After a careful consideration of the evidence in this case, and of all the facts and circumstances disclosed upon the trial, I am of the opinion that the plaintiff should be relieved from the settlement she made, in the year 1871, and that the deed of trust should be set aside.
No inflexible rule can be formulated as to what state of facts would in all cases justify a court in setting aside, upon the application of the settler, a voluntary settlement. Each case must needs stand and be determined by itself, according to what is just and right.
Adjudicated cases, of which there are a large number, bear upon the general subject, and should be followed, when in substance, the same facts and circumstances occur. But it rarely happens that two cases are alike, or that any one “ has a brother.”
The judgment and conscience of the court, under the rules of equity, and the decisions, must, in the end, dispose of each case by itself.
The plaintiff testifies that she did not understand the transaction, which she now asks the court to set
aside, as it in the end expressed itself. She never intended to denude herself absolutely of the control of the property covered by the trust deed ; and that, had she understood the character of the deed, and that it was irrevocable, she would not haye executed it; that its character in this regard, and otherwise, was not explained to or known by her. She wishes, herself, to control the property, and make such present and future disposition of it, as she chooses. Such desire is natural, and is not unreasonable on the part of the plaintiff, who. is of mature years, ap*3parently well disciplined, and is not now wholly inexperienced in the management of property, of which she owns and controls a not inconsiderable amount. She claims to have been unduly hastened to the execution of the trust deed, and to tie up her property, the amount or situation of which she did not know, and by an instrument, the true character and object of which, she did not at the time comprehend. I think that the evidence sustains her claim, and makes out a case for relief in a court of equity.
A glance at the situation, and at some of the facts and circumstances, I feel quite sure, will reconcile this conclusion with what is in itself just and proper, and will be found to be in harmony with what has been generally adjudicated in such cases.
' The mother of the plaintiff died on Christmas day, 1870. The property in question, came to the plaintiff, through an unqualified and unfettered bequest contained in her mother’s will. The consent to the execution of a deed of trust by the plaintiff, as is claimed by and on the behalf of the brother-in-law of the plaintiff, and who was the trustee named in the instrument, was obtained the day succeeding the funeral of the mother, when the will was opened, and the forms of deeds of trust were first handed to her. The deed was executed by the plaintiff, within a few days thereafter.
Accompanying the will, was found a letter, signed by the mother of the plaintiff, requesting the plaintiff to put her share of the property in trust, and a form of a deed was enclosed. With regard to both these letters, and the form of a deed of trust, it is to be observed that they were prepared ten years before.
What might have seemed proper to be advised by the plaintiff’s mother, ten years before, would not be so, necessarily, ten years later, when the legatee had *4gained knowledge, experience and fixedness- of character, which time and opportunity afforded.
It is scarcely necessary to say that neither the letter nor deed of trust, formed any part of, and could not modify or change the testamentary disposition which was absolute.
A trust cannot in that way be created on a will. In fact the plaintiff’s mother was prohibited by her father’s will,—under which she held the property for her children, in such proportions as she might appoint,— from impressing a trust upon it. What she gave she was bound to give in absolute terms, as she did.
Yet I am persuaded that the letter of her mother, and the manner in which it was presented, and the attendant' circumstances, had their effect upon the mind of the plaintiff, and fettered her will.
No time seems to have been lost in hastening the conclusion. Counsel was present, who had been invited by the brother-in-law, as he says, to be present at the opening of the will, and to give needed advice. And in one -interview, the day after the funeral, the trust deed first presented, and changed on the instant, in á very important particular, at the suggestion of the counsel, and according to his idea, is claimed to have been understood and assented to by the plaintiff, and her signature to an engrossed copy, so soon as it could be prepared with the alterations included, which had not been read by her, was obtained. The occasion for presenting and consummating this transaction, was in a true sense, inopportune in so far as the plaintiff was concerned. The plaintiff had been in attendance upon her sick mother, for some time before her death, and had sat up with her night after night, ministering to. her wants, and was in grief at her recent death, and was in no condition of body or mind, to give a proper consideration to a subject of that importance, or at that moment to give a clear and satisfactory assent - to *5placing the property, the amount of which she did not know, under the obligations of an irrevocable settlement.
The deed cannot be said to have been her voluntary and free act. It was no suggestion of the plaintiff. By this arrangement, the plaintiff has never been allowed the satisfaction of enjoying the full possession for any length of time, of the property, which came to her in pursuance of an appointment made under the. provisions of her grandfather’s will; for upon the instant that she was advised of the gift, she gave up its possession and control. The haste with which tins settlement was reached, was neither considerate nor wise, in the condition in which the plaintiff then stood to her mother’s death. In all transactions of this character, to have the approval of a court of equity, time and opportunity for reflection, and calm decision, should have been afforded. ' There was not the least occasion for haste or precipitate action.
