. Duvale to have a trust declared in certain property in favor of complainant. Decree for complainant advised.

H. S. Terhune, Charles H. Ivins, and C. L. Corbin, for complainant.

William B. Guild, R. Wayne Parker, and Courtlandt Parker, for defendant.

REED, V. C. This bill is filed by a husband against his wife. The subject-matter of the suit concerns a house and its curtilage, situated at the Atlantic Highlands, N. J., the legal title to which is in the wife. The land was purchased and improved, and the buildings upon it were erected with the money of the husband. The prayer of the bill is that the wife may be declared to hold the said property in trust for her husband, or that she may be compelled to execute a will in his favor for it.

The admitted facts are these: On May 7, 1890, the husband contracted with one Kay and one Cornwall to convey to him a lot of land for the sum of $3,000. On June 12, 1890, a deed was made by Kay and Cornwall to the wife for said lot. The husband began the erection of a dwelling house thereon, and also the general improvement of the property. On September 9, 1891, he purchased an adjoining lot from one Bernadou for $1,000. On July 29, 1892, he bought a third tract, adjoining the homestead tract, from one Swift, for the sum of $2,250. The titles of both these lots were taken in the name of the wife. In the purchase of these lots, in the erection of the dwelling house and the stables thereon, and in the grading and terracing of the grounds, the husband has spent from $35,000 to $45,000.

Upon the bare facts so far disclosed no trust in favor of the husband results. The fact that the grantee is the wife of the payor of the consideration rebuts prima facie the presumption of a resulting trust in the payor, which trust would have arisen had the grantee been a stranger. The grantee being a wife, the presumption is that the property was put in her name as a settlement. But the presumption that the deed was made by way of advancement or settlement is a rebuttable presumption. Facts antecedent to or contemporaneous with the purchase, or so immediately following the purchase as to constitute a part of the same transaction, may be put in evidence for the purpose of refuting the presumption of a settlement. Lewin, Trusts, marg. pp. 175177; Read v. Huff, 40 N. J. Eq. 229. So, also, subsequent admissions by either husband or wife against his or her own interests are evidential far the same purpose. Lewin, Trusts, marg. p. 177; Midmer v. Midmer's Ex'rs, 26 N. J. Eq. 299-305. While the same kind of evidence which raises the presumption is admissible to overcome it, the circumstances in both instances must be so clear as to leave no reasonable doubt as to the intention of the parties. Peer v. Peer, 11 N. J. Eq. 432-439; Read v. Huff, supra. The testimony upon both branches of the complainant's insistence, viz.: First, that there was a resulting trust; and, second, that there was a promise to make a will for a consideration which has been performed,— is so entangled that a single statement of the facts disclosed upon the hearing must include that which bears upon both points. The testimony of the parties themselves upon the substantial points is entirely contradictory. The husband swears that he and his wife, previous to the execution of the deed for the first lot, had been living for three consecutive summers at the Atlantic Highlands; that his wife, finding that the climate there suited her, urged him to buy a home at that place. Influenced by her request, he contracted in writing, in his own name, for the purchase of the first lot. Between the date of the making of the contract and the date of the execution of the deed for it he had several conversations with his wife concerning the matter. In one or more of these she said to him: "Look here, if you put that land in my name, it will prove to me that you are not going to run away with that woman you are keeping in New York, and it will make me happy." Mr. Duvale says: "She told me that she would sign any paper I wanted her to sign to secure me. Whenever I wanted, she would deed it back to me." She said, "I will sign anything you want, and whenever you want it." The allusion to the woman in New York contained in the testimony related to a Miss Hunter, with whom at one time the wife thought her husband had formed an illicit connection. The deed for the property conveyed to the wife was drawn by Mr. Cannon, a lawyer of the state of New York. Mr. Duvale says that about the time the deed was made— perhaps a week later or a week earlier—he spoke to his wife about the execution of reciprocal wills in each other's favor. When recalled to the stand on a subsequent day, he, after talking with Mr. Cannon, said that the conversation occurred before the execution of the deed to his wife. It is conceded that two wills were drawn and executed, one from her to him and the other from him to her, of all the property of each respectively. These wills were executed on August 26, 1890. Then followed the purchase of the two adjoining lots, the title to which was put in the name of the wife. In March, 1893, Mrs. Duvale left her husband's home at the Highlands. Mr. Duvale says that some time during that month he saw her on the cars in Jersey City, a few days after she had left him, and she then told him that she had made a new will, and had given all her property to her relatives in France. She had in fact made such a will on March 15, 1893. In reply to her information he says he told her that she had a right to make all the wills she wished to, but, of course, she would give him back his property, and that she replied, "Yes." Then she said: "But let me have it. I know that I have done wrong, and I will bring back that will, and you can destroy it." Mr. Duvale refused to accede to her proposition. In June she returned to her home in the Highlands. Shortly before this, she seems to have executed another will, drawn by Senator Applegate, in favor of her husband. This will was subsequently destroyed by Mrs. Duvale in the summer or fall of 1893. This is a brief statement of the husband's account of the transaction. Mrs. Duvale admits that they agreed to make reciprocal wills, but she denies that she ever heard anything about the making of these wills until shortly before their execution. She also denies having had any conversation with her husband previous to the time of the execution of the deed to her, in which conversation she promised to sign any paper in respect to the property in his favor.

