McElroy v. Masterson

• Decision Date: 27 June 1907
• Docket Number: 2,532.
• Citation: 156 F. 36
• Parties: McELROY v. MASTERSON.
• Court: U.S. Court of Appeals — Eighth Circuit

156 F. 36

McELROY v. MASTERSON.

No. 2,532.

United States Court of Appeals, Eighth Circuit.

June 27, 1907

William D. Mitchell and Pierce Butler (Jared How, on the brief), for appellant.

A. A Stone and Thomas Hessian, for appellee.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

This is a suit in equity to set aside and annul a deed executed by the appellee to the appellant February 3, 1903. The land conveyed consists of about 194 acres valued at between $9,000 and $10,000. The grounds of attack on the deed are that it was given without consideration and obtained through undue influence and misrepresentation. At the time of the conveyance the appellee was about 77 years of age, and the appellant was about 58. The appellee is the uncle and godfather of the appellant. They were born in Ireland, immigrating to America in 1850. In the party was the sister of the appellee, and mother of appellant, and her husband and perhaps some children. The appellant's parents established a home in the city of New York, and the appellee was a guest in their home for about a year. After that he drifted for a number of years, working as a common laborer, attempting once to establish a homestead in Illinois, until finally, in 1865, he pre-empted the land involved in this suit, in Nicollet county, Minn. Neither he nor this nephew ever married. The latter continued to live in the city of New York, engaged in the trade of a hatter, and succeeded in earning an independent, respectable competence.

While there were other near relatives-- a brother and some nieces-- the appellee had no communication with them. The father and mother of the appellant died several years prior to 1903. While the said nieces lived in the city of New York, all the information the appellee seems to have had about them came from occasional correspondence with this nephew, the appellant. So much of the correspondence between them as was preserved, ranging from perhaps 1885 to January, 1903, shows that an unusual relation of affectionate attachment existed between this uncle and nephew. In his isolation, in the far away Northwest, the uncle's heart went out with an unceasing tenderness towards this nephew. He seemed to have regarded him as indeed his godchild. He was an illiterate man, and his letters bear evidence that to him writing was indeed a severe labor, and he seems to have assumed the burden of writing only when prompted thereto by the yearning desire to keep in touch with this nephew. Though expressed in crude form, his letters were invariably characterized by a sentimental feeling of unaffected regard for the appellant. He nearly always addressed him as 'Dear Patrick,' and closed his letters with the words 'I remain your loving uncle to death. ' The solicitation for this correspondence, as a general rule, came from the uncle. He often chided the appellant when he neglected writing to him for a considerable length of time, and expressed himself as being delighted whenever he did receive a letter from him. This fact is of especial moment as indicating the entire absence of any selfish or sinister motive on the part of the appellant in maintaining a correspondence with his uncle. While his letters breathed the most kindly and considerate spirit and a tender solicitude for his uncle's welfare there does not appear in one line of any of them a word or thought that should suggest to a reasonable, candid person a lurking purpose in the mind of the appellant to obtain aught from his uncle save a continuance of their affectionate relation. Any contrary suggestion is a perversion of the language of a simple-hearted, sincere man. Several years prior to 1903, the appellant visited his uncle, evidently on invitation, and certainly to the deep pleasure of the latter. In his testimony the appellee himself does not attach to this visit any other motive than that of sincerity and kindness. There was not an incident connected with this visit to justify any imputation of an ulterior design to subserve any selfish purpose on the part of the appellant.

The evidence shows that the appellee was not a successful farmer. Early after the acquisition of this land he placed upon it a mortgage for $1,400. This incumbrance accumulated until, at the time of the execution of the deed in question, the debt amounted to about $2,900. The increase in the value of the farm was despite the appellee's improvidence, and his retention of it intact was attributable to the indulgence of the mortgagee, who was content to let the mortgage run so long as the interest was paid, as the increasing value of the security resulting from the development of the country was deemed ample protection. As appears from the correspondence between these parties, the maintenance of the farm was becoming somewhat of a burden to the appellee, and it is to be gathered from the correspondence that the appellant had suggested to him the advisability of selling it; but he seemed to be adverse to parting with it, and it is quite inferable from the evidence that the underlying purpose of the appellee all the while was to retain this land to the end, and that he designed after his death it should go to the appellant. In 1902, by reason of physical infirmity and business incapacity, the burden of this farm and the loneliness of his situation became such as to induce the appellee to remove from it to a nearby town, and board with some friends. He was sick, and evidently became apprehensive that he was approaching the end of life. Naturally enough in such situation his mind turned to the appellant; and on December 24, 1902, he wrote to him, saying:

'It is so long since i heard from you i thought i would try to write you a few lines to yet you know how i feel i am very feeble this winter i have left my house i was not able to care for myself i have went to stay with a neighbor that has my place rented so there is no person in my house Patrick i wish to here from you if you are alive but i would like much better to see you you told me when you were (here) if anything happened that you would come here to me and i think it very near the time i think i will not be long here i think you had better come on if you are alive so we can talk to each other do not delay as i cannot tell how i am going to last i have no more to say as i do not feel able to write any more i remain your loving uncle to Death.'

It is inferable that the appellant answered this letter expressing the wish that his uncle should go to New York and live with him, as he could better take care of him. On the 9th of January, 1903, the appellee wrote the appellant as follows:

'i wish to inform you that i received your very kind and welcom letter it gave me great comfort to hear that you are still living i thought you were dead it was so long since i heard from you you said in your letter you wished me to go there my business in such shape that it is pretty hard for me to go away and leave everything behind me and has no body to look after it it is a very cold winter and i am not able to go out and see anyone about the matter if i live to spring i hope to be able to find someone that will rent it for a number of years as i would wish to go there and be buried with my people i am staying in lesueur this winter i locked the house i did not want to be found dead there if i find that i get any worse i will let you know so that you will look after my place so that there will be nobody to make any trouble i had a letter from father cauley he said he lived with roberts daughter Bridget and that she was married to a relation of his he said she would meet me with open arms if i would go there i did not answer his letter as i did not feel good i wish you would let me know if my brothers and sisters are living or dead if i find i cannot stand it this winter i will write to you or have somebody else write to you for me so that you can come on me fix matters i do not intend to give what little there will be to anyone else i think i have no more to say at present i remain your loving uncle to Death.'

On receipt of this letter it is but just to say that, prompted by a humane and commendable spirit, the appellant left his business, and on or about the 19th day of January, 1903 arrived at...