With regard to placing a portion of the share devised and bequeathed to the plaintiff, and designed for her. brother, in trust, the circumstances concerning which had been explained to the plaintiff by her father, long before, there was no occasion for delay. But in respect to her own property, the matter was an entire surprise, and before an opportunity to recover from the surprise, had been given, the deed was exe-. cuted. And the plaintiff has, in substance, testified that she supposed, that in order to make an effective trust for her brother, the instrument she signed, with respect to her own property, was necessary. The brother-in-law of the plaintiff, the trustee named in the deed, and under whose eye and with whose active cooperation this settlement was made and executed, and whose family is benefited by its terms and limitations, would have done well had he, after the deed of trust of the property, designed for the plaintiff’s brother, *6had been executed, advised the plaintiff, that there was no occasion for haste, and that she should take time to reflect, after ascertaining the amount and nature of her property, and the character, conditions, and limitations of the proposed settlement.
It is not important to analyze the settlement itself. It is sufficient to state, that by its terms; there has been reserved to the settler only the power of appointment by last will and testament in favor of those related to her by consanguinity, and in default of such appointment, the trustee is to convey the estate to her children or descendants, and to this there was added by the counsel, on the occasion above mentioned, according to'Ms 'notion, that in case plaintiff should leave no children or descendant, the estate was to go by force of the deed, to her heirs at law and next of kin.
The power to appoint is therefore limited to the circle of consanguinity—no provision can be made for a husband, in the event that plaintiff should marry ; no gift can be made to satisfy the suggestion of friendship or gratitude to persons outside of those related by blood to the settler of the trust, and no impulse of charitable or benevolent inclinations can be obeyed.
I have alluded above to the adjudicated cases in a general way. To uphold a voluntary settlement of this character, made without consideration, it must appear clearly that the .settler understood the nature and effect of the transaction, and that she was not unduly influenced, and had sufficient “ locus penitentia. ’ ’
I am satisfied from the evidence, that she did not clearly understand that she was making an irrevocable disposition of her property. She, as well as her sister, in feeble heal th, was influenced by the letter of their mother and by the. suggestions , and actions of their brother-in-law, who, with his family, had a direct interest in the execution of the deed, and who chiefly *7supervised or directed the matter, and who asked them “if they did not wish to follow the wishes of their parents who were dead.” The rapidity with which the business was hastened to completion, from the opening of the will, gave no adequate time for reflection, in the condition in which the plaintiff, and her sister was at the time. One of the sisters has testified, “ we were not given sufficient time to think it over, my health was very bad at that time, when I came down to the library. I hardly knew what was said to me, or what I said. I took no interest in it at all.” Nor do I think that the plaintiff had, in any true sense, as was proper that she should have had, independent counsel. By this, no reflection is intended to be made upon the learned and honorable gentleman, who was present and made the changes in, or additions to the deed, and who directed the preparation of the engrossed copy for signature.
He was summoned to be present at the opening of the will, he knew nothing, nor did the plaintiff, of the trust deed, until the will was opened. And yet he may have supposed that the plaintiff knew that a deed of that character would be found with the will. He saw the plaintiff upon the subject but on this one occasion ; his recollection of what occurred is not entirely clear, but it does not appear that he explained to her the irrevocable nature of the transaction. That should have been done to justify the court in upholding this instruments
In the English cases, the effect of the absence of a power of revocation in voluntary settlements has been much discussed, some of the judges attaching much more significance and importance to such omissions, than others.
In Toker v. Toker, 3 De G.J.& S. 487, the lord Chanceller further said, “ that the absence of the power of revocation is a circumstance to be taken into account, *8and is of more or less weight according to the circumstances of each case.”
.. In this State the simple absence from the deed of a power of revocation, would not be regarded as of so serious moment, as its insertion might defeat the object of the settlement.
In Henry v. Armstrong, 44 L.T.R. 918 (1881), Kay, J., held, that the absence of a power of revocation, was no ground for setting aside the deed, under the circumstances of that case. The settlement there, was made by a man in favor of his wife and children, and the court held that a power of revocation would have been inconsistent with the object of the deed. But the difficulty in this case is, that the settler did not understand the nature and effect of the settlement, nor was it explained to her. Such explanation is necessary in all cases, especially when the settlement is by a young woman inexperienced in business affairs.
