Moodhe v. Schenker

• Citation: 4 A.2d 453,176 Md. 259
• Decision Date: 22 February 1939
• Docket Number: 34.
• Parties: MOODHE v. SCHENKER.
• Court: Maryland Court of Appeals

4 A.2d 453

176 Md. 259

MOODHE v. SCHENKER.

No. 34.

Court of Appeals of Maryland

February 22, 1939

Appeal from Circuit Court No. 2 of Baltimore City, J. Abner Sayler Judge.

Bill by Charlotte Moodhe against Paul Schenker, administrator of the estate of Edward J. Coleman, deceased, to recover property claimed to have been given to plaintiff by deceased. From a decree dismissing the bill, plaintiff appeals.

Decree affirmed.

Hartwell M. King, of Baltimore, for appellant.

Michael J. Manley, of Baltimore (Samuel J. Gaboff, of Baltimore, on the brief), for appellee.

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

MITCHELL Judge.

This is the second appeal growing out of the matters in controversy between the parties to this suit, which has been presented to this Court.

The first appeal was before us in the case of Paul Schenker Administrator of Estate of Edward J. Coleman, v. Charlotte Moodhe, 175 Md. 193, 200 A. 727, 729, and was decided by this Court adversely to the appellant in the present case. By that decision we held that the complainant below was not entitled to the relief then prayed, and accordingly, the order of the Chancellor overruling the demurrer to her second amended bill of complaint was reversed, and the case remanded to the Circuit Court of Baltimore City, to the end that the demurrer be sustained and the bill dismissed. This was effected by a decree of the Circuit Court of Baltimore City, passed on August 11, 1938.

The appellee in the former case, who is the appellant in the instant case, thereupon instituted entirely new proceedings in the Circuit Court No. 2 of Baltimore City, in which, with the exceptions hereinafter noted, she filed a bill of complaint predicated, substantially, upon the same grounds as those upon which her former suit was based.

In substance both the second amended bill in the former suit, and the bill filed in the case now before us, set up a state of facts as follows:

That Edward J. Coleman had no close relatives or friends; that he lived at 1400 Rosedale Street, in the City of Baltimore, and that he died on June 17, 1937. That eighteen months prior to his death, the appellant in the instant case and her husband occupied premises adjoining the home of the deceased, and that during that period she became acquainted with Mr. Coleman; that he was a sufferer from some facial disease, and due to that condition she became interested in his welfare, and waited upon him and administered to his wants, as gradually his condition grew worse. That on the morning of June 14, 1937, Mr. Coleman called her from his next door home, and that when she answered the call, she found him in helpless condition, lying upon the floor of the lower front room of his dwelling; that realizing the seriousness of his condition, she then inquired of him whether there were any persons he desired to be notified of his illness, and that his reply was in the negative.

It is then alleged that on several occasions prior to June 14th, Mr. Coleman had expressed his gratitude to the appellant because of her many acts of kindness to him, and stated that she would be remembered and finally taken care of by him. That on the evening of June 14th, realizing that his death was imminent, he told her of his purchase of a lot in a cemetery, directed her where she would find the receipt for the same, and where she would find his bank books and other important personal papers; all of which were then kept in the same front room to which she had been called earlier in the day and in which Mr. Coleman remained at the time he gave the above directions. That he also told her that she would find the number of his safe deposit box among said papers; that he desired her to possess and hold all of the books and papers above mentioned, including the contents of his safe deposit box, for the purpose of paying his funeral bill and other expenses, and that the remainder of his estate he wanted her to have in her own right because of the favors and services she had rendered in his behalf. A similarity between the two complaints is found in allegations to the effect that on June 14th, an unidentified person assuming to represent the Health Department of Baltimore City, called at the Coleman home, and after examining Mr. Coleman advised the complainant that the ill man was suffering from a contagious disease, and warned her not to enter or touch anything in the Coleman home; and that on the following day, Mr. Coleman again called the complainant, reaffirmed what he had previously told her about the aforesaid gifts, and advised her to take the indicated articles as her own, as he wanted her to have them; that he then knew death was imminent, as he said, 'he could not live two days longer'.

