Small v. Small

• Decision Date: 09 November 1895
• Docket Number: 7642
• Parties: ELI D. SMALL et al. v. REBECCA SMALL
• Court: Kansas Supreme Court

42 P. 323

56 Kan. 1

ELI D. SMALL et al. v. REBECCA SMALL

No. 7642

Supreme Court of Kansas

November 9, 1895

Error from Jackson District Court.

ON January 27, 1859, at Findlay, Ohio, Daniel Small married Rebecca Cone, the present defendant in error, as Rebecca Small. He was the father of five children by a former marriage, namely, Eli D., Daniel J., John D., William B., and Susan, now Susan McKenney; the oldest, Eli D., being about 17, and the youngest, the daughter, about 3 1/2 years of age and his home was at Wilmington, Will county, Illinois. He had accumulated about $ 30,000, but Rebecca Cone's belongings were of trifling value. She went from Findlay to Wilmington and took charge of the children, who soon became very much attached to her, and she was devoted to their welfare, and the relations of the entire family were always very harmonious up to the death of Daniel Small, which occurred April 14, 1888. The business of Daniel Small was the loaning of money on his own account. As early as 1869, Daniel Small conceived the idea of giving or leaving the bulk of his fortune to his said five children, in equal shares (there being no issue of his second marriage), after providing a sum sufficient for the maintenance of his wife during her widowhood, but nothing in that direction was done until March 19, 1878, when he made an assignment of all the notes, bonds mortgages and securities held by him on or against persons or property in Illinois, and amounting to about $ 100,000, to his brother, Darius Small, of Herkimer county, New York, in trust for said five children, the trustee being authorized to collect the notes and securities and reinvest the proceeds in other interest-bearing securities or real estate in or outside of the state, and to divide the same, with the accumulations at his death, in equal shares, among said children. By the terms of this trust assignment, Darius Small was authorized to appoint some discreet person, a resident of Will county, as his attorney in fact, to assist in carrying out the trust, and on the same day Darius Small accepted the trust, and also appointed Eli D. Small as such attorney in fact. Daniel Small had all these notes and securities in a safe. He took them out and handed them to Darius Small, who in turn delivered them to Eli D. Small, and he put them back in the safe in the same condition as before. Darius Small was on a visit to his brother at the time, and in a few days afterward he returned to New York, and never had anything more to do with the trust, except that on January 22, 1879 he executed a further power of attorney to Eli D. Small authorizing him to sell and convey any real estate situated in Kansas or elsewhere, the title to which might be vested in him as such trustee. Daniel Small continued managing the investments as before, but Eli D. Small assisted him. Most of the notes secured by mortgages on real estate were taken in the name of Darius Small, trustee, and on payment of the same it was the custom for Eli D. Small to satisfy the mortgages as attorney in fact; but the loans made on personal security were principally in the name of Daniel Small.

