
    *Samuel v. Marshall and Wife and Others.
    March, 1832.
    Deeds — Imbecility of Donor — Fraud.—A person reduced to a state of mental imbecility by habitual intoxication, makes a voluntary and irrevocable deed of gift of his whole estate, to a cousin ger-man, to the disherison of his half sisters, reserving the use to the donor for life, without any reasonable motive assigned for such an act: Held, fraud and imposition may be inferred from the circumstances, and from the very nature of-the contract; and this deed of gift is fraudulent and void.
    Same— Same —Drunkenness —Validity of Contract— Case at Bar. — in such cases, drunkenness, if produced by the donee, or if so extreme, that the party did not know what he was about, is a material circumstance in' deciding on the validity of the contract; and imbecility of mind, however produced, combined with other ingredients, and particularly, with the absence of consideration, has always an important influence on the question of the validity of contracts.
    
      Chancery Practice — Issue Directed — When Proper.--If the evidence on a question of fact in a suit in chancery, though various and conflicting, he such as ought to satisfy the chancellor’s conscience as to the truth of the case, he need not direct an issue to try the fact.
    Distributees — Suit to Settle Estate — Parties. — The dis-tributees of a deceased person may maintain a bill in equity, to impeach and set aside a deed of gift of personal estate made hi’ the decedent in his lifetime, as fraudulent; and the court may, at their suit, declare the deed fraudulent, and annul it; but the subject itself can only he decreed to the personal representative of the decedent, or to the distributees in a case in which the personal representative is a party.
    Richard Coleman, by deed dated the 25th April 1822, recorded in the county court of Spotsylvania in July 1823, conveyed to his cousin german, Josiah Samuel, his heirs, executors, administrators a,nd assigns, in consideration of natural love and affection, all his lands, slaves, stock of every description, household furniture, and plantation utensils, reserving to himself the use and profits of the property, for and during his life. The conveyance was merely voluntary.
    After the death of Coleman, B. Marshall and Elizabeth his wife, W. Coleman and Sarah his wife, H. Wright and Lucy his wife, and J. White and Thirsa his wife (the female plaintiffs being the half sisters, heirs at law and distributees, of Coleman) exhibited a bill against Samuel, in the supe-riour court of chancery of Fredericksburg, alleging that Coleman’s mind, naturally weak, was so impaired andstupified by habitual and constant intoxication, the means of *which were profusely supplied him by Samuel, in order to accomplish his own fraudulent purposes, that he was utterly incapable of making any valid disposition of his property; and that the deed of April 1822 was obtained from him, while he was in this state of mental imbecility, by gross deception and fraud practised by Samuel; and therefore praying that the deed should be declared void, and set aside, and the plaintiffs declared entitled to the subject ; and general relief.
    Samuel, in his answer, admitted, that Coleman was an habitual drunkard, but denied, that this habit had so impaired his mind as to render him incapable of managing and disposing of his property ; on the contrary, he said, that Coleman, when sober, was perfectly capable to do so ; and, at the time he executed the deed in question, he was quite sober, was in possession of his faculties, knew what he was doing, and was fully competent to make any disposition of his property. He stated the relation between Coleman and himself; that they were brought up and educated together, and contracted the closest friendship in early youth, which continued uninterrupted till Coleman’s death ; and after Coleman attained to manhood, before he was addicted to any bad habit, he declared, that in case he should die without heir, he would leave his estate to Samuel, and frequently repeated the same declaration during his life: that he did not supply Coleman with intoxicating liquors, for the fraudulent purpose charged : that Coleman executed the deed in question, of his own free will and accord ; that he, Samuel, exercised no influence, and practised no deception or fraud upon him, to obtain it. And he further stated, that in the autumn of 1822, Coleman determined to break up housekeeping, and to live with Samuel ; he also determined to sell some of his property, and pay his debts : that, with Samuel’s assent and concurrence, 200 acres, parcel of the land conveyed by the deed of April 1822, were sold for 1400 dollars, of which 100 dollars were paid in a bond for that sum assigned to him, and the residue in slaves five in *number. valued at 1300 dollars: that Coleman, in like manner, with Samuel’s consent and concurrence, sold three of his slaves, and part of his stock and plantation utensils, the proceeds of which sales were applied to the payment of his debts: that Samuel, with Coleman’s consent, had sold the five slaves received for the 200 acres of land, on a credit, but the money not having yet fallen due, he had not received it: that Samuel had sold the residue of the land conveyed by the deed for 300 dollars; and that he had paid one small debt of Coleman, and intended to pay all his debts.
    Many depositions were taken and filed by both parties, upon the questions of fact—
    1. Whether Coleman’s mind was so impaired by inveterate habits of intoxication, as to render him, whether drunk or sober at the time of executing the deed of A.pril 1822, incompetent, in point of understanding, to make any disposition of his property? Upon which point, the evidence of the witnesses was (as is usual in such cases) various and conflicting ; but, in the opinion of the chancellor and of this court, the weight of evidence was, very decidedly, against his competency.