Upon the general subject see Perry on Trusts (vol. 1, § 104, pp. 96-100); Everitt v. Everitt (L. R. 10 Eq. 405); Wollasten v. Tribe (L. R. 9 Eq. 44) ; Coutts v. Acworth (8 Eq. 558); Prideaux v. Londsdale (1 De G. J. & S. 433) ; Hall v. Hall (L. R. 14 Eq. 365, reversed on the facts, 8 Chy. Ap. 430); Phillips v. Mullings (L. R. 7 Chy. Ap. 244); France’s Appeal (75 Pa. St. 220); Conkling v. Davis, N. Y. special term, May, 1878, Van Brunt, J.
In this case, I think that the plaintiff should be reinstated in the full and exclusive dominion of her property, subject to be disposed of by her as she may judge best, and if in the end, those intended to be benefited ultimately by the terms of the settlement, shall receive the same, by the free gift of the plaintiff, it will be all the more appreciated; but, if not, they can have no just reason to complain, as the right to dispose of property, as the owner may de*9termine, is an incident to its ownership. The tie of hlood, however, never fails to assert its claims, and is rarely overlooked when one comes to make a last will and testament. The result is that the deed of settlement must be set aside and canceled.*
*11Note on Cancellation oe Settlements.
Note.—For the general rule supporting voluntary conveyances, in the absence of evidence of incapacity, fraud, mistake, or undue influence, see Viney v. Abbott, 109 Mass. 301; Willemin v. Dunn, Ill., Feb. 1880, 9 Reporter, 509. For the strongest recent case allowing cancellation on parol evidence see Earle v. Rice, 111 Mass. 17.
The fact that a woman in making a voluntary settlement acts without or has no independent legal advice, is auxiliary ground for setting aside the settlement (Rhodes v. Bates, 1 L. R. Ch. 252; 12 Jur. N. S. 178; 35 L. J. Chan. 267; Baker v. Loader, 21 Weekly R. 167; Matter of Sayer, 13 L. T. N. S. 778). But is not alone, as matter of law, enough, Mitchell v. Homfray, Eng. Ct. of App., Mar. 1882.
Nor should a voluntary settlement by a feme sole be set aside after the marriage, on the mere ground that the trustee was her confidential adviser, for where independence exists, this is no ground, 1 Story's Eq. Jur. § 320; Falk v. Turner, 101 Mass. 494.
Nor can a grantor ordinarily revoke a trust deed merely because when it was executed, it was supposed that such deed would be revocable, Fellows v. Heermans, 4 Lans. 230 ; Browne v. Murdock, 12 Abb. N. C. 360, 369.
*12Where .a widow, immediately after her husband’s .death, was induced to make a contract for the sale of his property, Held, that she was not thereby concluded, as if by an intelligent and effective election to take against his will (Elbert v. O’Neil, Pittsb. L. J., Dec. 12, 1883, p. 168).
The fact that the grant was obtained by a person standing in a confidential relation throws the burden upon him to show fairness. See Lansing v. Russell, 3 Barb. Ch. 325 ; and cases in 22 Alb. L. J. 264.
As to conveyances in consideration of promises to support, see Bogie v. Bogie, 41 Wisc. 209, and 7 Abb. N. C. 58, note.
As to undue influence by a third person, see Miller v. Simmonds, Mo., Apr. 1881 ; abstr. 11 Cent. L. J. 353 ; Ranken v. Patton, 65 Mo. 378.
As to the rights of third persons who have acquired interests in good faith, see Bainbrigge v. Browne, 44 L. T. N. S. 705; S. C., 29 Weekly R. 782; 50 L. J. Ch. 522.
A false representation as to a material fact will set aside a voluntary settlement (Rawlins v. Wickham, 3 De G. & J. 304).
Where the deed purports to be for a valuable consideration, and the grantee attempts to support it as a gift, the onus of proving it is a gift, is thrown on the grantee, and clear evidence will be required to support the gift (Coultwas v. Swan, 19 Weekly R. 485).
As to gifts to persons standing in a relation of special confidence to donor, see Nottidgo v. Prince, 2 Giff. 246 ; 6 Jur. N. S. 1066 ; 29 L. J. Chan. 857; see also 22 Alb. L. J. 264; and 13 Abb. N. C. 210, 318, note.
As to joinder of parties, defendant, see House v. Mullen, 22 Wall. 43; Mathias v. Yetts, 46 L. T. N. S. 497.