
    *Jones v. Robertson.
    Thursday, April 4th, 1811.
    i. Deed of Gift — Mistake—Fraud — Evidence. — what evidence of circumstances prior and subsequent to the date of a deed of gift, are sufficient to set it aside, on the ground of mistake on the part of the donor, and fraud on the part of the writer.
    3. Same — Same—Same—Same—Declarations of Donor.  —Proof of subsequent declarations and acts of the donor, (though not admissible taken singly,) may be received (under total absence of testimony applying to the time of the contract, and in connection with corroborating circumstances) to show that the writing was misunderstood, or misrepresented at the time of signature.
    This Was a suit in chancery, in the county court of Nottoway, on behalf of Mary Robertson, (otherwise called Wilkinson,) against Richard Jones, jun. and others; for the purpose of annulling, on the ground of fraud, a deed of gift executed, by the plaintiff, to the said Jones as trustee for the other defendants, which, on his motion, had been duly recorded.
    The plaintiff in her will alleged that she called on the said Richard Jones, jun. to write her last will and testament; that, accordingly, he came to her house, (as she expected, to do the same,) but wrote an instrument, which she, then, and until very lately, thought was a will, and signed and sealed as such in due form; but, to her utter astonishment, and contrary to good faith, he fraudulently wrote what he termed a deeá of gift, constituting sundry persons, (some of whom were his own children,) who were all absent, afid totally unacquainted with the circumstances, parties thereto, and making himself trustee for their benefit; that the said deed was executed without any consideration, and her property thereby extorted from her, in a manner by which she never had the smallest intention of conveying it; and that the distribution, as therein made, was not agreeable to her intentions even by will.
    The defendant, Richard Jones, jun. in his answer, among other allegations, said “that he received a message from the complainant, some time prior to the date of the deed, to come to her house, in order to do some writing for her, relative to the distribution of her estate; that he went, agreeably to her request, in some short time; and, after being there, was informed by her that she wished to give her estate to her children in a different manner from that in which she had willed *it some time before, and declared that she did not think she was in her perfect senses at the time she made the said will, as she had done so much injustice to her daughter and daughter’s children. This respondent then asked her to inform him in what manner she wished to give her estate, and he would take a memorandum of it, and draw a deed of gift for her, agreeably to the memorandum, and would, on the day mentioned in the said deed, come to her house with it, and bring witnesses to attest it. He accordingly went the day appointed, which was the day the said deed bears date, and carried with him W. Peter Robertson, William Jones and Daniel Robertson. After being there some short time, the aforesaid witnesses left the room, in order that she might read the deed, and make herself acquainted with its contents. This respondent offered her the deed of gift, on the witnesses’ going out, and, at the time, called it a deed of gift. She requested him to read it to her, which he did: she said it was right: he then asked her to read it herself also, as she could read his writing very well. She did so, and a second time said it was right and then requested this respondent not to say anything to her children about the deed of gift, and also to ask the witnesses not to mention it; for, if it was known to her children in what manner she had given her estate, some of them would plague her to death about it. The witnesses were then asked to come into the room, where she signed, sealed and acknowledged her hand and seal; and being asked by this respondent if she also delivered it as her act and deed, she replied she did. The witnesses then attested it in her presence. And - this is the fraudulent manner by which the deed aforesaid was obtained. As. to her directing this respondent to write a will, at the time he went to the house at her request; he positively denies receiving any such instructions from her, or as to what kind of instrument he was to write ; but she wished to give her property in the manner stated *in the deed, and asked him to do the writing for her; he informed her he would draw a deed of gift, which he did, and presented it to her at the time aforesaid, by which name he then and at all other times called it; and at no time of the business was ever a will mentioned by him, or the complainant, as he recollects, except the one she complained of.”
    The other defendants, by their answers, denied any knowledge of the fraud alleged, and insisted upon their rights under the deed.
    Á witness proved that Mrs. Comer, (one of those defendants,) on hearing a person say that he firmly believed the complainant thought, at the time she executed a certain instrument of writing called a deed of gift, (now the subject of controversy between the parties,) that she had only executed a will, replied “that she believed so too, because her mother (the complainant) at that time desired her to request Mr. Comer to go to Major Jones, and ask him to make or alter her will; which message she accordingly delivered to Mr. Comer, who went to Major Jones.” Two of the subscribing witnesses to the deed stated the circumstances relating to its execution much in the same manner as set forth in Richard Jones’s answer; but neither of them swore that Mrs. Robertson actually read, or heard it read; or that it was called a deed of gift in her presence.
    It was also proved, that the complainant appeared much astonished at being informed that the writing she had executed was a deed; declaring that she had never executed but one instrument respecting the distribution of her estate; and that was a will; and a farther circumstance was in evidence; that she had made another will, after the date of the writing in question. One of the subscribing witnesses deposed that the defendant observed to them, as they went to the house of the complainant, that he must enjoin them to secrecy by her request; *but that witness did not hear the complainant make such a request.
    The deed exhibited purported to be a conveyance of the whole of the complainant’s estate, 1 ‘both real and personal, and of every denomination whatsoever,” to be possessed and enjoyed by the, donees, after her death; reserving the full possession and enjoyment to herself for life.
    The county court was of opinion that the deed was executed, under circumstances of mistake and misapprehension, on the part of the plaintiff, and of fraud on the part of the defendant Richard Jones; and that, as the complainant intended only to make a will, the said deed is revocable as other wills are. The court, therefore, adjudged the deed aforesaid null and void, and decreed that it be set aside accordingly.
    Upon an appeal to the superior court of chancery for the Richmond district, the late chancellor affirmed this decree; whereupon Richard Jones appealed, again, to this court.
    Call, for the appellant.
    Hay, for the appellee.
    