    2. Whether he was sober at the time of executing the deed ? According to the evidence of the subscribing witnesses to the instrument, he was sober, and, in their opinion, of competent mind to know what he was doing, and to dispose of his property; but these subscribing witnesses were persons whose acquaintance with him, it appeared, had just commenced ; and on the other hand, there was proof, that upon the deed being afterwards mentioned to him, he said he had no recollection of having ever executed such an instrument, and spoke in harsh terms of Samuel.
    3. Whether any undue influence was exercised over him, or any deception or fraud practised upon him, by Samuel, in order to obtain the deed from him ? As to which there was no direct evidence of undue influence or fraud; no evidence except what might be inferred from the contents and purpose of the deed itself, and from the circumstances, that *Samuel had promised to pay the draftsman of the instrument a very high compensation for drawing it; that Coleman was staying at Samuel’s house at the time, and was very subject to be influenced by others, to make wills and conveyances of his property, and had been induced by solicitations to make several such dispositions of it (previous to this) which had been cancelled: there was evidence, indeed, that at the time he executed this deed, one of the motives he assigned for it, was, that he wished to get rid of such importunities.
    4. Whether he was upon friendly terms or not with his half sisters and their husbands ? Upon this point again, the evidence was contradictory: there was evidence, that he entertained, and had always entertained, a rooted aversion to his sisters; and evidence to the contrary, that he was affectionate towards them.
    The chancellor declared the deed null and void, and directed a commissioner to ascertain and report, what part of the subject conveyed by it was still held by Samuel, and the profits thereof, and how much money he had received of the proceeds of such part of •the subject as had been sold.
    The commissioner resported, that Samuel had received 300 dollars for the part of the land sold by him, out of which he had paid a debt of 15 dollars due from Coleman ; leaving 285 dollars in his hands. That the nett proceeds of sale of the five slaves sold by Samuel, as admitted in his answer, and the value of sundry articles of personal estate of Coleman which Samuel had converted to his own use, amounted to 1600 dollars; but that Samuel had as yet received only 150 dollars of the money due for the proceeds of the five slaves. That other slaves remained unsold in his hands, the profits of which amounted to 181 dollars. That other articles of personal property of Coleman had been sold, by agreement between the parties, and bonds taken for the proceeds, payable to the marshal of the court, which were deposited in court, to abide the final decree : these bonds amounted to 186 dollars.
    *Upon this report coming in, the chancellor decreed, that Samuel should pay the plaintiffs, the sums of 285 dollars, balance of the proceeds of land sold by him, and 1600 dollars nett proceeds of the five slaves, &c. with interest on those sums, respectively; that he should pay them the sum of 181 dollars, amount of profits of the slaves remaining unsold; that he should deliver them these slaves; and that the bonds made payable to the marshal for 186 dollars should be delivered over to them. From this decree Samuel appealed to this court.
    Stanard for the appellant,
    1. argued the questions of fact upon the evidence, and insisted, that Coleman was of competent understanding to make the deed, and that no deception, imposition or fraud, no undue influence or art, to obtain the deed from him, was justly imputable to Samuel. 2. That, at any rate, considering the contrariety of the evidence touching the material facts, the chancellor ought to have directed an issue to ascertain the truth by the verdict of a jury. 3. That the decree was certainly erroneous, in setting aside the deed, so far as it related to the personal subject, upon this bill of Coleman’s distributees, and decreeing this part of the subject to them ; for none but Coleman’s administrator could maintain such a bill;— and erroneous too, in decreeing Samuel to pay 1600 dollars in money, when the far greater part of that sum appeared to be still due upon the bonds taken for the proceeds of the five slaves sold by him.
    Eeigh, for the appellees,
    1. submitted the first and main question to the court: he said it was not necessary to argue it; the court would weigh the evidence. 2. He said, a court of chancery might direct an issue to inform its conscience, but it was, in no case, bound to do so : the question was, always, whether or no, in sound discretion, an issue ought to be directed. Pryor v. Adams, 1 Call, 382; Stanard v. Graves, 2 Call, 369 ; Rowton v. Rowton, 1 Hen. & Munf. 91; Hampson v. Hampson, 3 Ves. & Beam. 41. *And 3. he contended, that if it was wrong to decree the personal subject to Coleman’s distributees, against an executor de son tort (as, he said, Samuel was) the dis-tributees could entertain a bill to impeach and set aside the fraudulent deed, which prevented the devolution of the subject to Coleman’s administrator, who would be a trustee for them.
    Stanard replied, upon the last point, that to entertain s^uch a bill as this for the distri-butees, to set aside the deed in respect of the personal subject, would lead to this difficulty : if, upon their bill, a decree should be rendered setting aside the deed, would that decree preclude Samuel from insisting on the fairness and validity of the deed in a suit brought by Coleman’s administrator to impeach it ? when, if the decree were for Samuel, he could not plead it in bar of a suit brought by the administrator to impeach it. The bill should be dismissed as to the personal subject.
    
