Kerby v. Kerby

• Decision Date: 13 January 1882
• Parties: BERNARD KERBY, JOSEPH KERBY, and others v. JAMES P. KERBY and JOHN B. KERBY.
• Court: Maryland Court of Appeals

57 Md. 345

BERNARD KERBY, JOSEPH KERBY, and others v. JAMES P. KERBY and JOHN B. KERBY.

Court of Appeals of Maryland

January 13, 1882

APPEAL from the Circuit Court for Prince George's County, in Equity.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., MILLER, ALVEY, ROBINSON and IRVING, J.

C C. Magruder, Jr., and Wm. H. Tuck, for the appellants.

Joseph K. Roberts, Jr., for the appellees.

IRVING J., delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court for Prince George's County, refusing to set aside a deed from Christiana Edelen, to her son James P. Kerby, dated the 4th day of February, 1864. The bill seeks a partition of the real estate of Mrs. Edelen by means of a sale, because of its indivisibility otherwise. It also asks for a decree setting aside the deed from Mrs. Edelen, to her son James P. Kerby that the land thereby conveyed may be sold with the rest of the intestate's estate. It also prays for an account of the rents and profits of the estate, from James P. Kerby. The Court decreed the sale of the real estate, except seventy-five acres conveyed by the deed to James P. Kerby which deed the Court upheld, except as to ten acres of wood land, which the Court deemed insufficiently described. The Court also refused to call James P. Kerby to an account for the rents and profits of the land. No formal objection has been made to the bill for multifariousness, though it was adverted to in argument, and we are not to be regarded as expressing any opinion upon the bill in that respect.

In substance, the bill charges that Mrs. Edelen was possessed of a large real and personal estate; and that, on the 4th of February, 1864, when she was seventy-two years old, with mental and physical faculties so much impaired, by age and disease, as to be unable to attend to her business, and unable to understand the nature and contents of such an instrument, James P. Kerby by undue influence and fraud procured the deed in question from her. It charges that he lived with his mother and attended to all her business, from 1854 to her death; and that he received all the proceeds of the crops and never accounted for the same; but appropriated the same to his own use; and that the average annual profits of the estate, above expenses, amounted to over one thousand dollars. It charges that the deed was without consideration, and that the considerations set out in the deed were pretended and false; that the deed was not her voluntary act, and that when a copy of it was shown to her, in January, 1868, she denounced it as a fraud practiced upon her; and immediately caused a bill to be filed to set it aside. A copy of this bill is filed as an exhibit, and it is alleged that this bill was afterwards, dismissed by an order of Mrs. Edelen, which they say was not signed by her, or if it was, was not her voluntary act; but was procured by James P. Kerby's overruling influence over his mother. It is alleged that the land embraced in the deed was more than the fair share of the grantee in the land of his mother, and was the most valuable part of the estate and included all the buildings. The preamble to the deed and the statement of consideration are in these words: "Whereas the said James P. Kerby has for many years taken care of his own mother, said Christiana Edelen, surrounding her with every possible comfort, and the said James P. Kerby has for so many years taken care of and improved the real and personal estate of the said Christiana Edelen at her entire pleasure and satisfaction: Now this indenture witnesseth, that the said Christiana Edelen in consideration of the above recited premises, and also of the solemn promise and obligation made by the said James P. Kerby of allowing his brother, John B. Kerby the privilege of having a home in the dwelling, at Hart Park, during his single life, and also in consideration of the said James P. Kerby, having resigned and given up any claim to any portion of real estate she should leave at her death, has granted, bargained and sold, &c."

The appellee, Dr. John B. Kerby, answered, alleging ignorance touching the circumstances attending the execution of the deed; but that his mother had told him James would be getting no more than he deserved, and insists that if the deed was sustained, that the charge in favor of himself must be carried out, and claiming his portion of the balance of the estate.