      
       Deed of Gift — Mistake —Fraud —Evidence.—See monographic note on “Gifts” appended to Barker v. Barker. 3 Graft 344; monographic note on “Deeds” appended to Mott v. Com.. 12 Gratt. 564; mono-graphic note on “Fraud” appended to Montgomery v. Rose, 1 Pat. & H. 5; monographic note on “.Evidence” appended to Lee v. Tapscott, 2 Wash. 276.
    
    
      
       Deeds — Evidence—Declarations of Grantor. — Parol declarations of a grantor previous to the execution of a deed, and at the very moment of executing It, are admissible to explain the intention with which it was made. Land v. Jeffries, 5Rand. 811, 214, citing the principal case.
    
   The next day after the argument, the judges pronounced their opinions.

JUDGE CABEEE.

The appellee having made her will, and becoming dissatisfied with some of its arrangements, was desirous to change the particular distribution of her property, but not to change the nature of the instrument by which it had been made; and, independently of all other evidence in the cause, the answer of the appellant incontestably proves, that he received no instructions to prepare a deed. The appellee still wished to make a will, although different in its dispositions from the one *she had before made; and she executed the deed prepared by the appellee, without a knowledge of its real nature, and in the belief that it was a will. This case is not analogous to that of Conolly v. Lord Howe, and the Countess of Buckinghamshire v. Conolly. There the only evidence relied upon, to defeat the deed, was the subsequent declarations of the grantor that she had been imposed upon ; and it was very properly rejected, particularly when opposed, as it was, by other declarations of the same person made before the execution of the deed, and calculated, from their nature, to produce a very different effect. The case now before the court bears a much nearer resemblance, in many of its circumstances, to the case of Wilkinson v. Brayfield, and Woodhouse v. Brayfield. There “the defendant Brayfield had, by means of an attorney, prevailed on Elizabeth Corie to levy a fine of some houses; and to execute a deed leading the uses thereof to Brayfield and his heirs; and it was proved that she, at the time of levying the fine, declared she must make use of some rriend’s name in trust; and afterwards, by will, declared she had levied such fine only in trust, and the better to enable her to dispose of the estate; and thereby devised it to Wilkinson and his heirs, subject to the payment of her debts; and, although Brayfield proved a great familiarity and friendship between them, and that she had declared he should have her estate; yet, it was decreed, not only that the estate should be liable to the creditors’ debts, but that Brayfield should convey the estate to the devisee Wilkinson and his heirs.”

On a full view of all the circumstances of the case now to be decided, I am compelled to believe that the deed sought to be set aside was executed through mistake on the part of the appellee, and obtained by fraud on the part of the appellant. I am therefore for affirming the decree of the chancellor.

JUDGE ROANE.

The appellant admits in his answer *that he was sent for by the appellee to do some writing for her, and that she told him when he went to her that she wished to give her estate to her children in a different manner from what she had before done by her will. This “different manner,” standing singly, would be taken to relate, rather to a varying disposition of her property, than to a change of the nature of the instrument by which that alteration was to be effected; and the “writing,” which the appellant says he was requested to do, does by no means necessarily import that it was to be by deed. Standing, therefore, solely on the admission of the appellant in his answer, it does not appear that the ap-pellee contemplated a deed in the origin of this business; it is admitted, on the contrary, by the appellant, that the idea of a deed was first started by himself. This statement is fully corroborated by other testimony showing that the appellee only contemplated a will, and was much surprised to find that a deed, instead of a will, had been executed by her. The testimony as to the surprise is very strong; and, therefore, I infer that, both before and after the deed was executed, nothing but a will was contemplated by the appellee. If, at an intermediate time, viz. that of the execution of the deed, the appellee deliberately changed her mind in this particular, the appellant must regret his own indiscretion in sending out the witnesses who might have proved it. This case, therefore, seems analogous to the case cited from 2 Vern. 303, merely giving to the previous declarations in this case the effect of cotemporaneous ones, under a total absence of testimony as applying to the time of the contract. The declarations in the case before us are very strong to import a surprise on the part of the appellee, and it is proved (to make the case stronger) that Mrs. Comer had acknowledged that the appellee sent a request to Mr. Jones to come and make her will. On the ground of these declarations, therefore, under all the circumstances of the case, and without giving any opinion upon *the • competency of subsequent declarations, abstractedly taken, to fix a fraud on the appellant, I am of opinion that both decrees are correct, and ought to be affirmed.

, JUDGE FLEMING concurred, and both decrees were affirmed by the unanimous opinion of the court. 
      
       5 Ves. run. 700.
     
      
       S Vern. 307.
     