      
      Contracts — Validity—Imbecility. — Although a person may labor under no legal incapacity to do a valid act or make a contract, yet if the whole transaction, taken together with all the facts, mental weakness being one of them, shows that consent was wanting, it would be void. Of this description was the case of Samuel v. Marshall, 3 Leigh 567. Greer v. Greers, 9 Gratt. 333 (see also, note, citing the principal case).
      On this question of mental capacity to contract, the principal case is cited in foot-note to Beverley v. walden, 20 Gratt. 147. And in Miller v. Rutledge. 82 Va. 867, 1 S. E. Rep. 202, it is said, quoting from Minor's Inst. 572, the test of legal capacity is said to be that the party is capable of recollecting the property he is about to dispose of, the manner of distributing it, and the objects of his bounty. But, of course, the particular act must be attended with the consent of his will and understanding, citing the principal case. And in Porter v. Porter. 89 Va. 122, 15 S. E. Rep. 500, the principal case is cited to the point that mere weakness of the understanding is no objection to a man’s disposing of his own estate. See also, Jones v. McGruder, 87 Va. 379, 12 S. E. Rep. 792, citing the principal case on the question of undue influence.
      And in Korne v. Korne, 30 W. Va. 7, 3 S. E. Rep. 20, it is said: “This is not an instance of a contract made by a person of great mental weakness or imbecility. In such case courts have often held that the transaction, when grossly inequitable or unfair, might be set aside, although the incapacity of such person be not an absolute disqualification for the transaction of business. It therefore seems to me that the following cases, and others relied on by the appellants, have no application to this case: Deem v. Phillips, 5 W. Va. 168: Samuel v. Marshall, 3 Leigh 567, Whitehorn v. Hines. 1 Munf. 557.”
      See generally, monographic note on "Contracts” appended to Enders v. The Board of Public works, I Gratt. 364; monographic note, on “Deeds” appended to Fiott v. Com , 12 Gratt. 561.
    
    
      
      rEqnity Practice — Issue Out of Chancery. — On this question, the principal case is cited in foot-note, to Grigsby v. Weaver, 5 Leigh 197; foot-note to MaGill V. Manson, 20 Gratt. 527; Greer v. Greers, 9 Gratt. 332; Hord v. Colbert, 28 Gratt. 60; Fishburne v. Ferguson, 84 Va. 102, 4 S. E. Rep. 575; Rohrer v. Travers. 11 W. Va. 154; Arnold v. Arnold, 11 W. Va. 462. See monographic note on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473.
    
