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Bishop v. Bishop

decided: May 1, 1958.


Author: Maris

Before MARIS, MAGRUDER and STALEY, Circuit Judges.

MARIS, Circuit Judge.

The defendant, Ethel May Bishop, widow of Cory Bishop and the administratrix c.t.a. of his estate, appeals from the judgment of the District Court of the Virgin Islands cancelling a deed executed by Cory Bishop and the plaintiff, Mildred T. Bishop, which conveyed to George T. Kelly III, Trustee, their interests in 55 acres of real property located on the island of St. John and known as Catherineberg or Hammerfarm. To understand the nature of the questions which the appeal presents an account of the relations between the parties and the circumstances under which the controversy arose is necessary. From the uncontradicted evidence and the admissions in the pleadings the following facts appear:

Cornelius Comstock Below, who later called himself Cory Bishop, in 1925 married Ethel May Pressey, sometimes later known as Ethel May Bishop. A daughter, Rosemary, was born of the marriage. Cory deserted his wife and child in 1939. The latter were in Florida at the time and it appears that Cory sent them a letter from New York saying that he had failed them, that he was sorry, and enclosing a receipt for paid-up insurance. Thereafter Ethel May tried unsuccessfully to locate him and later was told that he was dead.

The plaintiff, Mildred T. Bishop, met Cory in New York City in 1938. She knew that he was a married man. Later he told her that his wife had left for Florida and that they were divorced. Cory then assumed the name "Cory Bishop" and Mildred testified that they were married by a justice of the peace in New York State in October, 1939. On July 19, 1940, they arrived in St. Thomas and opened a joint checking account under the names of Cory Bishop and Mildred T. Bishop in the Virgin Islands National Bank. Into their joint account were deposited their earnings, together with $1200 which Mildred received each year from her divorced husband, Wallace Bishop. On May 18, 1945, they purchased the property on the island of St. John known as Catherineberg or Hammerfarm. Four parcels of this property were sold by them during the ensuing years and about 55 acres were retained. They improved this land, purchased equipment and farmed it. Mildred took care of the gathering and marketing of the farm produce and the income therefrom was deposited into their joint account.

In 1953 Cory organized a corporation, Antilles Enterprises, Inc., and Mildred during this period worked in the office with him at 8 Crystal Gade in St. Thomas. 800 to 900 acres of land belonging to them were conveyed to the corporation by deeds in which Mildred waived any dower rights. In 1954 and 1955 it appears that negotiations were in progress from the results of which Cory and his associates in the corporation hoped to realize very large sums of money.

In the fall of 1954 Cory and Mildred had personal difficulties and became estranged. They separated on December 25, 1954. Negotiations were then started by their counsel to effect an agreement for separation and support for Mildred. During the months of January and February, 1955, Cory paid Mildred $500 a month for her support. No formal agreement was arrived at, however.

In the meantime Ethel May had remarried in 1949, had been divorced three months later, and in 1952 had remarried again. After Cory's father died, his family in 1954 started a search for Cory and it was discovered that he was alive and residing in the Virgin Islands. Ethel May learned of this and gave the information to her attorney, George T. Kelly III, Esq., of Orlando, Florida. Mr. Kelly, under date of March 2, 1955, wrote to William W. Bailey, Esq., an attorney in St. Thomas, inquiring about Cornelius Comstock Below. Mr. Bailey answered, under date of March 11th, saying that he was unable to locate Cornelius, that the building at 8 Crystal Gade, the address given in Mr. Kelly's letter at which Cornelius was thought to reside, was occupied by a client of Mr. Bailey's law firm, and he asked for more helpful information.On March 14th Mr. Kelly advised Mr. Bailey that Cornelius was using the name Cory Bishop, to which Mr. Bailey replied on March 17th stating in part:

"Mr. Corey Bishop has been known to this firm for many years and is presently a valued client of this office. As a matter of fact, the day that I was investigating the whereabouts of Cornelius Comstock Below, prior to my letter of March 11th, I had occasion to talk with Mr. Corey Bishop who has an office and lives at No. 8 Crystal Gade and asked him if he knew a Cornelius Comstock Below, which he denied. Yesterday, Mr. Corey Bishop left for the States on a ten-day business trip, but it may be that my innocent conversation with him, which I have related above, may cause him to contact Mrs. June*fn1 Below, and we would appreciate being advised of this fact."

