Benedict v. Warehime

• Decision Date: 30 October 1946
• Docket Number: 3.
• Citation: 49 A.2d 444,187 Md. 150
• Parties: BENEDICT et al. v. WAREHIME.
• Court: Maryland Court of Appeals

49 A.2d 444

187 Md. 150

BENEDICT et al. v. WAREHIME.

No. 3.

Court of Appeals of Maryland

October 30, 1946

Appeal from Circuit Court, Carroll County; James Clark, Judge.

Action by Virginia (Jennie) Benedict and another against Frank W Warehime attacking the validity of transfers of bank accounts made by John W. A. Warehime, deceased, to defendant. From an order granting defendant's motion for directed verdict plaintiffs appeal.

Affirmed.

Theodore F. Brown, of Westminster, for appellants.

F. Neal Parke, of Westminster, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

This case involves the validity of the transfers of five bank accounts made by the late John W. A. Warehime, of Carroll County, during his lifetime. He died a childless widower on April 1, 1943, at the age of 81 or 82 years. On January 20 1943, he transferred an account in the Westminster Savings Bank of $1137.46, and an account in the First National Bank of Westminster of $3355.89, and an account in the Farmers and Mechanics National Bank of Westminster of $2523.62, all of which had been in his name, to the usual trust form for himself and his brother, Frank W. Warehime, joint owners, subject to the order of either, the balance at the death of either to belong to the survivor. The account at the First National Bank seems to have been a checking account. The others were savings accounts. On February 10, 1943, Mr. Warehime similarly transferred his savings account in the Birnie Trust Company at Taneytown amounting to $2321.98. He also had an account in the Union Mills Savings Bank of $2563.96, but this remained in his individual name. He left a will in which his brother, Frank W. Warehime and A. Earl Shipley were named as the executors. By the terms of this will he gave to his brother, Frank, and to his sister, Virginia (called Jennie) Benedict, one of the appellants, each the sum of $3000, which he stated represented an equal division of the sum he inherited from his parents. He then gave to Carrie V. Koontz, a sister of his deceased wife, 40 shares of stock in the Farmers Fertilizer and Feed Company. He then stated that he considered the balance of his estate was accumulated by his wife and himself during the period of their joint lives, and he directed his executors to dispose of his property and after payment of the costs and expenses of his estate to distribute the proceeds $1000 to Krider's Reformed Church, one half of the balance then remaining to be divided equally between the brothers and sisters of his deceased wife, who might be living at the time of his death and the other one half of the balance to be divided equally between his brother and his sister, Jennie. He also stated he was paying his sister-in-law, Carrie V. Koontz, for her services as his housekeeper, and she should therefore have no charge against his estate for any services rendered for him. This will had been made on January 3, 1942, which was about five months after his wife died.

The executors received letters testamentary from the Orphans' Court of Carroll County and reported the four accounts above mentioned as having been validly transferred to and as being the absolute property of Frank W. Warehime, and he paid the collateral taxes imposed on such transfers. They subsequently stated an administration account, and did not include these deposits among the assets of their testator's estate. After all this had been done and on July 25, 1944, Virginia Benedict (called Jennie in the will), sister of Mr. Warehime, and Oliver M. Koontz, brother of Mrs. Warehime, filed their petition asking that the four transferred deposits be included as a part of the estate. This petition was answered by Frank W. Warehime as executor and individually and two issues were sent by the Orphans' Court to the Circuit Court for Carroll County for trial. These issues were, first, whether Frank Warehime concealed any part of the estate of John W. A. Warehime, and, second, whether Frank Warehime by misrepresentation, deceit or fraud or by the use of duress, or by undue influence, obtained and converted to his own use any of the sums on deposit in each of the four banks in which the accounts were transferred, as above mentioned. At the trial of the case the jury answered both issues 'yes.' The defendant, Frank W. Warehime, individually and as executor, had moved for a directed verdict. The Court instructed the jury that there was no evidence to prove that the transfers were made as the result of misrepresentation, deceit or fraud, but reserved its decision on the questions of duress and undue influence. The defendant made a motion N.O.V. after the verdict. The Court granted the motion and directed that the issues be answered 'no' instead of 'yes.' From this order of the Court, the appeal comes here.