    
      
      Distributees — Suits for Settlement — Parties. — On this question the principal case is cited in foot-note to Moring v. Lucas, 4 Call 577; Hansford v. Elliott, 9 Leigh 95. and note: Miller v. Jeffress, 4 Gratt. 477; Livesay v. Helms, 14 Gratt. 444; Robertson v. Gillenwaters, 85 Va. 118, 7 S. E. Rep. 371.
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   TUCKER, P.

On the merits of this case, I am clearly of opinion to affirm the decree. The conveyance of the whole of the estate of a wretched sot, about whose capacity to contract, even for valuable consideration, the whole country is divided, to a cousin, to the prejudice of four half sisters, reserving to himself but a life estate, and giving away the residue for nothing, cannot, I think, be sustained with any sort of propriety. Drunkenness, it is true, is no excuse for crime ; but if produced by the donee, or if so extreme, that the party does not know what he is about, it has been considered as a material circumstance in deciding upon a contract : and imbecility of mind, however produced, combined with other ingredients, and particularly with the utter absence of consideration, has always had an important influence upon the question of the validity of contracts. That Coleman was reduced to a state of imbecility, which rendered him liable to be plundered by the designing, X think is abundantly proved. That he was the object of the designs of severa!! around him, we learn are from his own declarations, and it appears he himself was afraid, that, in some *moment of more than common imbecility, he would fall a prey to their cupidity.- That he has done so at last, appears to me very certain. It only remains for the tribunals of justice to redress the wrong-.

The motives which have been assigned for this extraordinary act, are inadequate to account for it. The boyish promise to make his cousin the inheritor of his estate, if he should die without heir, though we should extend it farther than the express words, by the gloss of supposing that he meant his dying without children, will not account for such an act, at a time of life when romantic notions, are tempered, in the man of sense, by reflecting on what is due to nature and to feeling. Still less will it account for the execution of a deed in his lifetime, instead of a will to take effect after his death ; an absolute instead of a revocable instrument; an instrument, which destroys at once, the only motive that stimulates most of those around a miserable drunkard, to pity his weakness, to bear with his olfensiveness, to protect him when he cannot take care of himself, and to minister to him in his revolting infirmities ; instead of an instrument, which, by being revocable in its character, would hold out a perpetual lure to all the seekers after his fortune, and secure to him, to his latest breath, their mercenary services, if he could not command their affectionate attentions. Had he made a will, instead of a deed, we should probably not have found him, as represented by one of the witnesses — dying, without the benefit of medical aid, which, if it could not have saved his exhausted constitution, might, at least, have soothed and mitigated the sufferings of his dying moments.

The next motive assigned for the execution of this deed, is a desire to free himself from the constant solicitations of those around him, to give his property to them. He did not, then, wish to part with his property. Why has he done it ? If this was the motive, the act must be interpreted as commensurate with the motive. Construe the deed to have been made upon a secret trust, that the property was to be *held for his benefit and at his disposal, and that the execution of it was intended merely to hoodwink the greedy expectants around him ; then, indeed, the motive will accounl for it ; but then, in execution of Ihe trust, the property must be reconveyed. This view of the transactions, indeed, not only presents it in a less offensive form in its inception, but is rendered not improbable, by the fact, that Samuel conveyed away the property as Coleman directed, subsequently to the deed ; and that Coleman himself disposed of it at pleasure, but referred those to whom he sold, to Samuel for a title, which was made accordingly. Yet these facts are not much in unison with the declaration, repeatedly made by him, that he did not recollect that he had ever made such a deed. So that the mind cannot be free from doubt which hypothesis co adopt. Either will lead to the same result.