In 1879, and subsequently, part of what was called the trust fund was invested in two ranches, (one of them consisting of between 3,000 and 4,000 acres in Jackson and Shawnee counties, Kansas, and another one of more than 1,000 acres in Wabaunsee county, Kansas,) and in improving the same, and the title to these lands was taken in the name of Darius Small, trustee of Daniel Small, but Darius Small knew nothing of the transaction, and the lands were selected by Daniel Small, Eli D. Small, and the other sons. Part of the fund was also loaned through the American Bank, in North Topeka, established by the sons. They, or some of them, resided upon the ranches, and the funds for their improvement were furnished in a large measure through the bank. In July, 1886, Daniel Small executed a quitclaim deed to his four sons and his daughter for said Kansas lands, and shortly afterward Eli D. Small, as attorney in fact for Darius Small, executed deeds to Daniel Small and John D. Small for the large ranch in Jackson and Shawnee counties, and a deed to William B. Small for the smaller ranch in Wabaunsee county. About the same time, Susan McKenney quitclaimed her interest in the land to her brothers, and John D. Small and Daniel J. Small conveyed a one-third interest in the large ranch to Eli D. Small. The sons executed a promissory note to their sister for $ 8,740.25, an amount equal to one-fifth of the money invested in the lands and the improvements. Rebecca Small did not join in the conveyance with her husband, and she knew nothing about it at the time, but was informed of the transfer to the sons some time in the autumn of 1886. She never resided in Kansas, but had been on visits with her husband to the sons, and knew that they occupied the lands. For several years prior to September 12, 1882, Daniel Small had loaned or advanced money in unequal amounts to his sons, and on or about that day he paid them the residue of what would make $ 20,000 each, and he charged the same on his book as advancements. At the same time he had each of his sons to sign a paper, agreeing that in the final division their sister, Susan, should have an equal one-fifth share with them, including said advancements. Susan was then married to W. J. McKenney, of Brooklyn, N. Y., and her father afterward advanced to her the sum of $ 15,500, which was principally used in the purchase of a home in Brooklyn. Rebecca Small knew that money was furnished to Susan for the purchase of a home, but she did not know of the advancements to the sons, and was not consulted in reference thereto. About January, 1888, Daniel Small was taken sick, and his son Daniel J. Small went from Kansas to Wilmington, and remained there until October, 1888. Susan McKenney was also there for some weeks before and after her father's death. When Daniel Small realized that he could not live much longer, he told his son Daniel J. to go to Judge Parks, a lawyer at Joliet who was familiar with his affairs, and to tell him that if the trust arrangement of 1878 was not iron-clad, he wanted it made so, as he desired to leave $ 20,000 as a fund for the support of his widow, and that all the rest of his personal property should go in equal shares to his children, including the $ 20,000, the income only of which should be used for the support of his widow. Judge Parks suggested that he thought this could not be accomplished by will without the consent of Rebecca Small, but that all the notes and securities might be given away absolutely to the children in his lifetime, the remainder of the property to be disposed of by will; and he accordingly drew up two papers, one being in form a will, and the body of the other instrument reading as follows:

"Conscious that I am now suffering from a malady likely to prove fatal, and deeming it expedient to make final distribution and disposition of my personal estate (save what I propose to set apart for the benefit of my wife) in my lifetime, I have determined to carry out my long and well-considered purpose by an immediate transfer and delivery of the same, consisting for the most part of securities, to my son Daniel J. Small, who is now with me, in trust, to divide equally amongst my five children, Daniel J., Eli D., John D., William B., and Susan McKenney, share and share alike.

"In execution whereof, in consideration of love and affection, I do hereby assign, transfer, and set over to said Daniel J. Small, in trust as aforesaid, all my right, title and interest in and to the notes, mortgages and securities mentioned and described in the schedule hereto subjoined, to have and to hold to him and his personal representatives for the purpose above set forth."

The will, as drawn, recites that the testator had already, by advancements and recent gifts to his children, disposed of all his personal estate except about $ 20,000, and that being desirous of making a reasonable and adequate provision for the support of his wife, Rebecca Small, by whom he had no children, he did give and bequeath to his executor $ 20,000 as a fund to invest and reinvest in good interest-bearing securities, at his discretion, and from the interest received therefrom to pay her the annual sum of $ 1,200 in such periodical installments as he might see fit during her natural life, and upon her death to divide said fund amongst said five children, share and share alike; said provision for the widow to be in lieu and discharge of all her rights of dower, save in his real estate, which, together with his household furniture and such articles of personal property as he had not in the will or otherwise disposed of, he left to the disposition of the law, Daniel J. Small being named as sole executor and trustee. On these papers being exhibited to Daniel Small, he directed that the will be changed so that the payments to Rebecca Small should continue only while she remained his widow, and in the event of her death or marriage the fund to be divided among the five children. The will was changed according to his desire, and a schedule of the notes, securities, etc., amounting to a little more than $ 100,000, having been made, was attached to the instrument of gift, and the notes and securities were delivered to Daniel J. Small, he having received written authority from his brothers and his sister to receive in their name and behalf any gift which their father might desire to make. The will and the instrument of gift were executed on March 26, 1888, and Daniel J. Small retained possession of said notes and securities until his father's death and afterward, as also the $ 20,000 additional selected for the widow. The...