Cory did contact Ethel May in Florida on April 8, 1955. She testified that at this time he professed his love for her, asked for an opportunity to make up for the past sixteen years, and hoped that she would come to live with him. Shortly thereafter she divorced the man whom she had married in 1952. Cory said he would give her the 55 acres of land he owned with Mildred in the Virgin Islands, which Mildred would convey with him, that he held stock in Antilles Enterprises on which he expected to realize half a million dollars of which he would give Ethel May one-half, and that he had settled $5,000 on Mildred who had left St. Thomas for the States. He explained that he and Mildred had conveyed land prior to March 1, 1955 in the Virgin Islands and that Ethel May's waiver of her dower rights in that land was required*fn2 and he asked her to sign certain documents which he had brought with him, using the name "Ethel May Bishop".She did not sign any waivers at that time, however, but requested her attorney, Mr. Kelly, to go to the Virgin Islands to investigate the situation. On April 14th, when Mr. Kelly was leaving Orlando for the Virgin Islands, Ethel May executed a power of attorney to him in which she gave him full power to act on her behalf, to transact every kind of business for her, to release any claim of dower or other claims of any kind she might have, to enter into agreements of any kind with her husband, Cory Bishop, and she granted Mr. Kelly full power and authority to "hold stock, real property or other property in his own name". To this document she affixed the signatures "Ethel May Below" and "Ethel May Bishop".

Mr. Kelly, Cory and Mr. Bailey, Cory's attorney, had arranged to meet in St. Thomas on April 15th and they conferred on that day and on the 16th. In the course of these conferences Mr. Bailey prepared the deed which Mildred now seeks to have set aside as invalid. That deed purported to convey the remaining 55 acres of the property known as Catherineberg or Hammerfarm, which Cory and Mildred owned in St. John, to Mr. Kelly as Trustee but did not declare the terms of trust or name the beneficiaries of the trust. Cory took this deed to Mildred in order to obtain her signature to it. As to what took place at this meeting between Cory and herself Mildred testified:

"He came to my apartment on the day of April 16th in a very terrible state. He was crying; he was terrible careless; he hit his head against the wall; he told me that I had apparently never been married to him. His wife had turned up. He was going to be in a terrible difficulty. He referred to the word 'blackmail'. He told me the only way to help him and to protect my interest would be for me to place it in trust - from what I understand, a trust is something that keeps things from people. I had no reason at that time to distrust Corey. He was in distress, and I felt that it was a terrible thing to have two wives, and I trusted him. * * *

"* * * he said that it was the only possible way to place this in trust so that his wife couldn't take my part of it.

"* * * Corey came to me in a very, very upset state. He cried. His eyes were already red. He was most hysterical and he told me that he had - you know, not told me the truth; that the defendant had not divorced him, and that apparently I was never his wife. He said - you know - most awful things could be done to him, and so forth. Naturally, my interest was to help Corey. It always has been. He explained to me it was a trust in which Catherineberg, the farm was put. My interest, which I always had with him, my share of the interest which we had together in Catherineberg would then be protected, and that the defendant could not secure my property, and that was a trust that sounded logical to me. I saw a man whom I never met or heard the name of before, Mr. George Kelly, listed as Trustee. I'm not an attorney. I took it for granted. I always trusted Corey. I saw no reason not to - that this awful thing had befallen him. The first thing that he would protect me, and for my protection I would sign it. * * *

"* * * It just merely says that Mr. Kelly - it seems to me, would hold in trust this farm for Corey and myself.

"I hadn't any idea who Mr. Kelly was. I found out the next day that Mr. Kelly was the defendant's attorney at the time -

"He had already told me that this was a dependable person, and in which we would put Catherineberg in trust, so that my share of it could be protected for me and would ...

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