Walker v. Walker's Executor

APPEAL from the Circuit Court for the District of Massachusetts; the case was this:

In September, 1845, Dr. William Walker, then a citizen of Charlestown, Massachusetts, without cause, compelled his wife and two of their children to leave his house. Before this time he had treated his wife with great harshness and cruelty, proceeding so far as to inflict personal violence on her. This conduct entitled his wife, by the laws of Massachusetts, to a decree of divorce from bed and board, and for a proper allowance of alimony; and, with a view to obtain these, she applied to counsel to take legal proceedings against her husband. On learning this Dr. Walker sought the advice of his friend, Uriel Crocker, and requested him to confer with a lawyer on the subject. This friendly service was performed by Mr. Crocker, and the conference resulted in recommending the husband to settle on his wife $50,000, and that articles of separation between them be executed. It was considered that the sum agreed on was a suitable settlement under the circumstances, as nearly the same amount had been obtained by Dr. Walker from the estate of his wife's father, and as Dr. Walker was, independently of this, a person of fortune; his estate at the time having been between three and four hundred thousand dollars.

The parties adopted the recommendation of Mr. Crocker and his conferee, and on that basis the articles of separation were drawn and executed. By these articles Dr. Walker transferred to trustees, in trust for his wife, the amount of property agreed upon, and directed the income to be paid to her during her life. This transfer was, however, on the express condition that Mrs. Walker should release her possibility of dower, when asked to do so, to all the real estate which he should sell during his lifetime, and if she survived him, that she should release her right of dower to his entire estate. The trustees on their part covenanted to indemnify the husband from all payment of alimony thereafter, and the deed contained a stipulation that if the parties should afterwards come together the trust should remain, and be executed in like manner, as if they should live separate.

The parties continued to live apart, after the execution of these articles, until the month of April, 1846, when Mrs. Walker returned to her husband at his request, and again for a certain time lived with him.

The main controversy in this case grew out of transactions which occurred after Mrs. Walker thus returned to her husband's house.

The money was admitted to have been always paid by the trustees into Mrs. Walker's own hands. And that in September, 1846, when the first payment after her return to her husband's house was due under the deed of trust, Dr. Walker went to Mr. Crocker, the managing trustee, with an order for the money from his wife, and stated that she had agreed that he should invest the amount for her, with the sum of one thousand dollars previously paid to her at Crocker's request.

As to the rest of this part of the case-assuming that the testimony of a daughter, Miss Emily Walker (by whose testimony the facts in regard to it were in a considerable degree sought to be established), could be relied on-the facts were these:

On the occasion of a second payment, which was made to the wife in person, as were the rest, Miss Walker testified that her father wished her mother to give him the money unconditionally, saying that she had no need of it, now that she was in the house with him, and that all her wants were supplied; but the request was declined. The subject was discussed between the parties for several days, and finally Mrs. Walker surrendered the checks for the money, on the promise of her husband to invest them for her at the time he received them. The same discussion ensued when the next payment was made, and the same struggle occurred on the part of the husband to get the money from the wife without any promise, and with the same result-on agreement by him to invest it for her. The discussion and struggle were renewed on the occasion of the receipt by the wife of the third payment, and was ended by the husband promising the wife to invest the check then on hand, and all future checks which he should receive from her, for her benefit. After this there was quiet in the family, and Mrs. Walker, relying on her husband's promise, paid to him, while she remained in his house, the successive checks as they were received from the trustee. In 1855, Dr. Walker was taken ill. His daughter, already named, testified as to what took place during this illness as follows:

'He said that he was very ill; that he could not live many weeks, perhaps not many days; that there were some things which he had neglected to attend to; that this neglect troubled him a great deal. He had neglected, he said, to invest the money which he had received from my mother, which she had received from the trustee, Mr. Crocker; that he had intended to invest it; that the difficulty with him had been to find a safe investment; that it was her money, and all she had; that it would not do to risk anything with it. This he said to me, not once but many times.'

The witness was sharply cross-examined, and otherwise attempted to be discredited; but nothing was said by her, or shown by others, to bring into doubt her original statement.

At another time-having previously requested Crocker to defer the payment of a sum of money then due to his wife, on account of his apprehension that she would be unwilling to have it invested for her, as he wished to do-he desired Crocker to go to his house and pay his wife the money, as he had a good chance to invest it. In fact the whole evidence made it clear that Dr. Walker received the income of his wife's estate from her hands on the condition that he would invest it, as received, for her benefit, and that he agreed to this condition.

