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Clarke v. Quackenbos et al.

possible. I trust that mother is well-shall write to her in a day or two. Inform her that I have written to you, and say that we are well, and more anxious for, than she is to have, everything arranged as soon as can be, so that we may go on for her, etc., etc. I write in great haste, as the mail closes in a few minutes.

Address all future communications to me at this place. I am very anxious to know how mother is, and will be much obliged to you if you would inform me.

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Decree: That the bill be dismissed so far as it charges fraud upon defendant, and dismissed so far as it relates to the estate of William A. Clarke, deceased. That the investments by defendant in the house, lot and furniture, belong to him under the agreement, and complainants have no right or claim therein, but that the proofs are not sufficient to show that defendant is entitled to the residue, and that defendant pay $1,580.80 to complainants within ninety days, etc., or, etc.

That the proofs show that defendant is entitled to the property at Jacksonville. That the balance must be distributed among the heirs at law. That so far as the bill charges fraud, it is dismissed, the charge not being sustained by the evidence. On the contrary, the facts show that defendant has, in the transactions out of which this suit originated, established a character for honesty and filial affection in pleasing contrast with that of others, who are alone entitled by the strict rules of law to a portion of the estate of Mrs. Clarke, deceased, which in good conscience they ought not to have. The decree was pronounced by WOODSON, Judge. The errors assigned are, that

The court erred in rendering a decree in favor of the complainants in the suit.

The court erred in not rendering a decree in favor of the defendant in the suit, dismissing complainants' bill.

The evidence does not sustain the case presented by the complainants' bill.

The evidence does not authorize or warrant the decree, in so far as the court rendered a decree against the defendant in the suit.

The case presented by the complainants' bill does not authorize or warrant the decree.

The court ought to have allowed the defendant in the suit his cash expenses and reasonable remuneration for all services

Clarke v. Quackenbos et al.

and losses incurred, rendered and suffered by him in carrying out the agreement set up in defendant's answer.

H. B. MCCLURE, for Appellant.

D. A. SMITH, for Appellees.

BREESE, J. This case presents not a single feature to commend it to the favorable consideration of any court.

The answer of the appellant, sustained as it is by all the proofs in the cause, shows a case of such heartlessness on the part of the complainants-such want of filial regard—such absence of affection and reverence for an aged mother on the very brink of the grave, and who had been more than mother to all of them-whose temper was of the kindest and most cheerful nature-whose heart yearned for her children's love and sympathy-who had been accustomed to all the luxuries and attention which wealth cannot fail to command-within the circle of whose gentleness and love, all ought to be happywhose gentle disposition created an atmosphere around her, which should have warmed the coldest heart-who had, from the impulses of her generous nature, embarrassed herself to relieve them-who was suffered, by them, surrounded, as they were, by all the comforts of life, residing in luxurious mansions, with rooms well furnished and to spare, to make her home with strangers, at the advanced age of eighty-three, who denied to her remains the shelter of their roofs,-presents such a picture of cold and heartless nature, as to make humanity shudder! We cannot contemplate the painful picture with that coolness which should characterize judicial conduct, and we shut it out from our view with the remark, that their presumption, in claiming the property of a mother thus abandoned, and neglected, is unparalleled. The able counsel who argued the case on their part, contented himself with contending, that although property and means sufficient to procure and furnish a fit residence for this aged mother, was undoubtedly, by her free gift, the property of the appellant, yet as to the surplus remaining, he was but a trustee for the complainants, her heirs at law. This is the only point we will notice. This surplus it seems, amounted to about fifteen hundred dollars, and for it, a decree has been passed to compel the appellant to account to complainants for it, all pretense of fraud so freely charged in the bill against him, being expressly ignored in the decree itself.

Under the circumstances of this case, there being such a full

Clarke v. Quackenbos et al.

denial of all the material statements of the bill, and the proofs being so full and conclusive, in support of the position assumed by the appellant in his answer, that he was the donee of the entire fund, that we would require the strongest evidence to establish a trust in their favor-in favor of persons who had repudiated-disowned-contemned and spurned the donor. From the evidence, we think it is impossible to believe, that this venerable mother, feeling so sensitively as she appears to have done, the coldness and ingratitude of these her children, and protesting always, that they should enjoy none of the estate, should have so bestowed that estate as that any part of it should come to the complainants. There is no one fact in the cause to warrant this conclusion, and it should not exist in such a case as this, in mere inference from other facts, but should be positively established. The appellees attempt to make out this trust, by the testimony of James P. F. Clarke, who, to his credit be it said, refused, though a brother, and as well entitled to a share of this estate as the complainants, to become a party to the bill. This witness gives a full and apparently fair history, of the arrangements by which appellant came into the possession of their mother's whole estate. His testimony, in the most essential particulars, does not materially differ from the testimony of Mrs. Waite and Mrs. Woodruff, nor is it at variance with anything contained in the letters of appellant to the financial agent of his mother. From all these sources, keeping the circumstances surrounding the parties in viewthe unnatural conduct of these complainants-the filial love and reverence of the appellant-the utter negation by the mother of any wish that these complainants should profit by her estate, we find in none of these, any satisfactory evidence of a trust in the surplus to be held for the appellees. We adopt the theory in relation to this surplus, presented by the appellant in his answer. That while for the maintenance of his aged and venerable mother, and for her reasonable enjoyment, growing out of the arrangement she had made with the appellant, she had the same kind of interest in the surplus, should there be any after purchasing and furnishing a residence, that she had in the establishment itself, yet such surplus, like the house and furniture, was the property of the appellant. It could not, in our judgment, go to these complainants, without doing violence to the arrangement, and to the manifest intention of the parties, the donor and donee of the fund.

