Wade v. Pulsifer.

of her by Charles P.; that Mary Frances fully acquiesced in the same until the time of her decease, and had no desire to recall the same; that Sarah M. fully acquiesced in the same so long as Charles lived; and that if he had outlived both, neither would ever have thought of recalling the gift from him.

The defendants insist that the orators have not brought the necessary parties before the court; and that no decree can be made, for that reason. It appeared that due notice was given that H. S. Royce, Esq., would present his administration account to the Probate Court Dec. 19, 1878. He did so on the day appointed. Mr. Sidney Pulsifer appeared, and the account was looked over and allowed. Mr. Royce then produced the bundle of notes, certificates of bank stock, government bonds, &c., and threw it on the Judge of Probate's table and said, "I am done with the Estate." Mr. Pulsifer said nothing and did not know but it was proper for the executor to pass the property over to the court. Mr. Royce then said to Mr. Pulsifer, "You want this figured up to have a distribution made, and you had better get Judge Thompson to do it." Judge Thompson remarked, "No doubt payments have been made that are not endorsed and parties hold receipts." Mr. Pulsifer said all he wanted was what was right, and if anything of the kind arose, to allow them. He and Mr. Royce soon left. It was understood Judge Thompson was to figure up the estate and make a decree of distribution. He told them he had business on hand so that he could not do so for some little time.

Not long after, Mr. Royce gave Mr. Thompson a check for the cash that was found in his hands, amounting to $2,166.15. Mr. Thompson sent it to Mr. Pulsifer. It ran along in this shape until this suit was brought, no decree of distribution having been made, with all the evidences of indebtedness and indices of property of the estate remaining in Judge Thompson's hands for the purpose of ascertaining the amount of the estate. By the injunction no decree could be made, and Mr. Pulsifer could not take possession of the property and the property has remained and still is in the hands of Judge Thompson, and he has managed it. He has, however, been careful to obtain the consent of Mr. Royce, and Mr. Pulsifer both, to everything he has done.

Under these facts the defendants insist that the legal custody of the estate is in the executor, H. S. Royce, Esq., and that no proper decree can be made in the case without making him a party defendant. This question is submitted to the Court of Chancery.

Several amendments were made to the report by the masters, among them the following:

Wade v. Pulsifer.

There was no evidence that the assignment from Mary Frances as a whole or separate instrument, was ever recorded in said probate records. The third account of Charles P. Allen, as her guardian, was recorded, and whatever is therein said, as set forth in our report, in regard to the assignment.

The facts and evidence on which the masters find that Mr. and Mrs. Wade, Mr. and Mrs. Beauclerk acquiesced in the gifts to Charles P., are, so far as we now remember, stated inthe report.

If it is for the court rather than the masters to find the fact of acquiescence from the facts stated, the masters most respectfully submit the finding of that fact to the court.

The orators excepted to the report on the ground that the findings were contrary to law and the evidence, as appears by the report; the defendants excepted, because Mrs. Wade and Mr. Beauclerk were allowed to testify.

ASSIGNMENT.

"ST. ALBANS, Vt., Feb. 27, 1869. "I, Mary F. Allen, of St. Albans, County of Franklin, and State of Vermont, for the consideration of love and affection, hereby assign and transfer unto Charles P. Allen, of Irasburgh, County of Orleans, State aforesaid, one-third part of the property assigned to me in the distribution of the estate of my mother, Frances E. Allen, by commissioners of distribution of said estate-N. T. Sheafe, Henry Cutler and Amory Davison, Jr., commissioners,-by their report dated Sept. 15, 1868, and recorded in the probate office in said Irasburgh, said property hereby transferred being particularly described as follows, viz: the following described promissory notes: . .

"Reference being made to said report for more minute description. "It is intended that this assignment shall have effect to convey said property to said Charles at the time at which I received the same by said report, together with all interest accrued thereon.

"In presence of "

"Signed,

MARY F. ALLEN.

L. S.

The assignment from Sarah M. Allen was similar to Mary's.

POWER OF ATTORNEY.

"I, Mary F. Allen, hereby constitute and appoint E. A. Stewart, Esq., of Derby, to be my lawful attorney for the following purposes, to wit: To examine and settle accounts with Charles P. Allen, my guardian, and for me and in my name to give him a final discharge of all his liabilities to me, my heirs, executors, administrators or assigns.

