John R. Kilbee and William D. Barnes, Appellants, vs. Marie E. Myrick, Appellee, 12 Fla. 419

WESTOOTT, J., delivered the opinion of the court: This bill is brought by Marie E. Myrick, the wife of John IX Myrick, a lunatic, against John R. Kilbee and W. D. Barnes,, his agent. It alleges that her husband, being of unsound mind and incapable of contracting at the time, executed on the Sith of October-, A. D. 1866, deeds of conveyance covering his entire estate to John R. Kilbee,upon certain trusts therein specified; that W. I).

Barnes is the agent of the trustee now in possession of the property conveyed by the deed, which is located in Florida, in Jackson county, in part, while a portion of the property embraced in the deed is situated in the State of Virginia. The bill alleges- further, that she was induced to relinquish her dower interest in the property by misrepresentation of the trustee, Kilbee.

The prayer of the bill is that the deeds may be declared void and inoperative, that an account may he taken of the rents and profits of the property in the hands of the trustee, that a receiver may be appointed to take possession of the property, that a guardian of the person and estate of the lunatic may1- be appointed, and that a proper allowance may be made for the support and maintenance of John D. Myrick, and of the esomplainant, stating that she is in destitute circumstances.

It is necessary to state that the record discloses that a commission of lunacy had been issued, and the husband had been adjudged a lunatic subsequent to the execution of the deeds and before bill filed. Upon filing the hill the chancellor .passed an order directing the master to “ make a report as to what amount will he proper and suitable as a temporary allowance for the support and maintenance of the wife, and the neces.sary costs of suit, counsel fees, &e., until tlie caiise shall be brought to a hearing.” The defendants move to vacate this order shortly after it "is made, and the motion is denied.

Subsequently the master .reports sixty dollars per month as a proper allowance for the wife, and five hundred dollars as a proper amount for costs of litigation. This report is excepted to on various grounds by defendants, which it is unnecessary to mention.

After argument the chancellor overruled the exceptions, confirmed the report, and ^passed an order directing the defendants to pay to the master for the use of complainant “ the sum of sixty dollars per month for maintenance, and the sum of five hundred dollars for costs of litigation and counsel fees.” An appeal is now prosecuted here by the defendants, and they pray a reversal of the decrees and orders made by the • chancellor upon several grounds.

As the hill alleges that the whole estate of the lunatic was embraced in these deeds, and consequently there is nothing-now in the hands of any committee or guardian of the lunatic, if, indeed, there ever was any committee, which.is not disclosed -by the bill, we deem it unnecessary to pass upon any of the .grounds upon which the reversal is prayed except that which raises the question as to allowance, and whether the wife of a lunatic can set aside a conveyance of her husband made before . a commission of lunacy, on the ground of his incapacity to contract arising from imsoundness of mind, by bill filed against the 'trustee named in the deed of the husband and his agent in pos- . session of the property.

A person being found a lunatic upon commission and inquiry a committee or guardian should be appointed to take possession .of his estate and manage it under the direction of the chancellor, who has plenary powers in matters of this character. In this case the bill does not disclose that there ever was appointed a guardian or committee. If the lunatic has, anterior to these proceedings, but while of unsound mind, entered into a contract which should be set aside on that ground, the lunatic hy his guardian must under the-' statute of this State institute the proceeding.

The wife may be allowed a reasonable allowance from the-estate, nor is her right limited to any mere legal demand, and a chancellor upon proper proceedings would allow, it' if there was any estate to allow it from. In divorce cases the chan- - cellor will tax even the faculties of the husband, but the lunatic • is without anything except estate.

If in a case such as this is represented to be by tbe bill, the - guardian should decline to institute any proceeding to set aside the deeds of the lunatic, we can see, as present advised, no objection to tbe wife bringing the matter to the attention of the - chancellor by petition praying that the guardian might be controlled to this end, and the chancellor would then exercise his; discretion.

If a lunatic, husband enters into a contract divesting himself of his entire estate, and leaving Ms wife and children without support and helpless, a court of chancery will not fail to be active when appealed to, and in a proper case will control the - committee or guardian. There is no doubt a remedy, but that remedy is not by bill brought by the loife against the grantee of' the husband in possession. Upon the lunacy of the husband she does not become Ms legal representative like an administrator in case of his death.

The lunacy of the husband does not increase the marital obligation of the husband to support the wife in such a way as-to invest her with Ms rights and clothe her with power to institute suits to set aside his deeds, and we see no more authority for the wife bringing a bill to set aside tlie deed of the husband on the ground of Ms insanity at the date of its execution, than we do for the wife to file a bill to set aside the deed of the husband on any ground which -would avoid it if set up by himself. For instance, fraud in the grantee, in numerous instances illustrated in the books.

The common law doctrine was that no man of full age should be admitted to stultify himself, and it has been insisted that a court of equity could not give relief in the face of the common law rule, and set aside the deed of the lunatic upon his request or that of his committee; a distinction being taken between the lunatic himself and his heirs, executors or administrators after his death, the last being permitted under certain circumstances to avoid his acts after his death upon the ground that he was no?i compos mentis. 1st Story, § 225; but that a court, of equity will now avoid his acts upon proper proceedings, and in a proper case, is settled notwithstanding the common law maxim.

The ground upon which a court, of equity interferes is fraud; every person being deemed guilty, of meditated fraud when he.deals with them with knowledge of their incapacity. Even this rule, however, has its exceptions, as all deeds of persons of unsound mind are not to be set aside necessarily. There can be no doubt, and the proposition is too plain to be questioned, that the wife could have no standing in a court of equity to set aside the deed of her sane husband for fraud, which would enable him to do it, and the same is the rule here. 8 Paige’s Chy. Rpts., 012.

There are other objections urged to the proceedings in the court below, but we deem it unnecessary to refer to them. There is no fund here subject to the order of the court, there is no guardian or committee, and we do not see how the defendants can be directed to make payments when they allege that thev are in advance to the estate, and the contrary is not made to appear, and besides, no prima facie case is here made to justify the allowance for counsel fees. It is ordered, adjudged, and decreed that the decree of the chancellor making a temporary allowance to Marie E.

Myriek, and allowing court expenses in this case, is set aside and reversed, and that the cause be remanded for such proceedings as are conformable to this opinion and the principles of equity.