O'grady v. Deery
| Decision Date | 02 January 1946 |
| Docket Number | No. 3558.,3558. |
| Citation | 45 A.2d 295 |
| Parties | O'GRADY et al. v. DEERY et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Sullivan County; Blandin, Judge.
Bill in equity by Eleanor P. O'Grady and others against Frank L. Deery and others, for an order declaring deeds null and void. Defendants demurred to the bill and all questions of law raised by the demurrer were transferred without a ruling.
Demurrer sustained.
Bill in equity, brought by the heirs of Jennie A. Deery, seeking an order declaring null and void a deed of certain real estate from Jennie A. Deery to Arthur B. Crap, dated November 14, 1936, and a deed of the same property and of the same date from Arthur B. Crap to Jennie A. Deery and her husband, Edward A. Deery, as joint tenants, on the ground that Jennie A. Deery was mentally incompetent to execute the first-mentioned deed and that her husband unduly influenced her to do so for the purpose of defrauding her heirs.
Jennie A. Deery died in 1943, intestate. Edward A. Deery, who administered her estate, died about a year and ten months later. He had not filed in the Probate Court his final account as administrator, nor had he released his curtesy and homestead rights.
The defendants, who are the sole beneficiaries under the will of Edward A. Deery, demurred to the bill, and all questions of law raised by their demurrer were transferred by Blandin, J., without a ruling.
Albert D. Leahy and Howard H. Hamlin, both of Claremont, for plaintiffs.
McLane, Davis & Carleton and Stanley M. Brown, all of Manchester (Stanley M. Brown, of Manchester, orally) for defendants.
In order for a surviving husband to be entitled to any ‘portion’ of real estate of which his wife ‘died seized,’ he is required to release ‘his estate by the curtesy and his homestead right, if any,’ by a writing filed in the Probate Court. R.L. c. 359, § 13. Such a release was not necessary in the present case, however, since the wife did not die seized of the real estate in question. On the contrary, title to and seisin of the whole estate remained in the husband as surviving joint tenant immediately upon his wife's death.
‘There can be neither dower nor curtesy of an estate held in joint-tenancy’ (Washburn, Real Prop., 6th Ed., § 868), and the deed of a person mentally incompetent, but not under guardianship, ‘passes a seisin, and is only regarded as voidable, and not void’. Id., § 2107; see Young v. Stevens, 48 N.H. 133, 2 Am.Rep. 202, 97 Am.Dec. 592; Hall v. Butterfield, 59 N.H. 354, 356, 47 Am.Rep. 209; Oullette v. Ledoux, 92 N.H. 302, 304, 30 A.2d 13.
The suggestion that the deeds are void in the present instance because Edward A. Deery was aware of his wife's mental incompetence is untenable. 1 Williston, Contracts, Rev.Ed., § 250, pp. 740, 741. And where this is done, the same rule governs as that ‘applicable in other cases of fraud, where an equitable rescission is sought.’ Wells v. Wells, 197 Ind. 236, 248, 150 N.E. 361, 364.
It is stated in the bill that for some twenty-five years prior to her decease, Jennie A. Deery was not mentally competent to conduct business transactions and that her husband, knowing this fact, procured by fraud and undue influence the execution of the deeds in question in order that he might acquire, to the plaintiffs' disadvantage, the whole of his wife's real estate, upon her death, instead of the portion to which the statute entitled him; that Jennie A. Deery inherited her real estate from a sister, who died on September 30, 1936, and that the deeds which the plaintiffs seek to have annulled were executed on November 14, 1936; that Mrs. Deery died on January 23, 1943, and that Edward A. Deery died on November 10, 1944.
The bill, which was not filed until January 25, 1945, contains no averment as to...
To continue reading
Request your trial
-
Hilco Property Services, Inc. v. US
...grantor's guardian, or by the grantor's heirs. Sawtelle v. Tatone, 105 N.H. 398, 402, 201 A.2d 111, 115 (1964) (citing O'Grady v. Deery, 94 N.H. 5, 45 A.2d 295 (1946); Finch v. Goldstein, 245 N.Y. 300, 157 N.E. 146 In Boardman v. Woodman, 47 N.H. 120 (1866), the New Hampshire Supreme Court,......
-
Marcucci v. Hardy
...has prejudiced the defendant. See Jenot v. White Mountain Acceptance Corp., 124 N.H. 701, 474 A.2d 1382, 1387 (1984); O'Grady v. Deery, 94 N.H. 5, 45 A.2d 295, 297 (1946). The laches defense does not lie, however, if the defendant has "caused or contributed" to the delay. See New Hampshire ......
-
New Hampshire Donuts, Inc. v. Skipitaris, 86-338
...the injustice of allowing recovery where no explanation is given of an unreasonable delay which has worked an injustice. O'Grady v. Deery, 94 N.H. 5, 45 A.2d 295 (1946). Courts in other jurisdictions have concluded that the mere passage of time does not bar relief where a reasonable excuse ......
-
Therrien v. Therrien.
...the stenographer or scrivener writing the deed) who immediately reconveys to the husband and wife as joint tenants. See O'Grady v. Deery, N.H., 45 A.2d 295. This circuitous device, incomprehensible to laymen and in the twentieth century difficult of justification by the legal profession, ha......