Myers v. Myers

• Decision Date: 08 November 1945
• Docket Number: 8.
• Citation: 44 A.2d 455,185 Md. 210
• Parties: MYERS et al. v. MYERS et al.
• Court: Maryland Court of Appeals

44 A.2d 455

185 Md. 210

MYERS et al. v. MYERS et al.

No. 8.

Court of Appeals of Maryland

November 8, 1945

Dissenting opinion November 14, 1945.

Rehearing Denied Dec. 18, 1945.

Appeal from Circuit Court, Frederick County; Charles W. Woodward Judge.

Suit by G. Ferdinand Myers and others against Edward I. Myers and others to annul certain deeds by which plaintiffs' mother, since deceased, conveyed certain realty to defendants. From a decree declaring the deeds void on the ground of undue influence, defendants appeal.

Decree reversed and complaint dismissed.

MARKELL J., dissenting.

H Kieffer DeLauter and Holden S. Felton, both of Frederick, for appellants.

Benjamin B. Rosenstock, of Frederick (E. Austin James, of Frederick, on the brief), for appellees.

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

DELAPLAINE Judge.

In this suit G. Ferdinand Myers, Mary G. Loy, A. Rebecca Hahn and Russell E. Myers prayed the Circuit Court for Frederick County to annul five deeds of real estate, which their mother, Mary E. Myers, deceased, had given to their brother, Edward I. Myers, and his wife and children. The chancellor declared the deeds void on the ground of undue influence, and the grantees are appealing from the decree.

It appears from the record that the mother, upon the death of her husband, George Edward Myers, in May, 1941, became sole owner of her home on East Third Street in Frederick and also fourteen small rented houses. She named her son Edward, who lived nearby, to act as her agent to settle the estate and to attend to the houses, inasmuch as Ferdinand was located in Baltimore and Russell in Ohio. When it was found that his father and mother had endorsed promissory notes for about $6,000 for Mary and Rebecca, Edward instructed the banks to notify them that their mother would not endorse any more renewal notes. Offended by the notices, they refused to visit their mother, who was 74 years old and entirely alone. She then invited Edward and his family to live with her, and he expressed a willingness to buy the parental home at the assessed value. His sisters, however, objected and threatened to run up the price so that he could not buy it. On hearing this, Edward said to his mother: 'If that is the way they feel about it, I will come, and the Hell with them all!' Even before he and his family moved in, his mother determined that the son and daughter-in-law who lived with her should inherit the home. As her husband's attorney thought it would be advisable to postpone making a will on account of the stress of circumstances at that time, she retained William M. Storm, attorney, who prepared a deed conveying the home to Edward and his wife, subject to her life estate. The deed was executed and recorded on August 1, 1941. Edward and his family moved into the home during the month of August. Several months later Russell warned his mother from Ohio that his sisters were planning to file suit against her to declare her incompetent to handle her own affairs, but that he would remain loyal to her as long as she lived. She determined to resist the suit and also to make disposition of her other houses. She went unaccompanied to Mr. Storm's office with a list of her houses, from which he prepared four deeds, one giving three houses, assessed at $1,085, subject to her life estate to Russell, the other three conveying houses, assessed at $14,360, subject to her life estate, some to Edward and his wife, the others to their children. The deeds were executed February 24, 1942, and were recorded on March 5, 1942.

On May 1, 1942, Ferdinand, Mary and Rebecca filed their bill of complaint alleging that their mother did not understand the deeds and had been induced to sign them by Edward's domination and influence. The bill prayed the court (1) to annul the deeds, and (2) to appoint a trustee to carry out her husband's wish that she seek the advice of his friend, Horace C. Zacharias, of Frederick, in the management of her estate. She appeared in court and emphatically denied the charges, explicity declaring: 'Edward did not know one earthly thing. * * * I had not been influenced by any one.' On October 1, 1942, the chancellor dismissed the bill, holding that the evidence proved beyond doubt that Mrs. Myers was of sound and disposing mind and capable of making a valid deed or contract. The trial served only to intensify her indignation. When one of her daughters sent her flowers for Christmas, she replied that the court might bring her back for perjury.