Mrs. Walker lived with her husband until June, 1860, when she again abandoned his house on account of his cruel treatment of herself and their daughters, and remained away from him during the residue of his life.

After the separation in June, 1860, Dr. Walker went to reside in Newport, R. I., and died there in 1865, leaving more than a million of dollars of estate, and a will, which, after setting aside $180,000 in trust, to secure from the income to his wife, with the rents of the $50,000, settled in 1846, an annual income of $3000; and to his children the remaining income; and after various legacies, including that of most of his silver plate between his wife and daughters, left the residue of his estate to literary and scientific institutions. The provision made by his will for his wife was declared by the will to be 'in full and in lieu of her dower.'Letters testamentary were granted on Dr. Walker's estate in Rhode Island; but letters ancillary were also granted in Massachusetts, where he had a large amount of personal property as well as in Rhode Island.

The granting of letters testamentary upon Dr. Walker's estate was opposed by his heirs-at-law, and after the grant of the letters, they threatening to seek to have them vacated, a compromise was effected, and a deed executed accordingly, between the heirs and the residuary devisees, by which the former released to the latter, after the payment to themselves of a considerable sum of money, the residue of the estate, after payment of all debts and just claims upon it. Mrs. Walker was a formal party to this deed.

Mrs. Walker now, October Term, 1865, filed a bill against her husband's executors, alleging a trust or investment as respected the moneys which she had paid into his hands, and calling for an account.

The executors, either by the answer or in the argument, set up as defences to the bill,

1. That the original article of separation, having been a voluntary agreement of husband and wife to live separately, was invalid; and the trust created by it of course invalid also; that this especially was so as the instrument was construed by the other side, for that this construction made it his interest to oppose his wife's return to his house, since he would have then both to support her and to let her have the separate income also.

2. That as to the sums received from his wife, equity would not make Dr. Walker a trustee for her; that if he could properly be a trustee at any time, yet that during the cohabitation of the parties the trust was suspended; moreover that the evidence was insufficient to show any intention to make himself such trustee in fact; the bill not being filed until twenty years after the alleged promises were made, and the evidence to support it being chiefly that of the daughter, a witness naturally inclined to the mother's side, and whose statements were largely colored by her opinions and feelings.

3. That Dr. Walker having died in Rhode Island, and his will having been proved there, this suit should have been brought there and not in Massachusetts, where it was brought.

4. That Mrs. Walker, having been a party to the deed of compromise, was estopped from bringing this suit.

5. That by accepting the provisions of her husband's will she had waived all right to maintain a suit like the present one.

The court below sustained the bill; held Dr. Walker a trustee to invest for his wife the income of the settled property received by him from her; and referred the case to a master for an account. The master charged Dr. Walker's estate accordingly, charging him also interest compounded annually, but allowed him commissions as trustee, $1682.38. He also allowed his estate a credit of $2400, which was claimed by it in virtue of a receipt of his wife's, thus:

'Out of the sum of 2087 dollars and 97 cents, which I have received of the trustees, as specified in their two first accounts, I have refunded to my husband $1500, fifteen hundred dollars, being part payment of 24 hundred dollars, which he gave, at my request and on my account, in equal proportion to my two sons; and I agree that the like sum of 12 hundred dollars shall be given successively to my other children, Frances, Kate, and Abby, in such manner as may be agreed upon between me and my husband, as far as the income or the trust property will allow, reserving to myself the right to use as much of said income as I may need for private expenses and any charitable objects I may wish to favor.

'ELIZA WALKER.

'BOSTON, March 27, 1847.'

The Circuit Court affirmed this report, giving Mrs. Walker a decree for $81,750.85; and Mrs. Walker appealed, asserting among other things that not only was Dr. Walker entitled to no commissions as trustee, but that his conduct was such as deserved severe treatment, and that interest ought to have been compounded semi-annually.

The case was elaborately and ably argued by Messrs. Sidney Bartlett and B. R. Curtis, for the appellant; and by Messrs. Thomas and Hutchins, contra; the additional point being made in this court in behalf of Dr. Walker's estate, that under the General Laws of Massachusetts, ch. 97, section 16, the executors were not liable to this suit, because it was begun within one year after they gave bonds.

Mr. Justice DAVIS delivered the opinion of the court.