The last will and testament of Mrs. Julia McRae called a second codicil, is a plain, direct and well written instrument, which makes a reasonable disposition of her estate under the power set out in the marriage settlement without verbiage or circumlocution.
By it the legacy of $6,000 given absolutely to her husband is confirmed, and all the rest of her estate is given to her husband for life, and then to her children and their heirs.
The life estate having fallen in, her children now claim all the rest of the estate, save the $6,000. We concur with his Honor in the opinion that they are so entitled. The will of the 11th of February, 1846, presents no difficulty, for the last will not only makes it by implication, but contains an express clause "revoking all and every part of former wills as in consistent herewith," showing that the good lady had become aware that she had fallen into some confusion and inconsistency in regard to the prior disposition of her estate.
The only difficulty is presented by the deed of McRae and wife to John Burgwyn the 26th of April, 1842. This *Page 105 deed purports to be made in pursuance of the power given in the marriage settlement and in execution of that power; besides the life estate which the marriage settlement allows to the husband, this deed in case he survives his wife gives to him an absolute estate in one-half of the whole fund, and an absolute estate in the other half "should the said Julia not see fit to dispose of it to any other person or persons by writing in the nature of a will."
We are of the opinion that this deed, so far as it seeks to "modify" and change the provisions of the marriage settlement in favor of the husband and to give to him an absolute estate in the whole or in one-half of the principal of the fund, is inoperative and of no effect.
We put our opinion on two grounds. 1. The condition of the parties and their surroundings, and the words of the marriage settlement show that the purpose was to allow the wife in case there should be no issue of the marriage to appoint in favor of her brothers and sister or any of them, which right in respect to her father is expressly provided for by the deed of marriage settlement, the husband being content with the unrestricted right to dispose of "the rents, issues and profits of the whole estate during their joint lives, and during his own life if he survived. Upon this general view it would seem that the husband was not contemplated as an object of the power of appointment under the deed of marriage settlement.
The peculiar wording of the instrument adds force to this conclusion, "and if it shall so happen that the said Cameron shall out live the said Julia, then, from and after the death of said Cameron for such person or persons as the said Julia may by writing in the nature of a will appoint." The idea that the wife should appoint the husband as a person to take the estate from and after the death of the husband involves an absurdity, and shows that the husband was not in the contemplation of the parties to be an object *Page 106 of the power of appointment, and the purpose was to enable the wife on failure of issue to provide for her brothers and sister, it being assumed that the husband was amply provided for by his right to all of the rents and profits free of account during his lifetime.
The other clause in the deed of settlement adds force to this view of its construction "or the said Julia may execute this power of appointment by deed, in that case having the assent of the said Cameron;" if the objects of the appointment were to be some person or persons other than the husband, this was a reasonable and prudent precaution in restraint of an excessive liberality on her part towards the members of her own family, but if it was intended to include the husband as one of the objects of the power then this veto power of the husband involves another absurdity, to wit: that of enabling him to prevent the exercise of the power of appointing by deed unless the whole estate or one-half of it should be given to him as the price of his assent.
2. This deed falls within the principle announced in Lee v. Pearce,68 N.C. 76, that in certain fiduciary relations if there be dealing between the parties on the complaint of the party under the influence of the other, the relation raises a presumption of fraud which annuls the act unless such presumption be rebutted. "The doctrine rests on the idea not that there is fraud, but that there may be fraud, and gives an artificial effect to the relation beyond its natural tendency to produce belief. The doctrine was adopted from motives of public policy to prevent fraud as well as to redress it, and to discourage all dealing between parties standing in these fiduciary relations." On this policy femes covert are incapacitated from devising land under the statute 32, Henry 8th. The danger of influence by the husband to produce a devise in his favor.
In the case of Lee v. Pearce, the instances stated are trustee andcestui que trust, attorney and client, and guardian *Page 107 and ward, but the principle applies with greater force when, as here, a fiduciary relation exists between husband and wife under a deed of marriage settlement, and in some two years after the marriage the wife in executing a power in favor of her father which was provided for in the deed of settlement is likewise inclined to modify and change the provisions of the deed of settlement so as to give the husband an absolute title to one-half of her estate in the event of his being the survivor and a contingent title to the other half. There is nothing to rebut this implication of law; on the contrary, there are circumstances which it is not necessary to set out tending to indicate it. The position taken by the counsel of the defendants on the argument that the question growing out of the fiduciary relation of the parties is not presented by the pleadings is untenable. This is "a case agreed;" all of the facts are set out, and the matters of legal inference left to be made by the Court. It was not necessary in "a case agreed" for the plaintiffs to make a direct charge of fraud against their father or to aver that he contrived by the deed to John Burgwyn the 26th of April, 1842, if allowed to take effect to pass to his second wife and her children the larger part of the estate of his first wife, who was the mother of the plaintiffs.
No error.
PER CURIAM. Judgment affirmed. *Page 108