Garner v. Garner

• Decision Date: 12 February 1937
• Docket Number: 83.
• Parties: GARNER ET AL. v. GARNER ET AL.
• Court: Maryland Court of Appeals

190 A. 243

171 Md. 603

GARNER ET AL. v. GARNER ET AL.

No. 83.

Court of Appeals of Maryland

February 12, 1937

Appeal from Circuit Court, Dorchester County; Benjamin A. Johnson T. Sangston Insley, and James M. Crockett, Judges.

Suit by Daniel Garner and others against Augusta (Gussie) Garner and others. Decree for defendants, and plaintiffs appeal.

Affirmed.

See also, 167 Md. 423, 173 A. 386.

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

Philip B. Perlman and Wirt A. Duvall, Jr., both of Baltimore (Harrington & Harrington, of Cambridge, and Joseph L. Bailey and J. Edgar Harvey, both of Salisbury, on the brief), for appellants.

V Calvin Trice, of Cambridge, and Raphael Walter, of Baltimore (John R. Pattison, of Cambridge, Nyburg, Goldman & Walter, of Baltimore, and Joseph Stein, of Washington, D. C., on the brief), for appellees.

SHEHAN Judge.

This is an appeal from a decree of the circuit court for Dorchester county dismissing a bill of complaint filed by Daniel Garner Emanuel Garner, Meyer E. Garner, and Esther Garner Levy, appellants and next of kin of Isaac Garner, deceased, against Augusta Garner, his widow, individually and as executrix of his alleged last will, and Emerson C. Harrington, Jr., and V. Calvin Trice, administrators of colligendum of the estate of the deceased.

Three questions are here presented:

First. The existence of a constructive trust ex maleficio, resulting from the alleged fraudulent procuring of a paper writing in the form of a last will and testament dated February 23, 1933, under the terms of which all the property of Isaac Garner was given, devised, or bequeathed unto his wife, Augusta Garner.

Second. The existence vel non of a gift causa mortis from the deceased unto his brother, Daniel Garner, for the benefit of the wife of the deceased, Augusta Garner, and the next of kin, thereby curtailing the operation and effect of said alleged will.

Third. Error in refusal to admit testimony of Daniel Garner in relation to the alleged gift causa mortis.

Isaac Garner, with the assistance of his wife, had accumulated a substantial fortune of approximately $400,000 through untiring thrift and rigid economy covering a long period of years. He died on May 29, 1932, without children, but leaving surviving him his widow, Augusta Garner, a brother Daniel Garner, and Emanuel Garner, Meyer E. Garner, and Esther Garner Levy, children of Joseph Garner, a deceased brother.

Approximately his entire estate, consisting of stocks, bonds, and securities, was found in his lockbox in the Mercantile Trust Company of Baltimore City. In addition to these there were accounts of deposit in his name and in the name of his wife.

The first two questions present issues of fact relating to the circumstances surrounding the making of said alleged will, and of the gift causa mortis. In the testimony there is much contradiction, conflict of testimony, charges of bad faith, and imputations of sordid designs and practices, which make it difficult to arrive at satisfactory conclusions.

We are not passing upon the wisdom and justice of the disposition of the property of Isaac Garner. That may properly be among the facts to be taken into consideration in deciding the questions involved. Ordinarily, a rational man may be presumed to dispose of his estate according to the usual concepts of duty and the known disposition of people to favor those who are nearest to them and who ordinarily have the first claim upon their bounty, but in a contrary settlement of property, made deliberately without restraint by a rational person, courts cannot intervene to make a will or dictate dispositions of estates. It might seem just for Isaac Garner to have given something to his brother Daniel, with whom he had worked and been associated, as a near relative and helpful friend for many years. They had peddled together through parts of this state, one with his pack of merchandise and notions and the other with his tinware. As to the deceased brother Joseph or his children there is no appearance of ill will on their part, or on the part of Isaac Garner towards them. There is no suggestion of misconduct, unfriendliness, or neglect, and to so dispose of his property that his wife and his wife's relatives, after a few years, will receive all of it, may seem unjust, but that, in itself, is not our problem. Augusta, the widow, is over 70 years of age. She has brothers and sisters living, and upon her death they or their descendants will probably come into possession of such part of the estate as remains in her at the time of her decease.