Then follows the first material variance between the former complaint of the appellee, and her complaint as now alleged, in that in the former it was stated: 'In obedience to the warning of the doctor as aforesaid, your oratrix refrained from entering his said home.' While in the case now before us it is set forth: 'Your oratrix did not remove the articles mentioned as she knew that they were safely in her care, custody and possession, since Coleman's diseased condition would not permit his removal of them, nor could anyone else do so, since entry to his home was impossible. He had barred the rear door and she was the only person who had a key to the front door and access to the house when desired.'

In both bills allegations appear to the effect that at the suggestion of an unidentified physician with the assistance of the appellant, arrangements were made for the transfer of Mr. Coleman to a hospital, and that he died at the latter place. And in both complaints it is set forth that as Coleman was being removed from his home, he called the complainant and directed her to get his keys, which he stated would be found in the pocket of his trousers, in the front room of his home.

With regard to the response of the appellant to the above request, however, the incident is stated differently in the respective bills.

In the former case it was set forth that: 'Fearing to touch his clothing she refrained to get the keys in question. She was then advised to keep watch upon his home; this she did until further need was no longer required.'

While in the instant case the appellant states:

'Having in her possession the key to Coleman's home as aforesaid, she continued her care, custody, control and dominion over said premises and she retained in her possession the articles therein until she learned of Coleman's death, at which time she notified certain police officers that she had in her possession papers given her by Coleman, among which were instructions relative to his burial. They called at 1400 Rosedale Street and removed therefrom the articles in question and later erroneously delivered them to the said defendant, who is now wrongfully holding them against the claim of your oratrix.'

The amended bill in the former case and the bill in the instant case are similar in that each attempts to set up: (a) constructive possession of the bank books and other papers by the complainant as of June 14, 1937; (b) qualification of the appellee in the Orphans' Court of Baltimore City, as administrator of Mr. Coleman, and (c) the illegal detention of the above property by the appellee.

And, finally, further similarity in the respective complaints is found in that the relief prayed in both submitted for determination the question: Whether the facts above stated constitute a trust in favor of the plaintiff, or a gift inter vivos or a gift causa mortis to her.

The appellee answered the bill of complaint filed in the instant case, and by that answer denied, generally, all material allegations contained therein. With the answer, a certified copy of the amended bill of complaint filed in the former case was filed as an exhibit; the result of the suit in the former case was set forth, and it was submitted by the respondent that the decree entered in the former case was a subsisting judgment and constituted a final adjudication of the matter alleged in the bill of complaint now before us.

The answser was followed by a petition in which the respondent, after setting forth the defense of res judicata as embodied in his answer, submitted that said defense, in effect, was a bar to the suit of the complainant; and requested the Chancellor for a separate hearing on the above matter of defense to the end that the same might be disposed of before the trial of the principal case. Code Art. 16, sec. 173; general equity rule No. 18.

A motion ne recipiatur to the above petition was filed by the complainant, whereby it was sought to have the petition dismissed, (a) because the cause was at issue upon bill and answer, and (b) because the answer put in issue the question of res judicata, and that if the same was intended to be in the nature of a demurrer, plea in abatement or bar, the affidavit to the same should have embraced an averment to the effect that it was not intended for delay.

The Chancellor heard the case upon the motion ne recipiatur and the defense of res judicata at the same time, and on September 21, 1938, passed a decree denying the motion; sustaining the defense, and dismissing the bill of complaint, with costs to the defendant.

From that decree this appeal is taken.

By the bill of complaint filed in the instant case, the defendant was not required to answer under oath, Code Art. 16, sec 183; but, nevertheless, it appears from the record that he did so answer, and while the form of the affidavit is not set out in the record, it is admitted in the brief of the appellee that it did not cover the objection...