In September, 1943, the daughters planned a different course of action. Through a mutual friend as intermediary, they sought a reconciliation with their mother. At the friend's home they were greeted by her with affection. Soon afterwards she left the home where she had been living about 50 years; ordered her furniture moved out of the house; employed her daughters' lawyer; notified Edward to pay rent; requested him to deed the house back to her; and notified him through the sheriff to quit the premises. In view of the positive testimony in court in 1942, she was obviously unable to return to court to attack her deeds on the ground of undue influence; but her lawyer drafted a deed of trust alleging that she had been induced to execute the deeds in 1941 and 1942 by imposition practiced upon her by Edward and Russell, and attempting to convey all of the properties which she had already conveyed, pledging that if Edward and Russell would convey their houses to the Farmers and Mechanics National Bank as trustee, then after her death the trustee would equally divide her estate among her children. She executed this instrument on March 29, 1944, and it was recorded on April 24, 1944. Russell accepted the proposition; Edward declined it. Mrs. Myers died on April 26, 1944, and the four children subsequently instituted this second suit to set aside the deeds.

Ordinarily, in the relation of parent and child, the parent occupies the dominant position, but where the natural position is reversed by the influence of time, so that on account of old age and feebleness the parent relies heavily upon the child for care and protection or for guidance in business affairs, then the child becomes the dominant party; and if the parent makes a gift to the child, it will be held void unless it is shown by the grantee to the satisfaction of the court that it was free and voluntary and the transaction was a fair and proper one. Upman v. Thomey, 145 Md. 347, 125 A. 860; Mead v. Gilbert, 170 Md. 592, 185 A. 668; Gerson v. Gerson, 179 Md. 171, 20 A.2d 567; Gaggers v. Gibson, 180 Md. 609, 26 A.2d 395; Williams v. Robinson, 183 Md. 117, 36 A.2d 547; Grimes v. Grimes, Md., 40 A.2d 58. There is no question that the relation of principal and agent is confidential where the agency includes the management of all the business affairs of the principal; and when a gift or other benefit is obtained by the agent and the principal afterwards alleges that it was obtained by the exercise of undue influence, the burden is on the agent to show the bona fides of the transaction. Brown v. Mercantile Trust & Deposit Co., 87 Md. 377, 390, 40 A. 256; Thiede v. Startzman, 113 Md. 278, 287, 77 A. 666. In the case before us the mother named her son as agent to attend to her properties and advise her in business affairs, and reposed confidence and trust in his judgment and integrity. Therefore, they stood in a confidential relation, and the burden was on the defendants to show that the transaction was fair and that the confidence was not abused.

This case does not come within the class of the great majority of cases where the grantor's mental and physical infirmity makes him easily susceptible to influence. In Cherbonnier v. Evitts, 56 Md. 276, for example, the grantor was helpless from senile dementia. Likewise, in Gaggers v. Gibson, 180 Md. 609, 26 A.2d 395, the grantor was 86 years old and very feeble. Here we have no question of mental capacity. The chancellor found that Mrs. Myers was fully competent to handle her affairs. While he said that he did not pass on the issue of undue influence in the first case, nevertheless it is obvious (1) that the grantor possessed unusual physical vigor for a person of her age, taking an automobile trip to Ohio after she had executed the deed in 1941, (2) that she had a strong will and determination, and (3) that she had the benefit of independent advice and fully understood the nature and effect of the instruments. In Maryland independent advice is not essential to the validity of a conveyance between parties occupying a confidential relation. Todd v. Grove, 33 Md. 188, 195; Zimmerman v. Frushour, 108 Md. 115, 69 A. 796, 16 L.R.A., N.S., 1087, 15 Ann.Cas. 1128; Williams v. Robinson, 183 Md. 117. 36 A.2d 547, 550. However, the question whether or not a donor of property where undue influence is alleged received disinterested and competent advice is a material question to be considered with other surrounding circumstances. Gaggers v. Gibson, 180 Md. 609, 26 A.2d 395; Hawkins v. Gray, 128 Ark. 143, 193 S.W. 509.

In the present case there is not a particle of evidence of persuasion. The grantor herself swore in the court below that at no time did Edward request or advise her to make any of the deeds now under attack. When specifically asked whether or not she had executed the deeds of her own free will, she declared: 'Of my own free will. No one knew anything about it. * * * Finally I made up my own mind, and the next day I called up Mr. Storm and told him I wanted to see him.' It is clear that the deeds were free from undue influence, and were the result of the desire of the grantor to give her property to those she felt were closest to her and were...