Berman v. Leckner
| Decision Date | 19 May 1949 |
| Docket Number | 150. |
| Citation | 66 A.2d 392,193 Md. 177 |
| Parties | BERMAN v. LECKNER et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; E. Paul Mason Judge.
Suit by Benjamin L. Berman, administrator of goods not administered of the estate of Boston Fear, deceased, against Mary Fear Leckner and others, for discovery and delivery of personalty allegedly belonging to decedent's estate but wrongfully held by defendants. From the decree, complainant appeals.
Decree affirmed.
Joseph Loeffler, Baltimore, for appellant.
J. Calvin Carney, Baltimore, for Leona Fear Thomas.
No brief and no appearance for other appellees.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, and HENDERSON JJ.
Benjamin L. Berman, administrator d. b. n. of the estate of Boston Fear, deceased, brought this suit in the Circuit Court No. 2 of Baltimore City against Mary Fear Leckner and eight other defendants for discovery and delivery of personal property allegedly belonging to decedent's estate but wrongfully held by defendants.
Decedent who lived for many years in a large home situated at Poplar Hill Road and Elgin Avenue, died on April 11, 1918. He was survived by nine children, six of whom--a married daughter Mary Leckner, and three unmarried daughters, Rosalie (now Welsh), Margaret (now McKenna), and Elizabeth (now Raith), and two sons, George and Herbert--were still living at home. His other three children were Leonora Thomas, Daisy Anderson and Fred. Decedent also had three grandsons, Boston 3d, George and Leo, sons of Boston, Jr., deceased.
The bill of complaint alleged that all of the personal property in the home, including furniture, oil paintings, musical instruments, and other chattels, belonged to decedent at the time of his death, and that the four daughters who lived with him wrongfully divided the property. Three defendants demurred to the bill, and the chancellor sustained the demurrers and dismissed the bill. On April 18, 1947, the decree was reversed by the Court of Appeals. We held that a court of equity may enforce the surrender of chattels which have been obtained tortiously or which are wrongfully held, if they consist of heirlooms, paintings or other works of art which have a sentimental or unique value or have no ready market value. Berman v. Leckner, Md., 52 A.2d 464. After the case was heard on its merits, the chancellor again dismissed the bill, and complainant is now appealing from the second dismissal.
To make a valid gift inter vivos, there must be a clear intention on the part of the donor to transfer title to the property, and also a delivery by the donor and an acceptance by the donee. It is essential to the validity of such a gift that the transfer of both possession and title shall be absolute and shall go into immediate effect. In other words, the donor must intend not only to deliver possession, but also to relinquish the right of dominion. If a gift has reference to a future time when it is to operate as a transfer, it is only a promise without consideration, and cannot be enforced either at law or in equity. Whalen v. Milholland, 89 Md. 199, 201, 43 A. 45, 44 L.R.A. 208; Howard v. Hobbs, 125 Md. 636, 640, 94 A. 318; First National Bank of Cumberland v. Thomas, 151 Md. 241, 250, 134 A. 210, 47 A.L.R. 730; Pomerantz v. Pomerantz, 179 Md. 436, 19 A.2d 713. The intention of the donor, however, need not be expressed in any particular form. It may be manifested by words or acts, or both, or may be inferred from the relation of the parties and the facts and surrounding circumstances of the case.
The first persons to investigate the alleged gift to Mary, Rosalie, Margaret and Elizabeth were their sister, Leonora Thomas, and her husband. They consulted Edward L. Ward, attorney, now deceased, in February, 1919. Ward advised that Margaret informed him that her father during his lifetime had given all of the furniture in the house to Mary, Rosalie, Elizabeth and herself, and that he was certain it 'would not pay the heirs to fight over it.' Quoting Margaret further, the attorney wrote: Despite the attorney's advice, George Fear qualified as administrator of his father's estate on July 25, 1919; and on August 18, 1919, he filed a petition in the Orphans' Court charging that two of his sisters, Mary and Margaret, were concealing assets of the estate. The sisters filed answers denying absolutely that they had concealed any assets, and asserting that they had acquired title to their father's personal property long before he died. The administrator never filed an inventory or took any further action in the matter. Another investigation was made by Mrs. Thomas and others when they consulted Vernon Cook, attorney, concerning the advisability of contesting the title of Mary, Rosalie, Margaret and Elizabeth. After this conference they decided not to take any action.
After the passage of a quarter of a century, the next member of the family to make complaint was Margaret McKenna, one of the four who had divided the property. On April 16, 1944, she complained to the administrator about the way the furniture and other effects had been divided. She rankled over the fact that George, Fred and Herbert were the first to divide the property, taking 'the cream,' while she did not get anything until several weeks later. One of the causes of her dissatisfaction was the fact that she wanted the picture of Queen Anne, but was urged to take Lord Colt. The outgrowth of her letter was that on May 12, 1944, Daisy Anderson, Boston Fear 3d, Herbert C. Fear, son of Herbert R. Fear, deceased, George Fear, individually and as administrator, and Fred Fear filed a petition in the Orphans' Court alleging that Mary Fear Leckner and others possessed various pieces of personal property belonging to the estate of Boston Fear. That proceeding likewise was dropped. George Fear died in November, 1944. In April, 1945, complainant was appointed administrator d. b. n. of the estate, and on May 10, 1946, he filed the instant suit.
At the trial of the case Rosalie Welsh recalled that her father, becoming heavily involved financially, executed a deed of trust for the benefit of creditors, and also pawned his diamonds to pay his taxes and other debts. She testified positively that her father gave all of the property in the home to her and to Mary, Margaret and Elizabeth. She further testified that she and her three sisters decided to keep all of the furniture and other things in the parental home until they obtained their own homes. In February, 1919, while she was living temporarily on the Eastern Shore, she was requested to come to Baltimore to pick out the things she wanted. She said that when she came to the house, both George and Herbert were there. She also called to see her brother Fred, who agreed to keep the pieces she had chosen until her return to Baltimore.
John Leckner, Mary's husband, testified that Mary selected the piano and several other musical instruments and a number of pictures, including a portrait of Queen Anne. He substantiated the story that decedent had pawned his diamonds to pay pressing debts. He testified that the diamonds were afterwards sold for $2,100, of which amount $1,380 was paid to the pawnbroker.
Leonora Thomas testified that all she received from the division of the property was a part of a grandfather's clock. This she said, was sent to her without any solicitation. In later years she paid a total of about $1,500 for the purchase of various things that had once been owned by her father. From Fred she bought two oil paintings for about $85, and two chairs and a statuette. She also bought a table and two vases from a pawn shop for about $35. About 1936 she bought from Rosalie a lot of books for about $100, and a candlelabra for about $25. She swore that she gave Rosalie $1,000 for a statuette, worth only about $200, to help save her home, which was being foreclosed under...
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Frederick Road v. Brown & Sturm
...own, is ignorant of facts giving rise to a cause of action and has, as a consequence, failed to assert it. See, Berman v. Leckner, 193 Md. 177, 185, 66 A.2d 392, 395 (1949). In the case sub judice, having concluded that an issue of fact exists as to whether the petitioner had notice of a ma......