Cronin v. Hebditch, 165

• Decision Date: 15 June 1950
• Docket Number: No. 165,165
• Citation: 74 A.2d 50,195 Md. 607
• Parties: CRONIN et al. v. HEBDITCH.
• Court: Maryland Court of Appeals

Page 607

195 Md. 607

74 A.2d 50

CRONIN et al. v. HEBDITCH.

No. 165.

Court of Appeals of Maryland.

June 15, 1950.

Concurring opinion June 17, 1950.

J. Wilmer Cronin, Bel Air, and Lawrence B. Fenneman, Baltimore (N. Paul Cronin, Aberdeen, and William S. James, of Bel Air, on the brief), for appellants.

Edward H. Burke, Baltimore (A. Freeborn Brown, Bel Air, G. Howlett Cobourn, Havre de Grace, and Bowie, Burke & Leonard, Baltimore, on the brief), for appellee.

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

MARKELL, Judge.

This is an appeal from an order overruling demurrers to a bill. Plaintiff, a 19-year old widow, filed a bill against the successors in title or interest to her 72-year old husband, to have declared ineffective, null and void, a 'separation agreement', dated January 11, 1949, and three inter vivos transfers in trust, dated respectively January 2, 1948, March 4, 1948 and March 4, 1948 and to have the assets, instead of the shares of stock, of two corporations treated as assets of the husband or his estate and one-third thereof distributed to her, as widow.

The case is typically one which since June 1, 1950, under Chapter 73 of the Acts of 1950 and Rule 6A of the Rules and Regulations Respecting Appeals, adopted May 18, 1950, would not be appealable at this stage. Before 1950 it was repeatedly held that an order overruling a demurrer to an entire bill (but not one overruling a demurrer to part of a bill) is appealable. Laurel Realty Co. v. Himelfarb, Md., 62 A.2d 263, 264; Young v. Cockman, 182 Md. 246, 248-249, 34 A.2d 428, 149 A.L.R. 1006. In the instant case, therefore, we consider the demurrers only in so far as they are demurrers to the whole bill. Defendants demur 'to the whole bill * * * and to each and every paragraph thereof and to each prayer thereof,' and assign fourteen specific reasons for their demurrers. Manifestly, some of the reasons for demurrer, e.g., that the property of a corporation is not the property of its shareholders, are not grounds of demurrer to the whole bill.

On January 14, 1948 (the bill alleges) plaintiff, then eighteen, and John C. Hebditch, then seventy-one, were married. On March 24, 1949, Hebditch, then seventy-two, died. At the time of the marriage plaintiff had no property of her own; at the time of his death she had no separate property and owned no property jointly or by the entireties with him. They had no children. She had never previously been married; he had been twice married and once divorced; his first wife had died. He left four children by his previous marriages and a number of grandchildren.

Plaintiff lived with Hebditch from the time of the marriage until May 20, 1948, when she left him and 'took up her abode with her parents, near Havre de Grace'. On September 10, 1948 she filed in Harford County a bill 'for separate maintenance and for alimony' on grounds of 'cruelty of treatment'. On January 11, 1949, while they were living part, plaintiff and her husband executed a 'separation agreement', which recites that 'unfortunate differences have arisen * * *, which renders it inadvisable that they further continue to live together', and 'they have agreed to separate and live apart from each other until due action in the matter of a divorce between them can be had, which action will shortly be instituted in a court of equity, and * * * they have come to an agreement respecting the disposition of the property of each'. The separation agreement' then provides that 'in consideration of the premises, the wife hereby releases the husband from all obligations of further support and she releases and relinquishes unto the said husband, his heirs, personal representatives and assigns, all rights and claims by inheritance or descent in any and all of the real property of the said husband now held or hereafter acquired by him, and all rights in anywise growing out of or incident to the said marriage relation; the said wife also further agrees that she will not at any time contract debts upon the credit of the said husband, and that in the said action for divorce or in any other action for divorce growing out of this marriage, she will not make any claim for alimony or counsel fees. The husband, in consideration of the premises, does hereby release and relinquish unto the said wife, her heirs, personal representatives and assigns, all rights or claims of dower, curtesy, descent and all other rights or claims growing out of this marriage between them, and the said husband shall be forever barred from any and all rights of the estate of said wife, whether now owned or hereafter acquired by her. And the said husband, in consideration of the premises, does hereby agree, conditioned upon a decree for divorce, to pay unto the said wife, the sum of Nine Thousand Dollars ($9,000), one Thousand Dollars ($1,000) to be paid at the time of the signing of a decree of divorce, and the remaining Eight Thousand Dollars ($8,000) to be divided into ten equal, annual payments of Eight hundred dollars ($800.00) each, beginning in 1950; and in addition thereto the sum of One Thousand dollars ($1,000) in cash to be paid as required by the said wife for the payment of counsel fees, costs and expenses in connection with her contemplated suit for divorce; and in addition thereto will pay all income taxes which the said wife may owe each year on the said One Thousand Dollars ($1,000) and Eight hundred dollars ($800.00) payments, during the eleven year period. And it is further agreed that the said wife will withdraw the present suit for alimony now pending in * * * Harford County * * *. The said wife agrees to execute with the said husband a joint income tax return for the year 1948, the said husband agreeing to pay all income taxes due for said year on the income of both husband and wife.'

