Finucan v. Kendig

• Decision Date: 06 March 1884
• Parties: THOMAS J. FINUCAN et al.v.JOHN A. J. KENDIG et al.
• Court: Illinois Supreme Court

109 Ill. 198

1884 WL 9783 (Ill.)

THOMAS J. FINUCAN et al.

v.JOHN A. J. KENDIG et al.

Supreme Court of Illinois.

Filed at Ottawa Mar. 6, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding.

The original bill in this case was filed by Michael Finucan, November 29, 1881, in the Superior Court of Cook county, against John A. Kendig, Murray F. Tuley, Joseph N. Barker, and the children of the complainant, praying that a certain voluntary deed of trust made by the complainant may be canceled, or that it may be reformed. Pending the suit the complainant died testate, and his executors, Thomas J. Finucan and James L. Cleary, filed a supplemental bill.

The original bill sets out that on the 1st day of June, 1860, Michael Finucan was the owner in fee of lots 1 and 2, in Hayne's subdivision of lots 1 and 2 of the canal trustees' subdivision of certain blocks in Chicago, and on that day made a deed of said lots to one Joseph Sexton; that afterward, Michael O. Shaughnessy, having a judgment against complainant, filed a creditor's bill against him, in which there was a decree subjecting the lots to sale for the satisfaction of the judgment, and on August 15, 1862, a master's sale of the lots under the decree was made to one Richard McCleavey, and a certificate of purchase delivered to him; that about the 1st of December, 1862, while acting under the advice of the defendants Tuley & Barker, who were his attorneys, complainant delivered to said Tuley $220, with which to purchase from McCleavey the said certificate of purchase, and complainant being ignorant, and somewhat dissipated and reckless in his personal habits, was advised by his said attorney, Tuley, to have the title to said lots so arranged as to protect complainant and his wife during her life, to which he assented; that his said attorney then purchased the certificate of purchase with said money, and caused it to be assigned by McCleavey to Kendig, who occupied a part of his office, and on December 1, 1863, the master executed a deed of the lots to Kendig; that said Tuley then directed Kendig to prepare an ordinary deed of trust, containing a power of revocation, conveying the lots to Tuley & Barker, in trust for the use and occupancy of Michael Finucan, and his wife, Bridget Finucan, and upon the death of complainant, or of his wife, to convey the lots to the survivor, and containing certain other trusts, and gave Kendig a form to use as a partial guide from which to draft the deed, and explained the changes to be made; that Kendig gave the form to one Day, then a clerk in his office, to prepare the deed as directed by Tuley, and that on December 5, 1863, Day prepared, and Kendig and his wife executed, the deed of trust in question, which purports to convey the lots, by Kendig and his wife, to Tuley & Barker, and the survivor of them, “in trust, nevertheless, for the following uses and purposes, viz:

1. For the occupation and uses of Michael Finucan, and Bridget Finucan, his wife, and for the occupation and use of the survivor of them so long as he or she shall live.

2. In the event of the said Bridget surviving the said Michael, and failing, at any time after said Michael's death, to occupy said real estate by actual residence thereon, then from that time until the conveyance to the children of said Bridget and said Michael, or the children of such children, as hereinafter provided, to take possession of and have said premises, and to receive the rents and profits thereof, and out of the same to keep the said premises in repair and properly insured, and to pay all taxes, assessments and charges that may be imposed thereon, and to pay the residue of such rents and profits to said Bridget Finucan, upon her sole and separate receipt, to the intent and purpose that she may enjoy the same free from any control, interference or liability of any husband (that she may have) during the time of her natural life. 3. By and with the joint consent of the said Michael and Bridget, to raise money upon said premises, by way of trust deed, mortgage, or other deed of conveyance; to sell the same, and with the said Michael and Bridget's joint consent to make and execute bonds and notes for such money, deeds of trust, mortgages, absolute deeds of conveyance, or any deeds of conveyance of said premises, to any person or persons whomsoever, that may be necessary to raise money upon said premises, by way of mortgage or otherwise, or to sell, transfer and convey said premises; and the only evidence of the said joint consent of said Michael and the said Bridget required by this third section of this deed, shall be the said Michael and Bridget joining in the execution of any of the instruments of writing in this section and in this deed mentioned.

4. In event said premises shall not be conveyed by absolute deed in accordance with foregoing provisions, then, upon the death of the survivor of said Michael and Bridget, to convey the said premises in fee simple to the children of the bodies of the said Michael and Bridget Finucan living at the time of the death of the longest liver of them, (said Michael and Bridget,) or to the children of such children lawfully begotten, per stirpes.”

