Flaks v. Flaks

• Citation: 196 A. 116,173 Md. 358
• Decision Date: 12 January 1938
• Docket Number: 65.
• Parties: FLAKS v. FLAKS.
• Court: Maryland Court of Appeals

196 A. 116

173 Md. 358

FLAKS v. FLAKS.

No. 65.

Court of Appeals of Maryland

January 12, 1938

Appeal from Orphans' Court of Baltimore City; Leo J. Cummings Isaac S. Field, and Philip L. Sykes, Judges.

Proceeding by Benjamin Flaks, one of the executors of Kalmen Flaks deceased, against Rose Flaks, one of the executors of Kalmen Flaks, deceased, to revoke letters testamentary granted to Rose Flaks. From an order dismissing the petition, Benjamin Flaks, one of the executors of Kalmen Flaks, deceased appeals.

Order reversed, and case remanded for an order directing that issues be sent to a court of law.

Edward L. Ward and Joseph Allen, both of Baltimore (Louis Mitnick and M. William Adelson, both of Baltimore, on the brief), for appellant.

Isaac Lobe Straus, of Baltimore (Henry M. Siegel, of Baltimore, on the brief), for appellee.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

SLOAN Judge.

Benjamin Flaks, the appellant, filed an amended petition in the orphans' court of Baltimore City, wherein he alleged that his father, Kalmen Flaks, had died December 5, 1935, leaving a will, executed November 24, 1935, probated December 18, 1935; that by the said will the petitioner and Rose Flaks, the respondent, second wife and widow of Kalmen Flaks, were named as executors, each qualifying by giving separate bonds in the sum of $1,000; that the petitioner and Rose Flaks were named as legatees in the will, and that, in addition to her legacy, Kalmen Flaks had, by deed dated January 31, 1935, caused his home at 2904 Hilldale avenue, in Baltimore City, to be conveyed to Rose Flaks and himself as tenants by the entireties, the same being a leasehold subject to an annual ground rent of $85, but otherwise free; that by an antenuptial agreement dated March 30, 1927, Rose Flaks was entitled to receive out of the estate of Kalmen Flaks the sum of $10,000, in lieu of dower; that on August 3, 1935, Kalmen and Rose Flaks left for a trip to Palestine; that aboard ship he became seriously ill, but continued the ship he became the time being under medical care; that on October 31, 1935, they arrived in New York, he, gravely ill, was taken directly from the boat to the train bound for Baltimore, thence to his home, where he was confined to bed; that on November 22, 1935, he was taken to the Sinai Hospital in Baltimore, where, his condition becoming hopeless, on his insistence, he was taken home on December 2, 1935, where he died seven days later, on December 9, 1935; that throughout his last illness Kalmen Flaks was unable to attend to his business affairs and entirely dependent upon others, and 'designated his wife, Rose Flaks, as his agent to attend to the financial details of paying his medical, nursing and household bills'; and 'that under the pretense that it was necessary for her to draw money from his bank accounts with which to meet said bills which were only of nominal amounts, the said Rose Flaks, in violation of the trust reposed in her by the deceased as his agent, did by fraud, misrepresentations, deceit and undue influence, procure the said Kalmen Flaks to sign his name' to three undated and unwitnessed orders on two savings accounts, one of the orders being on the Eutaw Savings Bank of Baltimore, from which $5,041.67, which was the entire amount of his deposit in that bank, was withdrawn November 6 1935, and two for $10,000 each on the Savings Bank of Baltimore, in which it developed that his deposit was $18,694, so that only the money on one of the two orders on that bank could be withdrawn, which was done by Rose Flaks on November 25, 1935, and she still has in her possession the other uncashed order on the Savings Bank of Baltimore.

The petitioner further alleges that he is prepared to file an inventory as one of the coexecutors of his father's estate, and has demanded that Rose Flaks enter and return the said sum of $15,041.67, the amount of the two orders cashed by her, as an asset of the estate, and to deposit the same in their joint names in some bank in Baltimore, all of which she refuses to do.

The petitioner then prays that the letters testamentary granted Rose Flaks be revoked; that she be ordered to deliver the said sum of $15,041.67 to the petitioner as remaining executor; for general relief; and that a citation issue to the said Rose Flaks to appear in the orphans' court, and answer the premises under oath.

The respondent, Rose Flaks, filed an answer wherein she vigorously denied the charges of fraud, misrepresentation, and undue influence so made against her and contended that, of the deposit in the Eutaw Savings Bank, $3,000 was hers, and that the remaining $12,041.67 was a free and voluntary gift from her husband, Kalmen Flaks, to her, but that the uncashed order for $10,000, on the Savings Bank of Baltimore 'had not been used by her, apparently due to the fact that such an amount was not to the credit of said deceased in said bank,' and she is therefore not guilty of misconduct in respect to the administration of her husband's estate, and her letters testamentary not subject to revocation. The petitioner, Benjamin Flaks then prayed that issues be sent to a court of law for trial by a jury substantially as follows: (1) Whether Rose Flaks by misrepresentation, deceit, or fraud practiced upon the decedent, Kalmen Flaks, prior to his death obtained and converted to her own use $5,041.67 on deposit in his name in the Eutaw Savings Bank; (2) whether she had by undue influence obtained and converted the same to her own use; (3) whether she had by misrepresentation, deceit, or fraud so practiced obtained and converted to her own use $2,041.67 of the Eutaw Savings Bank deposit; (4) whether she had obtained $2,041.67 by undue influence; (5) whether, by misrepresentation, deceit, or fraud, so obtained and converted to her use $10,000 from the Savings Bank of Baltimore; and (6) whether she had obtained it by undue influence, and converted it to her own use.

The respondent, Rose Flaks, answered, that the matters set up by the petitioner are solely and exclusively within the jurisdiction of the orphans' court, that such issues cannot be lawfully transmitted to a court of law, and that the issues submitted are bad and illegal in form and substance.

After a hearing on the petition for issues and the answer thereto, two of the three judges of the orphans' court dismissed the petition on the ground, '(1) that the issues submitted are faulty, and (2) that issues are not properly grantable on the amended Petition and Answer thereto upon which said Petition of May 14th is based.' The other judge dissented from the view of the majority, that the petitioner was not entitled to issues, but agreed with the result because he thought the issues proposed were improper. From the order dismissing the petition of May 14, 1937, the petitioner appeals.

This court agrees with the dissenting judge that the petitioner is entitled to issues, but disagrees with all of them that the issues submitted by the petitioner do not clearly and simply present the questions involved. The dissenting judge, in his exhaustive opinion, said, in conclusion, that 'The questions of fact as raised by the answer in this case is whether the money in controversy was given by the decedent to the respondent part in payment of a debt and the balance as a git.' The petitioner charged his coexecutor the respondent, with wrongfully withholding and converting to her use two items of cash belonging to the estate of Kalmen Flaks, one, a deposit of $5,041.67 in the Eutaw Savings Bank, and the other a deposit of $10,000 in the Savings Bank of Baltimore. Of the Eutaw Savings Bank account the respondent claimed, in her answer, that 'the sum of three thousand ($3,000.00) dollars was due and owing from the said Kalmen Flaks to this respondent, and the remaining part, to-wit, two thousand forty-one dollars and sixty-seven cents ($2,041.67) of said sum on deposit was an absolute and unqualified gift upon the part of the said Kalmen Flaks to your respondent.' The answer admits the possession of...