Miller v. Lullman

• Decision Date: 07 February 1882
• Citation: 11 Mo.App. 419
• Parties: W. G. MILLER ET AL., Respondents, v. J. C. LULLMAN, ADMINISTRATOR, ET AL., Appellants.
• Court: Missouri Court of Appeals

11 Mo.App. 419

W. G. MILLER ET AL., Respondents,

v.J. C. LULLMAN, ADMINISTRATOR, ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 7, 1882.

A husband having made an ante-nuptial promise to convey his property to his wife, did, three days after his marriage, convey certain real estate to a trustee for her separate use. Desiring to retain the power to revoke the gift, he at the same time caused to be executed a quit-claim deed from her and her trustee, to the husband's confidential agent, and one from him to the husband, the deed to the trustee alone being recorded. The husband never manifested any intention of revoking the settlement, and at his death, the wife retained the quit-claim deeds found among his papers. The husband's heirs sought to divest title out of the wife's trustee and to vest it in them. Held, that the three instruments must be construed together, and that so taken, they must be regarded as a settlement on the wife with power of revocation reserved. Held, further, that in order to show that the conveyance from the wife to the husband was a gift from her to him, the burden is upon the husband to show, by positive proof, the perfect fairness of the transaction.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

TAYLOR & POLLARD, BIJUR & DAVIE, with whom is HENRY HITCHCOCK, for the appellants: The three deeds read together, and read in the proper light of the circumstances under which they were written, and of the subsequent conduct of the parties in regard to them, are to be construed as creating a “family settlement,” in trust for the wife, with an unexercised power of revoking, retained in the hands of the husband.--2 Pars. on Con. 503; Gammon v. Freeman, 31 Me. 243; Clark v. Monroe, 14 Mass. 351; Gilliam v. Moore, 4 Leigh, 30; McDowell v. Hall, 2 Bibb, 611; Ford v. Belmont, 7 Robt. 97; Shoenberger v. Lyon, 7 Watts & S. 194; Brown v. Slater, 16 Conn. 192; Brown v. Batchelor, 1 Hurl. & N. 265; Jones v. Clifton, 11 Otto, 225. Under such circumstances as are disclosed here, such a deed, from a wife, for the benefit of her husband, is presumptively made under his undue influence; the burden is on the husband, or his heirs, to rebut this presumption by positive proof; and, failing to do so, the deed will not be enforced in his or their favor.-- Meek v. Perry, 36 Miss. 252; Toker v. Toker, 5 De G. J. & S. ___; Cooke v. Lamotte, 15 Beav. 234; Hoghton v. Hoghton, 15 Beav. 278; Todd v. Grove, 33 Md. 188; Rodes v. Bate, L. R. 1 Ch. App. 256; Greenfield's Estate, 14 Pa. St. 506; Darlington's Appeal, 86 Pa. St. 513; Weeks v. Haas, 3 Watts & S. 520; Garvin v. Williams, 44 Mo. 465; Rankin v. Patton, 65 Mo. 378.

OVERALL & JUDSON, for the respondents: The deeds having been duly executed and delivered, the recording or non-recording was wholly immaterial inter partes, and the title vested according to the legal effect of the deeds.-- Poe v. Domic, 48 Mo. 442; Martin v. Jones, 59 Mo. 181; Washburne v. Scott, 17 Mass. 275; Washb. on Real Prop. 321-328; Harrington v. Foltner, 58 Mo. 473. The delivery to Miller is established by his possession and retention of the deeds, and is not denied by the answer.--3 Washb. on Real Prop. 582; Goodwin v. Bard, 6 Baxter, 107; Fairbanks v. Metcalf, 8 Mass. 238. The delivery was absolute. A deed cannot be delivered to a grantee as an escrow.-- Ward v. Levis, 4 Pick. 520.

BAKEWELL, J., delivered the opinion of the court.

This is an action by the heirs at law of George C. Miller, deceased, against his widow, his administrator, and the trustee of his widow, the general object of which seems to be to obtain a decree divesting title in certain real estate in St. Louis, out of the trustee of the widow, and vesting the title in plaintiffs, subject to the dower of the widow. The decree was made in accordance with the prayer of the petition.

It appears from the pleadings and evidence that George C. Miller was a man of eccentric and dissipated habits, engaged in the lottery business in St. Louis. He was solvent at the time of the occurrences set forth below, and at the time of his death; and owned, besides the real estate in question, a large amount of personal property. He was of a suspicious disposition. He was engaged in some litigation, and liable for a large amount of costs growing out of that litigation, the payment of which he desired to avoid, claiming that a part of it ought, in justice, to be paid by a person interested with him in this litigation. He was also annoyed by fear of suits growing out of his lottery business. His habit was to some extent to so dispose of property, as to protect it, if possible, from seizure. He had resided in St. Louis, but in 1878 was living at a hotel in Louisville. He there became engaged to the defendant Kate, and before his marriage, stated to her sister, with whom she was living, who had brought her up, and who stood to her as a mother, that he was in very independent circumstances, that his habits were bad, and that, in order to protect his intended wife, he would convey his property to her. The engagement lasted for some time, was broken off several times, and he made this promise repeatedly. The last time he made it was a few days before his marriage, when he said he was going to give his property to the defendant Kate, as her bridal present. Six months before that, he had showed some of the real estate in question, on Ware Avenue, to his wife's sister, as part of the property he would give to his wife. Miller was married to the defendant Kate, on February 22, 1879, at Louisville. They immediately came to St. Louis. On their arrival, Miller went to see his confidential legal adviser. Some of his property was then advertised for sale under a fee-bill for $600. He said to his legal adviser: “I am tired of these damned land cases. I want to give my property to Kitty. Now, I won't trust her. How can I hold a control over her?” The lawyer in question testifies as to this, and says that he thereupon advised Miller: “The proper way to do is to make a deed to me or to any other person as trustee. Then let me and you and her make a deed to Bob Kerr, and transfer it over to you.” This witness says: “He took my advice and did it, and the papers were signed at the Lindell Hotel, Mr. McCabe taking the acknowledgments. Mr. Kerr never took the deed. He signed it and left it on the table. I took all the deeds down to the recorder's office and recorded the one to myself as trustee, and gave the others to George C. Miller. I will state further, that Mr. Miller was very jealous of his wife. Mr. Miller said he intended his wife should have the property if she behaved herself. * * * When Kerr signed the deeds I had them all prepared on the table. They were all signed at the same time. Kerr just signed the deed and left the room. The deed from Miller and wife to me as trustee, was the first deed; the second deed was from Miller and wife to Kerr. That was signed next. I don't believe there was over five or ten minutes between the signing of the deeds. They were all signed at the same sitting.”

Kerr was Miller's private secretary. He swears that before his marriage, Miller stated to him that it was his desire to transfer the Ware Avenue property and other property belonging to him, to Kitty Creal, afterwards his wife, the defendant Kate Miller. After his marriage, Miller told this witness to meet him at a lawyer's office to sign a deed; that he was going to give that property to his wife, that his wife would then give Kerr a quit-claim deed, and Kerr was to give a quit-claim deed to Miller. The witness never had the deed made by Miller and wife and the trustee to him in his possession. The plaintiff objected to any statement being made by the witness as to whether or not there was...