The testimony relied on by the appellants is, first, that John Warehime told his next-door neighbor, Mr. Arthur, a former Register of Wills of Carroll County, and a man of 88 years of age at the time he testified, that he was thinking of making a will, that he was going to give his sister and brother the money he got from his home, which he had inherited from his father, and the rest of his estate he was going to divide between his family and the family of his deceased wife, because he thought his wife had earned as much of the money as he had. About two weeks later he said he had been thinking it over, and he thought he would give his wife's sister, Carrie, who was taking care of him as his housekeeper, 'a little special.' This witness said also that Mr. Warehime had broken after his wife died, physically and mentally, that six months before he died he was a broken, tottering old man, but that he atended to his business generally. Within six months of his death the witness noticed that Mr. Warehime was getting confused in his mind. He explained this by saying that in talking with him he would get off the subject and would never get back on it again. He also said that he saw him stand and cry several times, but he did not know what it was about. Another witness, this one 77 years of age, who was a first cousin, and who had been a judge of the Orphans' Court of Carroll County, testified that Frank Warehime came over and took John Warehime away in his car two or three times on a Wednesday, in the afternoon, but he didn't know the dates or how often it was. This was corroborated by the wife of this last witness, who said she saw them four or five times on a Wednesday. Carrie V. Koontz, the housekeeper, on Wednesdays went to a sewing society at Krider's Church, and this last testimony was offered to show that the brother took John Warehime away on those days on which Miss Koontz was not at home. The evidence further shows that the two dates on which the transfers were made were both Wednesdays. Miss Koontz testified that Mr. Warehime talked to her in December on a Saturday about his will, and burst out crying. She did not go with him when he made his will. She said he was failing in the last year, having spells and getting confused. She said she was home on the Wednesday afternoon of the 10th of February and saw Frank Warehime come and take John Warehime away. She also said that after they saw him on Wednesdays, he would become nervous and start to cry, and it would take him until the first of the week to get straightened out again. Once when they came back, she heard Frank Warehime say, 'Put Miss Carrie's name on it.' She also said that after John Warehime's death, Frank asked her whether he had a will. She answered 'yes,' and he said, 'who is on it,' and she said 'you and Mr. Shipley.' Frank said he didn't think his brother would put him on it because he drove him around and couldn't get a thing out of him. After the will was read, Frank asked her if she were satisfied, and said the Farmers Fertilizer stock should have been his. About a week after the funeral Frank came to see her and she asked him how his name got on the bank accounts. He said 'Just as sure as God lets me stay on this planet I did not own any bank account.' She said that his name was on the bank books that 'it is no use to lie, he knew better.' He then said 'If he also had the chance to drive around with him and with his wife, whether he wouldn't have taken that chance. Mr. Frank (meaning Frank Essich) would have done that. If Nealey (meaning Mrs. John Warehime) was living.' The appellants made a motion to correct the record as to this statement, so as to clarify it and their version of the testimony is 'Well, if Gust (meaning John Warehime) had died first and Frank Essich had had a chance to haul Nealey around, what would he have done.' The Court refused this motion, but it does not seem to make the alleged statement any stronger from the appellants' point of view. The witness also testified that Calvin E. Bankert, the treasurer of the Union Mills Savings Bank, who fixed John Warehime's income tax told her that Frank's name was on the books. She could not tell when that statement was made. She thought it was the year before John Warehime died. The plaintiffs also called a Mr. Richardson, who bought Mr. Warehime's farm in August 1941, immediately after the death of his wife. He saw him weekly from that time until the time of his death. He said that he was failing, his mental and physical condition were both failing, but there wasn't anything impressive about it, except that he was growing old and that he was a little hard to talk to, and a little deaf.

The treasurer of the Birnie Trust Company, called by the plaintiffs, testified that on Wednesday, the 10th of February, 1943, John Warehime came into his bank, sat down in a chair in the directors' room, said he wanted to...