The case, so far as it rests upon the testimony of the parties themselves, therefore stands thus: The husband swears that before the deed was made to his wife she promised to sign any paper to secure his title to it, that the wills were afterwards executed to effectuate that purpose, and that she destroyed the will in his favor, and executed another to a new beneficiary. All the material parts of his testimony the wife denies. Of the testimony of persons other than the parties, the most important is that of Mr. Cannon, who drew the deed, and also drew the wills. Mr. Cannon says that he received instructions from Mr. Duvale to draw reciprocal wills. He thinks these instructions were contemporaneous with the closing of the title and the passing of the deed to the wife. His account is as follows: "Mr. Duvale asked me what would be the effect of putting the title in Mrs. Duvale's name in case Mrs. Duvale died intestate. I told him that according to our laws (and I think I looked up the laws of New Jersey), in both instances, they never having had any children, it would go to the heirs at law of Mrs. Duvale. I said to Mr. Duvale that the only way I could see, if he placed entire confidence in his wife, between him and his wife, to make reciprocal, or, as we sometimes call It, counter wills." As already observed, Mr. Cannon had already said that he received instructions to draw such wills, he thinks, on the 12th of June, when the deed was made. Drafts of these wills were sent by mail to Mr. Duvale on the 28th of June, Mr. Cannon accounts for the 16 days intervening between the date of the deed and the reception of the wills by Mr. Duvale by saying that he first drew "what We termed drafts of the wills," and submitted them to Mr. Duvale, by sending them, "by one of our clerks or an office boy to Mr. Duvale's office." He thinks that the drafts came back to the office, and that final drafts were sent by mail to Mr. Duvale on June 26th, as the charge for drawing them was made on that day. He says that he did not send the drafts immediately after receiving instructions to draw them, for that they were always behind in their office in such matters.

The remaining testimony consists of subsequent admissions of the respective parties concerning their understanding of the condition of the title to the property. First in this line is the testimony of Edmund Moutenot, who is the only son of Mrs. Duvale by her first husband. It is conceded that in the agreement made between the husband and wife respecting the wills, at whatever period that agreement was made, it was understood that her will was to contain a legacy in favor of her son of $100. Mr. Duvale says that after the execution of the wills he told Mrs. Duvale that she should inform her son that she had made such a will, so that he would not contest it after her decease. Moutenot swears that some time between September 15 and October 15, 1890, his mother came to his house near Belvidere, N. J., and she then and there said she had come to tell him what arrangement had been made between Mr. Duvale and herself in regard to this property. She said that the title was put in her name, and that it was understood that she was to return those deeds if Mr. Duvale should ask for them, for any...