Smith v. Tilton
| Decision Date | 24 August 1917 |
| Citation | 116 Me. 311,101 A. 722 |
| Parties | SMITH v. TILTON. |
| Court | Maine Supreme Court |
Exceptions from Supreme Judicial Court, Somerset County, at Law.
Action by Martha W. Smith, by conservator, against George A. Tilton. From the refusal to give his requested instruction, defendant excepts. Exceptions overruled.
Argued before KING, BIRD, HALEY, HANSON, and PHILBROOK, JJ.
Butler & Butler, of Skowhegan, for plaintiff. Walton & Walton, of Skowhegan, for defendant.
PHILBROOK, J. Action for money had and received.
The plaintiff is the widow of Prescott A. Smith, who died testate. By the terms of his will all his personal property was bequeathed to his widow, "the same to be hers absolutely," as the will states. She was also devisee of a life estate in all his real property, with the power to sell and dispose of the same, or any part thereof, if necessary for her comfortable support and maintenance. After her decease, if there had been no disposal as above provided for, the use, income, and occupation of the home farm were devised to the only child of the testator, Harry P. Smith, for the term of his natural life. At the decease of the latter the home farm was bequeathed to the person or persons who would be the nearest relatives of the testator, according to the laws of descent, other than any and all issue of the son, Harry, and his wife, Grace Butler Smith, which issue was expressly excluded as beneficiaries under the will.
When the conditions of the instrument became known, the son was naturally disappointed as to the provisions made for himself and his disinherited children, and made threats to contest the father's testament. It is obvious from the record that the plaintiff, with a maternal love of son and grandchildren which is quite natural, sympathized with Harry in his disappointment. The matter became the subject of domestic discussion, and members of the legal profession were consulted with a view to ascertaining whether the terms of the will, so far as they affected Harry and his children, could be avoided. The plaintiff stated in her testimony that she got her son and this identical defendant to consult attorneys and find out if it could be done, saying also that if it could be she so desired for the children's sake and to please Harry. The necessity of selling the real estate was clouded by the fact that the personal property bequeathed to the plaintiff amounted to about $2,400, which sum included about $1,800 deposited in a local bank, and also by the further fact that, exclusive of this bequest, the plaintiff, at the time of her husband's decease, had about $400 of her own money on deposit in a bank.
The defendant owned a farm which Harry desired to purchase. There was talk among the interested parties to the effect that if the widow could give a good title to the home farm then the defendant would convey his farm to Harry and receive in part payment thereof the deed of the home farm from the plaintiff. Hence the question of necessity of sale of the home farm by the plaintiff became the stumbling block which must be removed from the pathway leading to the power to give good title to that farm by the plaintiff. She says that she told the defendant and her son to ascertain, by consulting a certain attorney in whom she professed to have confidence, whether and how these transactions could be carried out successfully. Finally, she says, the defendant told her they had seen this attorney and had been advised by him that she would not be obliged to reach her last dollar before she could sell the home place, and that, if most of the money was put out of sight, it would enable the trade to be accomplished and carried through more quickly. She says that she relied upon this advice and the statement or the defendant that it had been given, and paid the defendant $600 "to get it out of sight, so that trade could be completed quicker; so I would be able to sell the home place."
She now says that she was deceived and defrauded by the defendant, that the alleged advice reported to her from her attorney was in fact never given, and seeks to recover the $600 which she paid him.
The defendant denies the deceit and fraud, and...
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