Mead v. Gilbert

• Decision Date: 10 June 1936
• Docket Number: 42.
• Citation: 185 A. 668,170 Md. 592
• Parties: MEAD v. GILBERT ET AL.
• Court: Maryland Court of Appeals

185 A. 668

170 Md. 592

MEAD v. GILBERT ET AL.

No. 42.

Court of Appeals of Maryland

June 10, 1936

Appeal from Circuit Court, Anne Arundel County; Linwood L. Clark Judge.

Suit by Martha M. Gilbert and others, heirs at law and devisees under the last will of Annie Mead, late of Anne Arundel County deceased, against Robert S. Mead and Robert S. Mead executor. Decree for plaintiffs, and defendant appeals.

Affirmed.

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

Ridgely P. Melvin, of Annapolis, and John B. Gray, of Prince Frederick (John B. Gray & Son, of Prince Frederick, and George B. Woelfel, of Annapolis, on the brief), for appellant.

Robert Moss, of Annapolis, for appellees.

OFFUTT Judge.

Annie Mead, late of North Beach Park, Anne Arundel county, died testate on September 8, 1932, leaving to survive her five children, Martha M. Gilbert, born Mead, May Belle Gay, born Mead, Harry E., Charles J., and Robert S. Mead. Prior to her death she executed a deed dated August 25, 1931, which was recorded on August 28, 1931, by which she conveyed to Michael J. Lane and Bertha E. Lane, his wife, a tract of land improved by a cottage which she used as her summer home at North Beach Park. The acknowledgment of that deed was taken by Z. Elizabeth Fitzgerald, a notary public, who certified that "on this 25th day of August 191-- before the subscriber a Notary Public in and for the State of Maryland, personally appeared Annie Mead and wife and did acknowledge the aforegoing deed to be her act. In Testimony Whereof, I have affixed my official seal this 25th day of August A. D. 191--." On August 31, 1931, by deed bearing that date, recorded September 2, 1931, Lane and his wife conveyed the same property to Robert S. Mead and Annie Mead as joint tenants. The granting clause of that deed described the property granted in these words (in part): "Those pieces or parcels of ground, situate, lying, and being, in Anne Arundel County, State of Maryland, being the same land which the said part is of the first part Michael J. Lane and Bertha E. Lane obtained from Annie Mead by deed dated the ______ day of August 1931, recorded in the Land Records of ______ in Liber ______ at folio ______."

In November, 1933, the other surviving children of Mrs. Mead filed the bill in this case against their brother Robert S. Mead individually and as executor of his mother's estate, for the purpose of having the two deeds to which reference has been made annulled, on the ground that the deed from Mrs. Mead was procured by fraud at a time when she was mentally incompetent to execute it, and that the deed from the Lanes was merely an incident of a single fraudulent scheme.

The defendant answered, denied the fraud, a replication was filed, testimony was taken before an Examiner, the case heard, and on February 15, 1936, the court signed a decree annulling both deeds. From that order Robert S. Mead, defendant below, took this appeal.

The testimony is not all conflicting. There are some facts which are either admitted or undisputed, and they will be stated first.

It does not definitely appear how old Mrs. Mead was at the time of her death, but it does appear that she was between 70 and 80 years of age, and that at the time of her death her oldest living child was about 44 years old. On June 24, 1902, she executed a will at Hampton, Va., in which she distributed her estate equally among her children, and in that will, Henry E. Mead, her husband, and Robert S. Mead, purport to be named executors. Robert at that time was about 14 or 15 years old, and in the probated will it appears that his name was written in the will in the place of another name which was there originally, but which had been erased. There was no explanation of the substitution, nor any identification of the hand by which the substitution was written. It was proved by Robert S. and Henry E. Mead, who made affidavit only to the genuineness of Mrs. Mead's signature.

She appeared to be on excellant terms with all of her children. From time to time she helped each of them financially; in the winter she lived in an apartment which Robert Mead, her son, occupied, apparently with his brother Charles, and in the summer she lived either at her cottage at North Beach Park or visited her daughters, who were married and had homes of their own, one in New Jersey, the other in the city of Washington. When she occupied her cottage, Robert appears to have lived with her, and when he left the apartment for his mother's cottage, the wife of Charles would move into it and live there with him.