"St. Albans, 26th Dec., 1871.

"Attest, SIDNEY W. BEAUCLERK.”

MARY F. ALLEN.

Wade v. Pulsifer.

The answer, after stating in what respect the bill is multifarious, contained the following:

And that the said bill is altogether multifarious as appears from the plaintiffs' own showing; and the defendants therefore claim that for this reason the plaintiffs cannot sustain said bill; and these allegations the defendants make in bar of the plaintiffs' bill, and pray that they may have the same benefit therefrom as if they had formally demurred to said bill.

The following receipt was recorded in the records of the Probate Court:

“IRASBURGH, 18th September, 1873. "Received of Charles P. Allen, administrator of the estate of Mary F. Beauclerk, fifteen hundred, fifty-nine dollars, ninety-four cents, being the cash in his hands belonging to me, of said estate; also received all the notes, accounts, and other personal property belonging to me, of said estate, of every description. Also received fifty-three dollars and fiftyfour cents, rent rec'd of Charles Kidder, since settlement of said Allen's account as administrator, and not accounted for in said account. "SIDNEY W. BEAUCLERK.

"Received on file Sept. 18, 1873, and ordered recorded.

"E. A. STEWART, Judge.

"A true record,-Attest, E. A. STEWART, Judge."

H. S. Royce and L. H. Thompson, solicitors for the orators. The guardian had no right to accept a gift from his wards until after they had attained their majority, and his business relations and influence growing out of his guardianship had fully terminated, and they became fully informed as to their rights, and he stood to them exactly in the same position a stranger would have occupied, so that he would have no advantage whatever from his superior knowledge of their property, and his former relation as guardian to them. 3 Leading Cases in Eq., (3d Am. ed.) 114, 115, 138, 141, 143; 1 Story's Eq. Jurisp., (6th Amer. ed.) sec. 317-320; Adams's Equity, (6th Am. ed.) 380; Hylton v. Hylton, 2 Ves. sr. 547; Hatch v. Hatch, 9 Ves. Jr. 291, (Sumner's ed.) also note p. 298; Pierce v. Waring, 1 P. Wms. (6th ed.) p. 121, cited in Cox's note; Griffin v. Deveuille, 3 P. Wms. 131, cited in note to Osmond v. Fitzroy; Wright v. Proud, 13 Ves. Jr. 136; Wood v. Downes, 18 Ves. Jr. 125; Thornber v. Sheard, 12 Beav. 589; Hoghton v. Hoghton, 15 Beav. 299 and 300; Eberts

Wade v. Pulsifer.

v. Eberts, 55 Penn. St. 119; Waller v. Armistead, 2 Leigh 11; Archer V. Hudson, 7 Beav. 551; Galatian v. Cunningham, 8 Cow. 372, 375, et seq.; Garvin v. Williams, 44 Mo. 468; Greenfield's Est., 14 Penn. St. 505; Hill on Trustees, (4th Am. ed.) 245, 246. In Perry on Trusts, sec. 200, it is said that, while the relation of guardian and ward actually subsists, no contracts can be made between them. Lee v. Graham, 6 Dana, (Ky.) 176, et seq.; Hoffman Steam Coal Co. v. Cumberland Coal & Iron Co., 16 Md. 507, 508; Schouler's Dom. Rel. 512; Huguenin v. Basely, 3 Lead. Cas. Eq. (4th Am. ed.) 94; s. c. 14 Ves. Jr. 273; Kerr on Fraud and Mis. 177; Walker v. Walker, 101 Mass. 169; Revett v. Harvey, 1 Lim. & Stu. 503. Unless the donee overcomes the presumption of undue influence, equity refuses to uphold such a transaction between parties standing in the relations named. 2 Lead. Cas. in Eq., (4th Am. ed.) Pt. 2, pp. 1193, 1196, 1213, 1216, 1228; 3 Lead. Cases, (3d Am. ed.) 139, 141, 143; Wood v. Downes, 18 Ves. Jr., 120 and note 1, p. 130. Mott v. Harrington, 12 Vt. 199, cites with approval Wood v. Downes; and lays down a much stricter rule between attorney and client than stated above. Rhodes v. Bates, 1 L. R., Ch. App. 256, 259; Greenfield's Est., 14 Penn. St. 505; Archer v. Hudson, 7 Beav. 551; Cooke v. Lamotte, 15 Beav. 240 et seq.; Hoghton v. Hoghton, 15 Beav. 298, et seq.; Eberts v. Eberts, 55 Penn. St. 119; Todd v. Grove, 33 Md. 192, et seq.; Garvin v. Williams, 44 Mo. 468; Bellage v. Southee, 9 Hare, 534; Bergen v. Udall, 31 Barb. 21 et seq.; Pairo v. Vickery, 37 Md. 484 et seq.