Another fact upon which reliance is placed, to account for this extraordinary deed, is the alleged variance between Coleman and his half sisters. It is most singular, that as to one of them, this alienation of affection is said to have existed when she was only about seven years old ; and it cannot be denied, that there is a conflict of testimony as to his feelings towards them all. But take it for granted--in this state of things, no importunity was to be feared from them. Coleman could sufficiently vent his spleen against them by a will. Are we to suppose, that the inveteracy of his feelings was such as to induce him to shut the door upon all hope of reconciliation ? If he executed a will to their prejudice, it might be revoked, in case he should be reconciled to them. But by executing a deed to another, he tied his hands forever : he put it out of his power to yield to the impulse of natural feelings in their favour, whenever the unnatural hostility between them should have an end. Is it, then, most charitable to suppose, that Coleman, if he was of sound mind, executed this deed to cut himself off from future repentance in their favour, or that he, who from his boyhood had been looking forward to the reversionary interest in this estate, had contrived this scheme by which he *might “make assurance doubly sure.” I think I outrage human nature least, by the latter supposition.

It was said, that there is no proof of any fraud, imposition or contrivance on the part of Samuel. It is true, that except what has leaked out about the compensation to the draftsman for drawing the deed, we see little of Samuel’s agency. But fraud is neither less certain, nor less successful, for being concealed. When it is so, it may indeed elude us, unless detected in the results. Such is the case here. The estate of an imbecile is conveyed to Samuel, without consideration, by an irrevocable instrument, executed among strangers, out of his own neighborhood, and to the prejudice of four half sisters, the natural heirs of his bounly; and this upon flimsy pretences, which can in no wise justify or account for the transaction. These facts are sufficient to stamp the transaction as one which this court should discountenance; and from them, and not from the conflicting opinions of witnesses as to the extent of Coleman’s capacity, I conclude, that the deed was properly set aside by the chancellor.

Had there been a quid pro quo, we might have hesitated. But, surely, the question is, very different, between a contract for valuable consideration, and this gift by an habitual sot, of his whole estate, to take effect at his death, to the disherison of his sisters and natural heirs. In other states, a commission of lunacy might have been issued against him, which would have placed his property intirely out of his control : and. even in the english courts we are told, a commission of lunacy extends to the case of imbecility produced by habitual intoxication, and this in a case “where the party, when he could be kept sober, was a very sensible man, but in a constant state of intoxication he was perfectly incapabie, and would have been constantly contracting insanity per lord Eldon in Ridgeway v. Darwin, 8 Ves. 66, 7. If we have not gone so far in Virginia, it behoves us, at least, to protect such unfortunate persons from overreaching bargains and improvident gifts of their estates, when every natural *feeling is quenched by intoxication. The c.ases of Whitehorn v. Hines, 1 Munf. 557, Bridgman v. Green, 2 Ves. sen. 627, Huguenin v. Baseley, 14 Ves. 273, are not stronger than this.

The decree, however, is erroneous, in directing Samuel to surrender the personal estate of the decedent Coleman, to the plaintiffs, they not being his proper representatives, though they are interested to set aside the deed ; and also; in decreeing payment of the uncollected proceeds of the five slaves, that were received in part payment for the 200 acres of land, and afterwards sold by Samuel. The decree is to be corrected in these particulars.

The decree entered by this court, declared, that there was no error in the decree of the court of chancery, so far as it went to vacate and annul the deed which the bill sought to set aside; but that it was erroneous, in directing the surrender of the personal property and the payment of the personal assets, to the plaintiffs, they not being the legal representatives of the deceased Coleman ; and also, in decreeing the payment to the plaintiffs of the proceeds of the sale of the five slaves received in part of the price of the land sold, instead of decreeing, that so much as had been collected, and the bonds and evidences of debt for the residue thereof, should be paid and delivered over into the hands of a receiver, to be collected and held by him, until, as between the appellees and the personal representative of the decedent, the right to the same should be ascertained. Therefore, the decree as to these particulars was reversed with costs, and as to the residue thereof affirmed; and the cause remanded-, to be further proceeded in according to the principles here declared. But this decree to be without prejudice to any suit, which any legal representative of Coleman may hereafter bring against Samuel for the recovery of the assets of Coleman in his hands.  