Notwithstanding her generosity to her children, Mrs. Mead retained some property, and especially the house and lot at North Beach Park, which is the subject of this suit.

Her health began to fail some time prior to her death; in August, 1931, she became very ill, and on the 26th of that month she was removed to the Sibley Hospital in Washington, where she was attended by Dr. A. Magruder McDonald. On the day before she went to the hospital, she was in bed, seemed to be very weak, and apparently in great pain. On that day her son came to her room accompanied by a notary public, Mrs. Z. Elizabeth Fitzgerald, who was also a real estate operator, and in the course of that visit, she executed the deed to Lane and his wife. The notary said that she, Mrs. Mead, produced the deed and that her son, Robert, held her up in bed while she signed it. The second deed from the Lanes to Mrs. Mead and Robert as joint tenants was not executed at that time, and Mrs. Fitzgerald, although she took the acknowledgment of the grantors named in it, testified that she had no recollection of having seen that deed or having taken the acknowledgments of it.

When the deed to the Lanes was executed, Mrs. May Belle Gay was staying in the cottage with her mother, and there were present also Mrs. Gay's small son and a nephew. When Robert arrived with the notary, he requested Mrs. Gay to "keep the children on the back porch as there was a little business that man had to transact," so that neither she nor the children were present while the deed was executed.

The controverted issues of fact are: (1) Whether at the time she executed the deed to the Lanes Mrs. Mead was mentally competent to execute a valid deed or contract; (2) whether her son Robert stood in a confidential relation to her at that time; and (3) whether her execution of that instrument was procured by fraud.

It is not disputed that Mrs. Mead was at that time very ill, although there is a decided conflict in the medical testimony as to the nature of her illness. Dr. Grafton D. P. Bailey, who had attended her for three years said that she was suffering from cancer of the bladder and vagina, Bright's disease and uremia, and that eventually she died from uremic coma. He had attended her shortly before August 25, 1931, but on that day he happened to be away, and she was so ill that Dr. G. P. Ward was called in to see her. Apart from stating that when he saw her Mrs. Mead "had abdominal pathology ailment" whatever that may mean, Dr. Ward expressed no very clear opinion as to what was the nature of the disease from which she suffered when he saw her. He did, however, state with assurance that when he saw her she "was capable of transacting any business as much as she had been in any of her previous five years," although he admitted that he had never seen her in those five years nor indeed at all prior to that day.

Dr. A. Magruder McDonald attended her when she reached the hospital. He found he said, no evidence of cancer, but it also appears from his testimony that he did not look for any. His testimony as to what actually was found is somewhat confusing as will appear from this extract from it: "In the course of her stay in the hospital we had certain laboratory work done and Xray in that laboratory. * * * The Xray report showed that there was apparently some obstruction in the small bowel, and that there was a chronic appendicitis and no obstruction in the small bowel. The laboratory work on her blood was absolutely normal in all phases in the blood chemistry." He found no uremia. In his direct examination he was asked to express an opinion as to Mrs. Mead's mental condition on August 25th on the hypothesis that her condition then was the same as when he examined her. But since there was no evidence in the case to support that hypothesis, the objection to the question should have been sustained. He further said that when he examined her he saw nothing unusual in her mental condition.

Herman E. Burgess, a neighbor, said that whenever he saw Mrs. Mead she "had her own mind," that she talked "just the same as any one else talked," but he was not sure that he saw her on the day she executed the deed.

Margaret V. Sinyard, also a neighbor, who saw her after her return from the hospital, said she "seemed to be perfectly rational."

Robert Lee Tucker, who managed a local grocery store, said that he had seen Mrs. Mead before she went to the hospital, he could not say precisely when, but not "very long," and that then "she seemed as good as ever she was" to him, "her mind was alright." These three witnesses also said that she had told them that she wanted her son Robert to have her property at the "Park."

Dr Bailey was recalled in rebuttal, and after having described her condition was asked: "Based on this condition and the testimony which you have read this morning of the people who saw her on that day, do you or do you not consider on that day her capable of making a valid deed or contract?" An objection to that question was overruled, and witness answered: "From the testimony of one or more witnesses previously taken I would say that she...