John M. Allen's Admr. v. Lucy J. Allen's Admrs., And Lee K. Osgood
| Decision Date | 29 October 1906 |
| Parties | JOHN M. ALLEN'S ADMR. v. LUCY J. ALLEN'S ADMRS., AND LEE K. OSGOOD |
| Court | Vermont Supreme Court |
[Copyrighted Material Omitted]
January Term, 1906.
APPEAL IN CHANCERY, Rutland County, March Term, 1905, Powers Chancellor.
Decree affirmed so far as the same relates to real and personal property now in the possession of the defendants or either of them, or to which they or either of them are entitled, embraced or described in said contract, deeds and power of attorney, and claimed by said defendants by, through or on account of the same; and so far as the same relates to an accounting by the said defendants and the surrender to the orators of all sums of money that may have been collected by said defendants or either of them, or that have come into their hands or possession, belonging to the estate of said John M. and so far as relates to the surrender to the orators of all kinds of proper that came into the possession of the said Osgood Barrett and Dana under and by virtue of said deeds, contract and power of attorney and which they have not disposed of to bona fide purchasers without notice; and so far as the same relates to the contract between said Osgood and said Moore remaining unexecuted at the time the bill in this cause was brought; and so far as the same relates to the injunction; but the same is reversed so far as it relates to real and personal property conveyed by the said Osgood, Dana, Barrett and Moore to bona fide purchasers without notice; and the cause is remanded with mandate to the court of chancery to refer the same to a master to take an account of the property, whether real, personal or mixed, which has come to the hands and possession of the defendants or either of them from the estate of the said John M. Allen, by virtue of a claim of right resting upon said contract, deeds and power of attorney, and also to take an account of all money which said defendants or either of them have received from the sale of any and all such property or which they or either of them may have received on account thereof, and to report to said court of chancery the location and value of said property and the amount of money, if any, which they or either of them have received from the sale of any of said property, whether sold by themselves or by their agent, and, if it shall be found that sales have been made and money received the for, to report to whom and for how much the sale was made and whether to a bona fide purchaser with notice or otherwise, and when said report is made and returned to said court of chancery, such decree is to be entered thereon, in addition to the decree already rendered and affirmed herein, as the facts reported warrant.
Butler & Moloney, and George E. Lawrence for the orators.
Marvelle C. Webber and E. L. Waterman for the defendants.
Present: ROWELL, C. J., TYLER, MUNSON, WATSON, HASELTON, and MILES, JJ.
The first ground of objection to the action of the court below, is based upon the refusal of that court to recommit the special master's report. This objection cannot avail the defendant, because the recommittal of the report was a matter within the discretion of the chancellor, and no abuse of that discretion appearing, this Court will not review the action of that court. Lovejoy v. Churchill, 29 Vt. 151; Fuller v. Wright, 10 Vt. 512, 514; Morse v. Beers, 51 Vt. 359; Robinson v. Dodge, 66 Vt. 595; Jeffers v. Pease, 74 Vt. 215, and cases cited; Sowles v. Sartwell, 76 Vt. 70.
This holding dispenses with the necessity of considering the affidavits furnished with the case, for their only bearing was upon the question of recommittal. The defendants, however, argued to some extent, that they furnish ground for a new trial, because they show that the findings of the master are without the support of evidence. In this, we think the position of the defendants is not well taken, and that the affidavits do show that there was some evidence supporting each finding of the master. Whether such evidence was sufficient to constitute a fair balance upon all the facts reported, we have not considered, as that is unnecessary, in any view of the case, for this Court will not revise or review the master's findings, unless fraud or corruption is shown, when there is evidence to sustain them. Security Co. v. Bennington M. Association, 70 Vt. 201, 215, and cases cited; Sargent v. Burton, 74 Vt. 24-27. If this were not so, the affidavits could not be used for this purpose; because this case is not before us upon a petition for a new tria, but it is an appeal from the action of the court below, and the grounds upon which the defendants seek a reversal are based upon the alleged errors of that court; and neither can they be used to set the report aside on the ground that it was unsupported by evidence; because those affidavits do not disclose all the evidence produced before the master and from which his report is made, so that this Court can say, if the affidavits themselves did not show it, whether there was or was not any such evidence before the master.
The defendants moved the court below for leave to file exceptions to the master's report and rulings excluding evidence, but they do not urge upon us the refusal of the court to grant that motion, as a ground of error, but do urge that we, as a matter of equity, ought to grant it and send down to the court of chancery a mandate to that effect. The case does not show that the master was requested in writing to report any testimony received or rejected by him, and the report does not show that any was received or rejected by him against the objection and exception of the defendants. Unless so requested the master is not obliged to state his decision in admitting or rejecting evidence, and may treat the objection as waived. Sec. 939, V. S.; Winship v. Waterman, 56 Vt. 181; Scofield v. Stoddard, 58 Vt. 290. Being waived, if they were ever made in fact, they stand as if they had never been made before the master, and not having been taken before the master, they could not be filed with the report in the court of chancery, and hence could not be considered by this Court. Sec. 942, V. S.; Winship v. Waterman, supra; Scofield v. Stoddard, supra; Bruce v. Life Ins. Co., 58 Vt. 253; Baxter, Admr. v. Blodgett et al., 63 Vt. 629.
The remaining question presented involves the orator's right to any decree as well as to the decree made, and as none of the testimony is before us, that right must be determined from the facts stated in the report of the special master.
The orators rest their right to the decree rendered upon the claim, that their intestate, John M. Allen, on the 13th day of January, 1890, and from thence to the time of his death, had not sufficient mental capacity to make the contracts and deeds which the defendants claim he then and subsequently made, and which the orators seek to avoid in this suit; and that undue influence was used upon him by the defendants' testatrix and the defendant, Lee K. Osgood, to secure the execution of those deeds and contracts.
The master has found in express terms that John M. Allen, the orators' intestate, was mentally incapable of properly understanding and comprehending the scope and effect of said deeds and contracts or of entering into any valid contracts, deed or conveyance of the magnitude and importance of said deed and said contract and power of attorney, and that the signature of the orator's intestate to the deed, contract and power of attorney was procured by the undue influence of the defendants' testatrix and the defendant, Lee K. Osgood. These were findings upon the questions submitted to the master, and are findings upon the questions on which the orators' right to the decree rendered, rests; and, if there is no legal or equitable objection to the master's findings as stated, the orators are entitled to a decree.
The defendants, however, claim that these findings of the special master are simply legal conclusions and are not findings of fact, and that he has not found any facts which justify him in reporting such conclusions, and that therefore, the finding being upon a mixed question of law and fact, unsupported by other facts, the decree of the court of chancery ought to be reversed and the bill dismissed.
It is true that, at least a part of that finding is upon a mixed question of law and fact. That part of the finding which states that the contract, deed, and power of attorney were procured by the undue influence and fraud of Lucy J. and Lee K., is undoubtedly a finding based upon law and fact. The finding, that orators' intestate "was mentally incapable of properly understanding and comprehending the scope and effect of said deed, contract and power of attorney, or of entering into any valid contract, deed or conveyance of the magnitude and importance of said deed and said contract and power of attorney," is only a finding that the orators' intestate was mentally incapable of understanding and comprehending what he did when he executed the papers in question and is merely the finding...
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