Ingratitude is a most detestable vice, and most against justice, and sharper than a serpent's tooth, it wounds so deeply as to agonize by its sting. Does equity demand compensation shall be made to those who have so violated justice, and so

27b 290 41a 246

Quackenbos et al. v. Clarke.

stung to agony the bosom that nurtured them? We could not so hold without the strongest evidence. We would not infer it from circumstances, except of the most convincing nature, none of which do we find in this case. The evidence of Mrs. Waite, Mrs. Woodruff, James P. F. Clarke, and the letters of appellant to the financial agent, the Sacketts, fail to furnish, when looked at in the light of the circumstances in the case, any sufficient evidence of a trust in this property. The burden of proof was on the complainants to establish a trust, which they have failed to do. The decree is reversed, and the bill dismissed.

Decree reversed.

JULIA ANN QUACKENBOS et al., Plaintiffs in Error, v.
EDWARD M. M. CLARKE, Defendant in Error.

ERROR TO MORGAN.

SEE the preceding case for a statement of this. These cases are brought to this court upon the same decree pronounced in the Circuit Court, but by the different parties.

BREESE, J. This case is precisely similar in all respects to the case of Clarke v. Quackenbos and others, decided on appeal. The plaintiffs here, who were complainants below, not satisfied with the decree, bring the case here by writ of error, and assign as the only error in the decree, that the court did not allow them interest on the amount decreed to be paid to them for a reasonable period, for the investment of, or accounting for the moneys, after they came to the hands of the defendant.

As we have found in the principal case that there was no trust of these moneys, the defendant could have abused none. As we could not conceive, from the evidence, that the mother of these plaintiff's ever intended or wished that they should enjoy any portion of her estate, but had bestowed the whole of it upon the defendant, endeared to her by the strongest ties of love and affection, and who had, on all occasions, exhibited to her the greatest filial regard, and had extended to her at all times the kindest offices, we have been disposed to give the most liberal interpretation to what the donor and donee have said and done, in order to effectuate the manifest intention of the donor. As we have said in that case, that whilst, for the maintenance and enjoyment of the mother, by virtue of the arrangement between her and the defendant,

Rives v. Kumler.

she had the same kind of interest in any surplus that might remain after purchasing and furnishing a house for her residence, that she had in such residence, still, such surplus, like the house and furniture, was the property of the appellant, and could, in no event, go to the plaintiffs without violating the arrangement and thwarting the manifest intention of the parties. Further reflection satisfies us that this view in no way conflicts with the testimony in the canse, but is in perfect harmony with it. That part of the decree on which the error has been assigned is, of course, affirmed, the decree itself being reversed, by the decision in the case of Clarke against these plaintiffs on the appeal brought by him.

Decree affirmed.

GEORGE W. RIVES, Appellant, v. ELIAS KUMLER,

Appellee.

APPEAL FROM EDGAR.

It is not due diligence for the assignee of a note to delay issuing an execution against the maker of the note, for more than two months after obtaining his judgment and without showing some excuse for such delay, he cannot hold the assignor.

An averment that a sheriff's return was signed, is unnecessary; this will be presumed.

In an action upon a promissory note, by the assignee against the assignor, the defendant filed a demurrer to the declaration, which was overruled, and he elected to stand by it. It was competent for the clerk to assess the damages. It is error to award the plaintiff greater damages than he claims in his declaration.

THE opinion of the Court contains a full statement of the

case.

James A. Eads, for Appellant.

THOMAS C. W. SALE, for Appellee.

BREESE, J. This is an action of assumpsit, brought by the assignee against the assignor of a promissory note. The declaration averred the execution of a note by one Thornton to Rives, and by him assigned to the plaintiff below. That the note matured July 10, 1859, and judgment was obtained against the maker, for the amount of the note, at the October term, of that year, of the Circuit Court of Edgar county, where the maker resided, and that such term was the first

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