Hanly v. Sprague , 20 Me. 431 ( 1841 )

The opinion of the Court was by

Weston C. J.

The objection arising from the coverture of Nancy Martin, formerly Nancy Sprague, has been removed by an amendment of the bill. She and her husband have released and assigned her interest, and his in her right, to the other plaintiff's. Its acceptance by the guardian was sufficient to give efficacy to the instrument. It might prove beneficial to the wards but could in no event injure them. It being subsequent to the right she acquired from the creditors, that also passed by the assignment. She was under no certain liability to pay costs, which depend on the discretion of the Court. Resides, the guardian, receiving her release, is under an equitable obligation to indemnify her for any expense, for which she might become liable in the prosecution. No question, as to the mesne profits, will be settled by this cause. Nor has she in any other form, any direct interest in the estate, sought to be recovered by her children. And we are of opinion, that the release, executed by Hiram Sprague, divested him of all interest, as legatee or otherwise, in the subject matter of this suit.

The agreement originally made between Noah Sprague, the testator, and Hiram, his son, as charged in the bill, is proved by the deposition of Hiram ; and the defendant, Noah Sprague, the younger, admits in his answer, that before he became interested, he was apprized by Hiram of the bargain between him and his father. That he advanced the money due upon the mortgage, upon the same terms, he does not directly admit; and he denies that he made any agreement with his father, to hold any part of the property in trust for him. And yet the implication is very strong from the answer, that he was substituted for Hiram, and that he must have been aware, that both Hiram and his father so understood it. He says he was requested by Hiram to take his place, and that after much solicitation, he did agree to obtain the money, and pay the amount due on the mortgage. Then follows a denial of any affirmative agreement, to hold any part of the property in trust. But he does not say, that he refused to take Hiram’s place, or that he notified him or his father, that he was acting only with a view to his own interest.

If the defendant, by any mental reservation, intended to disappoint the expectations of his father, of which he was fully apprized, it was a course of proceeding, which cannot be justified. It further appears, from the positive testimony of Hiram Sprague, that Noah agreed with his father, in his presence, to take the property upon the same terms, that had been agreed between him and Hiram. Nancy Martin deposes, that Noah, the defendant, expressly declared to her, that such was the fact. And the conversations, to w'hich she deposes, between him and his father, prove the claim of the father on the one hand, and its recognition on the other. Upon this point, the answer is contradicted by the positive testimony of two witnesses. If the defendant intended to hold the property, and to disclaim the trust, it was a fraud upon the father, from the effect of which those who represent him are well entitled to be relieved.

But in our judgment, it is deducible from the answer, that Noah, the defendant, took the place of Hiram, and is therefore fairly chargeable with the same trusts. The defendant, Davis, not being a purchaser for an adequate consideration, is equally liable, having at any rate no pretension to retain more than is necessary for his own indemnity. Hiram was to have the Benzy place to his own use ; and the equity of the case does not require, that the title of Davis to this part of the property should be disturbed. That is of greater value than the consideration paid by him. Upon a view of the whole case, we are not satisfied, that Noah Sprague, the defendant, has verified claims, which ought equitably to defeat or impair the right of the plaintiffs to have the other part of the estate conveyed to them.

And it is ordered and decreed, that the defendant, John Davis, convey, by a good and sufficient deed, to the plaintiffs, Danforth Sprague, Charles Sprague, and Joseph Sprague, their heirs and assigns, the estate described in the bill, other than the Benzy farm, and that the defendant, Noah Sprague, also release to the same plaintiffs, all his right, title and interest in said estate.