These are facts to be taken into account in weighing the testimony and in the final decision of the case.

Isaac Garner made a will on January 3, 1919, about 14 years before his death, leaving all of his property to his wife and named her as executrix. The will of February 23, 1933, is exactly the same in language and effect as the first will. There is no question raised as to the legality of the first will, but the validity of the second will is questioned and will be first considered in this appeal.

The first will stood until February 23, 1933, about which time he had become seriously ill, and evidently his mind turned sharply toward his business affairs and the ultimate disposition of his property. He became anxious lest the conviction of one of the attesting witnesses to the first will, of a serious criminal offense, might affect its validity; at least this is the reason given by the widow for his making a second will identical in terms, and word for word an exact copy of the previous will. The appellants contend that there was no reason at all for the execution of the second will in its present form, as a result of such anxiety, because Isaac Garner had inquired of and taken the advice of Abel A. Rosenberg, of the firm of MacKubin, Legg & Co., after Mr. Rosenberg had consulted an attorney. This advice was to the effect that the conviction or imprisonment of an attesting witness to a will did not affect its validity. The testimony on this point is not questioned. The appellants claim that the true reason for Isaac Garner's desiring to make a second will was entirely different from that advanced by his widow. It is alleged in the bill of complaint, and to some extent supported in the testimony, that the deceased had concluded to change his first will, and, after some minor bequests, to so dispose of his property that his brother Daniel and the children of his deceased brother Joseph should receive one half of his estate and his wife the other half, doubtlessly realizing that under his will, by which his wife received the entire property, her brothers and sisters, or their descendants, would ultimately receive the entire property, to the exclusion of his own near relatives, and this would soon occur, because he was ill, and both he and his wife were far advanced in years.

It is charged that in order to effect this change in the disposition of the property, and not because of any anxiety as to the attestation of his first will, that he undertook to decidedly change the disposition of his estate by making another will.

It is alleged that, being seriously ill, Mr. Garner sent his wife to Mr. Walter B. Johnson, cashier of the National Bank of Cambridge, who had drawn the first will, and who had known and had transacted business with Isaac Garner for a long time, with the instructions that he prepare a will carrying out his plans for a new disposition of his estate. It is charged that he directed his wife to instruct Mr. Johnson to prepare a will so that, after certain charitable and religious bequests and other small gifts, his property should be divided, one-half to his wife and one-fourth to Daniel, and one-fourth to the children of his deceased brother Joseph. It is further charged that, his wife realizing the effect of this change, and knowing that her husband could not read the English language, and in order to trick and defraud her husband into executing a will identical in form and effect with the first will, and not change it as desired by him, so that she would receive practically the entire estate, she requested Mr. Johnson to make an exact copy of the first will, except as to date, the signatures of the said Isaac Garner, and the attesting witnesses. She delivered this will to Mr. Johnson and explained that her reason for so doing was that her husband might be relieved of his anxiety as to the validity of his first will. As requested, Mr. Johnson caused this copy to be made with care and precision and carried it to Mr. Garner's place of business and took with him two employees of the bank to attest the will, if it met with his approval. What then happened is of such importance that the testimony of Mr. Johnson on this question will be here set out:

"I told Mr. Garner that I had the paper I had promised to prepare and the clerks of the bank were across the street, if he wanted to execute the paper I would call them. He said 'All right.' I went to the door and called the clerks over. After they got there I took the papers out of my pocket.

Q. What papers? A. The old will and the will I had just completed. I said, 'Mr. Garner here is this paper; do you want to read it?' 'No.' 'Do you want to read it?' 'No.' I said, 'Do you know this is your last will and testament that Mrs. Garner asked me to write this morning; being you haven't read it and don't want me to read it, I might state it is identical with the other will; it is the same in every particular; and as I understand, the only change you wanted to be made in that will was to change the witness--have a witness other than Mr. Barnett.' He said, 'That is right.' "

The proper execution of this paper as a will is not...