Equity raises the presumption in a transaction between parties standing in the relations to each other in which Charles P. and his sisters stood, that the conduct which is claimed to amount to ratification or acquiescence was induced by the same influence that procured the original gift, and the burden is on the defendants to overcome this presumption. 2 Lead. Cas. in Eq., (4th Am. ed.) Pt. II. 1263; Long v. Mulford, 17 Ohio St. 484; Waters v. Thom, 22 Beav. 559; Curtin v. Patton, 11 Serg. & Rawle, 310, 311; Hinely v. Margritz, 3 Penn. St. 428; Lessee of Drake v. Ranney, 5 Ohio, 255, 256; Lee v. Graham, 6 Dana, (Ky.) 181; Adair v. Brimmer, 74 N. Y. 554; Fish v. Miller, 1 Hoff. Ch.,

Wade v. Pulsifer.

279, et. seq.; Hoffman Steam Coal Co. v. Cumberland Coal & Iron Co., 16 Md. 508, 509; Cumberland Coal & Iron Co. v. Sherman, 20 Md. 134; Pairo v. Vickery, 37 Md. 486, et seq.; Cockerell v. Cholmely, 1 Russ. & Mylne, 425; Kerr on Fraud & Mis. 300, 301; Micon v. Lamar, 9 Reporter, 401; Sims v. Everhard, 10 Reporter, 713; s. c. 102 U. S. 311.

The orators claim that as there is no dispute about the facts, it is solely a question of law for the court to determine from the facts stated, whether there has been acquiescence or not. 1 Greenl. Ev. (12th ed.) sec. 197 a.; Nash v. Harrington, 2 Aik. 11; Cayuga Co. Bank v. Warden, 6 N. Y. 29; Healey v. Utley, 1 Cow. 352; Dole v. Gold, 5 Barb. 490; Farmers' Bank v. Vail, 21 N. Y. 486; Tracy v. Atherton, 36 Vt. 512.

The receipts do not estop the wards. Hall v. Cone, 5 Day, 543; Waller v. Armistead, 2 Leigh, 11; Sullivan v. Blackwell, 28 Miss. 737; Musser v. Oliver, 21 Penn. St. 362; Thornber v. Sheard, 12 Beav. 589; Eberts v. Eberts, supra; Lee v. Graham, 6 Dana, (Ky.) 181; Felton v. Long, 8 Ired. Eq. 224.

Again, while Charles P. retained the entire estate of his wards in his hands, and acting as their guardian, had the exclusive control and management of the same, no inference of acquiescence can arise at law or in equity. He retained the entire property of Mary F. until Feb. 17, 1872, and the entire property of Sarah M. until Feb. 8, 1872. Greeley v. Mousley, 4 De Gex & Jones, 95.

From January 2, 1872, Sarah M. and Mary F. were both under coverture. March v. Russell, 3 M. & Cr. 32 (14 Eng. Ch. R).; Steel v. McKnight, 1 Bay, (S. C.) 64; Felton v. Long, 8 Ired. Eq. 228; Hatch v. Hatch, 9 Ves. Jr. 298.

Edwards, Dickerman & Young, for the defendants.

The defendants claim in this case that Sarah M. and Mary Frances made assignments of the property named therein to Charles P. Allen for the consideration therein named, and that Sarah M. and Mary Frances were fully and fairly informed by Charles P. of their right to the property assigned, and that they each were making a gift of so much of their property to him; that each made her gift understandingly, voluntarily and without any undue ad