The bill further states that Kendig and Day neglected to follow the instructions given by said Tuley, and negligently failed to insert in the deed the usual power of revocation, and by mistake inserted therein the first, second and fourth paragraphs contained in the deed defining the trusts; that complainant's wife died October 7, 1879, and that it was not until 1880 that complainant learned, for the first time, of the erroneous paragraphs and provisions in the deed; that he has continuously occupied the premises as a homestead since 1859, has made valuable improvements on the lots, which he would not have made had he known of the provisions of the deed; that the deed is unreasonable and improvident, and was made without his knowledge or consent, and that he was never advised by his said attorney, or any one, to consent that such a deed be made. On hearing, upon proofs taken, the bill was dismissed, and the complainants appealed to this court.

Mr. FRANK A. JOHNSON, and Messrs. WINDES & SULLIVAN, for the appellants:

That a voluntary settlement contains no power of testamentary disposition or power of revocation, but conveys nearly all of the settler's property to trustees, out of his control, which is improvident, and when he is not advised of the contents of the deed, or that it is irrevocable, and it is not the free, voluntary and well understood act of his mind, may be declared void, and a reconveyance ordered, counsel cite many authorities, among which are: Hill on Trustees, (4th Am. ed.) 84, note 1; Moore v. Pance, 9 Hare, 299; Noldred v. Gilham, 1 P. Wms. 576; Griffiths v. Robbins, 3 Mad. Ch. 105; Hunter v. Atkins, 3 M. & K. 113; Huguein v. Basely, 14 Ves. 273; Cooke v. Lamotte, 15 Beav. 234; Houghton v. Houghton, Id. 298; Meadows v. Meadows, 16 Id. 401; Nancy v. Williams, 22 Id. 452; Forshaw v. Welsby, 30 Id. 243; Fullager v. Clark, 18 Ves. 481; Blackie v. Clark, 15 Beav. 452; Nobday v. Peters, 28 Id. 349; Cobbitt v. Brock, 20 Id. 524; Guarnsey v. Mundy, 24 N. J. Eq. 243.

When the deliberate intent to make an irrevocable gift does not appear, and when no motive for such a gift is shown, the absence of a power of revocation is prima facie evidence of a mistake. The rule is the same when the motive has failed, as was the case in Hastings v. Orde, 11 Sim. 205.

It is the duty of the solicitor who prepares the settlement, to see that the irrevocable nature of the instrument is fully understood by the settler. May on Voluntary Alienation, 452.

The children have no special claims. Rutherford v. Morris, 77 Ill. 416; Uhlich v. Muhlke, 61 Id. 499; Heuser v. Harris, 42 Id. 425; Carwater v. Kimler, 43 Id. 272. The trust deed from Kendig and wife to Tuley & Barker was made by mistake, and should, for that reason, be reformed. The parties have not met upon a material point, and if the parties can be placed in statu quo, equity will correct the mistake. 1 Story's Eq. Jur. secs. 115, 162; Worden v. Williams, 24 Ill. 75; Lindsay v. Davenport, 18 Id. 381; Carter v. Barnes, 26 Id. 456; Hunter v. Bilyeu, 30 Id. 246; Mills v. Lockwood, 42 Id. 112.

He only can create a trust who has the legal estate in the subject of that trust. 2 Washburn on Real Prop. 470, *195.

No trust in this case, under the Statute of Frauds, could be created by Kendig, who only held in trust for Finucan. A writing, to declare a further trust, must be signed, not only by the trustees, but by the beneficial owner. Browne on Statute of Frauds, 99; Tiernay v. Wood, 19 Beav. 330; Adlington v. Cann, 3 Atk. 151; Hill on Trustees, *282, 317, 509; 2 Story's Eq. Jur. sec. 977.

The burden of proof is on the party claiming a benefit under a voluntary deed, to show that it was the free, voluntary and well understood act of the grantor. Kerr on Fraud and Mistake, 151; Griffiths v. Robbins, 3 Mad. 105; Cooke v. Lamotte, 15 Beav. 234; Houghton v. Houghton, Id. 278; Meadows v. Meadows, 16 Id. 401; Phillipson v. Kerry, 32 Id. 638; Sharp v. Leach, 31 Id. 494; Guarnsey v. Mundy, 24 N. J. Eq. 243; Lyon v. Home,L. R. 6 Eq. 655; Coutts v. Ackworth,L. R. 9 Eq. 44.

Messrs. KNICKERBOCKER & HOLDOM, for the appellees, after reviewing the facts in detail, contended that there was no mistake in the deed of trust, and that the settlement made was a provident one, under all the circumstances, and a prudent and well advised act.

After reviewing appellants' authorities, counsel say, the rigor of the English law on this subject has not been sanctioned by the courts of this country,-- citing Jenkins et al. v. Pye, 12 Pet. 241; Eckert v. Gridley et al. 104 Ill. 306; Kerr on Fraud and Mistake, 434; Villiers v. Beaumont, 1 Vern. 100; Bayle v. Newton, Id. 464; Petre v. Espinasse, 2 M. & K. 496.

Mr. CHIEF JUSTICE SHELDON del...