The appellee, James P. Kerby, answered in full, denying all the allegations made by way of impeaching the deed, and insisting on its entire fairness, and the true, voluntary and uninfluenced act of his mother. He denies that his mother had suffered from a long and severe illness, and that her mind was impaired, and her physical system was so impaired, as to render her incapable of attending to business; and unable to understand or read the contents of the deed; and that the deed was procured by his importunity. He avers the deed was prepared when he was not present, by a certain Gustavus Finotti, who did so on instruction and directions received from her personally; and was executed by her freely and voluntarily, and with full knowledge of its contents, and without any undue influence or persuasion of any kind on his part. He denies that the considerations set for thin the deed are pretended, or false in fact, or suggested by him. He came, he avers, to his mother, at her request in 1854, when he admits he owned no property; but not because he could not support himself and his children. He admits that he acted as general agent for his mother; and says but for his care and attention, being already in debt when he came, she would have been hopelessly involved in debt. He denies that his children all came with him; on the contrary, he avers that his daughters did not come to his mother's until 1861; and that his son Charles worked on the farm without compensation until his arrival at the age of twenty-one. He avers also that he received no compensation for his labor and services. He denies that he took possession of all the proceeds of the crops and never accounted for the same. On the contrary, he alleges that his mother directed the whole disposition of the proceeds, and they were paid over to her. He denies that the annual income of the farm, exclusive of expenses exceeded one thousand dollars; and alleges that for some years prior to his mother's death, the farm little more than paid expenses. He denies that since his mother's death, he has been in possession of any but his own land: and that there are any proceeds not accounted for in his administration accounts upon the estate of his mother.

By the admissions of the appellee, James P. Kerby, it is clear that he stood in that attitude and relation to Mrs. Edelen, as her general agent, which requires this deed from her to him to be scrutinized most closely, and with suspicion. It is immaterial whether it is to be regarded as a gift or as a deed for valuable services rendered; the relation he bore to her, was one of such confidence and trust, that the law regards the deed as prima facie, tainted with undue influence and fraud; and throws on the grantor the onus of showing it to be the free and uninfluenced act of the grantor, upon full knowledge of all the circumstances connected with it and of its contents. The law controlling such a case is so fully discussed, and clearly laid down in the case of Brooke vs. Berry, 2 Gill, 83, and in Todd vs. Grove, 33 Md., 188, it is unnecessary to do more than refer to those cases, for the rule to which this grantee is subject; now that the validity of his deed is assailed. Notwithstanding the suspicions attaching to the transaction by reason of the relations of the parties to each other, as principal and agent; we think, upon a careful sifting of the proof, that the deed ought to be supported, and upheld as consonant with fair dealing, and the principles of equity.

1. It appears from the proof, that James P. Kerby came to his mother's house in 1853 or 1854 at her request. Upon the suggestion of his brother, Dr. John Kerby, who lived with her all his life, except while he was at school. Dr. Kerby was unable to attend to the farm, and proposed to his mother to send for James. He came, and from that day to the day of her death he managed the farm, and attended to her business generally, except so much of it as the evidence shows she attended to in person. The farm was managed skilfully; this the witnesses all say; and by the declarations of Mrs Edelen, which are admissible against her, and those claiming under her, in support of the deed, it was so managed that her debts were paid off, and to her entire satisfaction. Indeed, it appears in the proof, that she declared him to be a most faithful, dutiful and industrious son. Beyond the support he received, he is not shown to have received any direct compensation for his services. They are variously estimated, in money value, from two hundred and fifty dollars to six hundred dollars per annum, in addition to board. Besides the services of James P. Kerby, his son Charles, during his minority, worked five years as an ordinary farm hand, without compensation. His father was entitled to his service, and disinterested testimony from a laboring man fixed the value of Charles' labor at $150 per annum, with board. The daughter Kate from the time she came in 1861, worked for her grandmother as housekeeper, and her services are proven to have been worth considerable. He and his children therefore were not a burden, but rendered active service. There seems to have been reasonable ground for the recitals in the deed, "that James had for many years taken care of his mother, and surrounded her with every possible...