Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-08-10

WHiTEHOUSe vs.. BOLSTER.
Decision Of Law Court Sustaining The Verdict
Tor the Plaintiff

/ Clerk of Court Choate has receive,
the decision of the law court in IN,
kenncbec county case of Seth q
Whitehouse VS.. ID. p. Bolster and trus.
tees. that was tried at the Octobe,
term. 1900. OF the supreme court.
The verdict of the jury was in fayo,
IF the plaintiff and the law court has
sustained the verdict Leslie c. Cor.
nish and Norman l.. Bassett were
| counsel for the plaintiff and Heath G
Andrews and A. NJ. Goddard for the
defendant
The rescript OF the court is as fol-
lows:
Middle district. Kennebec county.
Whitehouse KS. Bolster and Trustees
ReScript. by Savage, j.
In legal contemplation. a surety on a
bond becomes the creditor OF his CO.
surety at the time he signs the bond
Exceptions to an instruction which
removes a material question of fact
from the consideration of the Jury will
be sustained if there was any evidence
or legitimate differences from the evil
denCe. that tended to support the con-
tention Of the excepting party. On the
other hand. if there was no evidence
from which a jury would he warranted
in finding the fact in question the
instruction will be regarded as imma
telal and harmless.
Although the evidence is undisputed,
Yet if different legitimate differences
may be drawn from it. it presents a
question of fact for the jury
When testator or ancestor makes
kn0n to his devisee or heir his desire
TShhis property shall be disposed of
IseHrticular manner. and that he re-
as s0son the latter to carry his de-
with 20 effect. and the devisee or heir
urda Ards or does acts calculated to
-tdusc Afd which he knows do in fact
cause the ,testator or ancestor to be-
lieve that ne fully assents thereto. and
when in consequence thereof the tes-
tator or ancestor makes or omitS to
make a will of such particular dispo-
sition Of his property in his lifetime as
will carry out his desire, a parol trust
is created.
When it is sought to uphold such a
trust. it must appear that the descend
ant relied upon the promise of the heir
or dcviset. as an effective arrangement
for the future disposition of his prop
eity.
The court is of opinion that the
only inference that can properly DC
drawn from the testimony in this case,
the only Inference which jury would
be warranted in drawing. is that the
dcccdent intended in her lifetime 10
make some disposition of her estate
70! her mothers benefit and that she
was prevented. not by her father
assent to her proposed disposition ana
her reliance upon that assent, but by
hor own sudden Illness and consequent
ina bility to carry out her purpose. the
presiding justice was warranted there
fore in Withholding the question of the
existence of a trust from the 'onsid :
GRAFTON of the jury.
The definition Of fraud is "A leSal
question, its existence is a question Oh
fact.
To invalida to u voluntary conveyance
a fraudulent intent must be sho" !"
and it is shown when it appears that
de btor makes a gift of such an ahioui''
or under such circumstances. tah'iis
irto account all existing conditions a>
must nccessar ly hinder. delay OF ue
fr,.ud his creditors. In such cases 'he
donor intends to defraud in legal 'o'-
templa ton. sbecause he delipera.e'S
Intentionally does an act when 49,
hinder. delay or defraud his cred''''
ard which. as things are at the ''',1
he must see. if he stops to THINK ~
have that effect.
Ii at the time Noluntar! ''i''
ance is made, taking Into consideratio,
the value of the property trahsie' 'u
the amount of the debtors prop"i -
eft with which to satisfy lis inheote''
ness in comparison with the amount y
/ his indebtedness. the ira nster M
| necessarily operate sosassto hihde''
Law or defrauG creditors. then the r'''
vevance is fraudulent and av"ia''''.
When fraudulent convcyah
thus defined has been proved Is 'oN'
ton Of fact for the jury.f
Held that that question W"
Withdrawn from the rons'd"r2t''" =
the Jury by the instructions co:hPi' ''ie'
, Of 3.
Motion and exceptions overru' ~
Received Aug. Z. 1901.