Grimm v. Virts

• Decision Date: 14 November 1947
• Docket Number: 27.
• Citation: 55 A.2d 716,189 Md. 297
• Parties: GRIMM et al. v. VIRTS.
• Court: Maryland Court of Appeals

55 A.2d 716

189 Md. 297

GRIMM et al. v. VIRTS.

No. 27.

Court of Appeals of Maryland

November 14, 1947

Appeal from Circuit Court, Washington County; Joseph D. Mich, Judge.

Suit by Charles E. Virts, executor of Annie B. Reeser, deceased against Ella N. Grimm and Joseph E. Himes, to set aside a transfer of a bank account made by the deceased prior to her death. From a decree setting aside the transfer, the defendants appeal.

Decree reversed and bill dismissed.

Omer T. Kaylor, of Hagerstown (Harry E. Snyder, of Hagerstown, on the brief), for appellants.

Charles W. Wolf, of Hagerstown, for appellee.

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

MARBURY Chief Judge.

This appeal presents the familiar pattern of an executor attempting to set aside a transfer of a bank account made by his testatrix prior to her death. Such a case obviously depends largely upon the evidence produced as to the mental capacity of the testatrix, her knowledge of what she was doing, and the surrounding circumstances when the transfer was made. Notwithstanding this, however, the appellants overlooked or ignored our Rule 39, Section 1(e), which requires their appendix to contain such parts of the record as they desire the Court to read. They have printed in their appendix nothing but the opinion of the Chancellor and the decree. The appellee has no appendix to his brief, and submitted the case here without argument. Under these circumstances we consider, as we have several times stated only the uncontroverted facts set out in the briefs and in the opinion of the Chancellor, and will decide the case as presented by these facts.

The Chancellor held that the testatrix was mentally competent to execute a valid instrument at the time she made the transfer that Joseph E. Himes, one of the transferees and appellants, stood in a confidential relationship to her, but that he did not show that it was her free and voluntary act, and, therefore, that the transfer should be set aside. He further held that the form of the assignment was a gift inter vivos, and that as the testatrix retained the bank book, the gift was never completed. As the result of these conclusions, he directed that the account revert to the name of the testatrix in which it was before the transfer. From this decree the transferees appeal.

The facts as we have been able to glean them, show that Annie B. Reeser, a widow, without children, died on June 2, 1945, at the age of 72. She was survived by a sister, Mrs. Ella N. Grimm, one of the appellants, and some nieces and nephews, one of whom was Joseph E. Himes, the other appellant. She owned a small house in Washington County, and lived there until five or six years before her death. Then she spent some time at the home of her brother, John Himes, but in December, 1944, a daughter of the latter took Mrs. Reeser to Mrs. Grimm's home and let her out at the gate. Thereafter she lived there. She rented her home on March 24, 1945, and on April 24th the tenant paid her the rent and took a receipt. On this last mentioned day, she signed the order to transfer the account which is in question here. On August 23, 1944, Mrs. Reeser had on deposit in the Brunswick Bank, $390.80. On that day she and the two appellants went to the Brunswick Bank and took from her safe deposit box $2000 she had there in cash. This and the $390.80 was entered on a pass book No. A-1609 in her name. They also took from the box $200 which was entered in Mrs. Reeser's checking account. This last item does not enter into this case. On April 20, 1945, Joseph E. Himes went to the bank and had the Assistant Cashier prepare an order which read 'I request you and authorize you to make my savings account A-1609 jointly with my sister, Ella N. Grimm and nephew, Joseph E. Himes.' On April 24th, this was signed by Mrs. Reeser. Her signature was witnessed by her nephew Roger Himes, and his wife, Dorothy. Roger was the son of Joseph. Joseph called them on the phone, told them their aunt wanted them, and then went over and got them. On the same day this paper was executed, Himes took it and the pass book to the bank, and the Assistant Cashier stamped the pass book with a rubber stamp. The entry, after this stamp had been applied, read, 'Annie B. Reeser, in trust for her, Joseph E. Himes and Ella N. Grimm, joint owners, subject to the check of either, the balance at the death of either to belong to the survivor.' The book so stamped was returned by Joseph Himes to Mrs. Reeser. She opened it, read it in the presence of the two witnesses to the order, and said that was the way she wanted it.

Several physicians testified as to Mrs. Reeser's condition. One said she had senile dementia. One of the doctors who saw her on only one occasion said she...