After execution of the 'separation agreement' plaintiff went with her husband in an automobile to Florida, where she was left with her aunt at West Palm Beach and he went to his winter home at Miami. Argumentative allegations suggest reconciliation and 'the full resumption of marital relations' for a short time, 'which reconciliation and resumption of marital relations [plaintiff] alleges did occur'. After Hebditch's death the separation agreement was recorded.

When plaintiff became engaged to marry him, before their application for a marriage license on January 12, 1948, and continuously thereafter until his death, Hebditch was worth more than $700,000.

After Hebditch's death there were also recorded three revocable deeds from him to J. Wilmer Cronin and himself, as trustees, dated respectively January 2, 1948, March 4, 1948 and March 4, 1948, each 'in fact made without any consideration whatsoever'. Plaintiff had no knowledge of the execution of any of these deeds until after Hebditch's death. On January 2, 1948 plaintiff and Hebditch were engaged. The deed dated January 2, 1948 purported to transfer 1500 shares of stock of Coca Cola Bottling Works, Inc., incorporated in 1924 (including 150 shares apparently held by Hebditch as guardian for his children), out of 1642 shares outstanding, and 800 shares of stock of John C. Hebditch Realty Corporation, incorporated in 1939, out of 900 shares outstanding. The aggregate value of these shares of both corporations was indicted by attached stamps to be in excess of $300,000, and in fact was and is 'substantially in excess of $300,000.' The trustees were to pay the income from these shares to Hebditch, as guardian, and Hebditch, individually, respectively, and after his death, 'should I re-marry and my wife survive me, then * * * to set aside five per cent (5%) of said stock and to pay the income therefrom to my widow for and during her natural life' and the income from the remainder of the stock to pay to his children, for themselves and their children, with ultimate distribution to his children and grandchildren, or their descendants, subject to limited provisions for charitable purposes and for care of the family cemetery lot.

One deed dated March 4, 1948, purported to transfer on the same trusts 135 shares of Bottling Works stock and 88 shares of Realty Corporation stock. The other deed of the same date purported to convey on the same trusts two farms near Elkton and certain lots in Havre de Grace, all indicated by stamps to have a value of $50,000 but believed by plaintiff to have 'a much greater value'.

Hebditch left a will and codicil, dated respectively November 21, 1944 and January 17, 1947, which made no provision for a possible widow. He left goods and chattels inventoried at $38,489.75 and bank deposits of $11,232.51, and a farm in Virginia and one in Florida, said to be worth $10,000 and $35,000 respectively.

In the two corporations Hebditch 'carried practically all of his wealth. * * * after the execution of said pretended deeds of trust * * * Hebditch continued to exercise the same control over the trust property * * *, without any change whatsoever, and in fact * * * exercised full dominion and control over the trust property up to the moment of his death'. The trust deeds are 'part of a scheme or device' whereby Hebditch 'became free to deal with the major part of his property, money and effects, freely during his life * * * and at the same time * * * did deprive [plaintiff] of the enjoyment of her legal rights in said property after his death. * * * said purported transfers in trust are and were in fact illusory only and each was tainted with the same fraud on [plaintiff's] marital rights, and with respect to [plaintiff] * * * is in fact fraudulent and void.'

Plaintiff charges that the 'separation agreement' is 'null and void and of no effect', (a) by reason of her infancy and 'the fact that it is without consideration and is grossly unfair,' (b) because, if it is not void but voidable, she hereby repudiates it, (c) because it is against public policy, and (d) because, if it...