Rippon v. Mercantile Safe Deposit & Trust Co. of Baltimore

Decision Date07 May 1957
Docket NumberNo. 142,142
Citation213 Md. 215,131 A.2d 695
PartiesJean Pauline RIPPON v. MERCANTILE SAFE DEPOSIT AND TRUST COMPANY OF BALTIMORE, Trustee, et al.
CourtMaryland Court of Appeals

William Saxon, Baltimore, for appellant.

Norwood B. Orrick, Baltimore (Francis D. Murnaghan, Jr., Baltimore, on the brief), for Mercantile-Safe Deposit & Trust Co.

Samuel J. Fisher, Baltimore (Joseph Bernstein, Baltimore, on the brief), for Sinai Hospital and Associated Jewish Charities.

J. Crossan Cooper, Jr., Baltimore, on the brief for Johns Hopkins Hospital and others.

Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

PRESCOTT, Judge.

This is an appeal by one of the respondents, Jean Pauline Rippon, from a decree of the Circuit Court No. 2 of Baltimore City, dated July 10, 1956, which declared valid the following documents: Deed of Trust dated December 29, 1938, executed by Louis and Simon Schloss; supplemental document dated April 2, 1943, executed by Louis Schloss; supplemental document dated November 25, 1946, executed by Louis Schloss; and which assumed jurisdiction over the administration and distribution of the trust created by said instruments, and the administration settlement of the estate of Louis Schloss, deceased.

During the year 1930, while three brothers, Max, Louis and Simon Schloss, kept their securities in a safe deposit box with the then Safe Deposit and Trust Company, they had meetings at various times with Mr. Marshall, who was then the senior Vice-President of the Safe Deposit and Trust Company, and Mr. Pausch, the present senior Vice-President, in reference to the execution of a deed of trust between the Safe Deposit and Trust Company and the three Schloss brothers.

A few days before April 8, 1931, the aforesaid Max, Louis and Simon Schloss appeared in the office of Mr. Harry N. Baetjer, a member of the Bar of the City of Baltimore and employed Mr. Baetjer to prepare a deed of trust, naming the Safe Deposit and Trust Company Trustee. On April 8, 1931, the said three brothers executed the said deed of trust prepared by Mr. Baetjer. Mr. Baetjer did not know the said three brothers prior to April, 1931, nor had he represented them before. At the time of execution of the aforesaid deed of trust, Max Schloss was 73 years of age, Louis was 70 years of age, and Simon was 63 years of age.

The trusts created in said deed of trust were not to become effective until the death of the last survivor of the three brothers, at which time the trustee was to take possession of the trust estate. It is unnecessary here to set forth in detail the provisions of said trust, other than to say they were revocable.

Max Schloss, the oldest of the three settlors, died in the year 1932. On August 31, 1933, about a year after the death of Max, the two surviving settlors, Louis and Simon Schloss, visited Mr. Pausch, who explained to them the tax consequences between irrevocable and revocable deeds of trust. The settlors did not care to make any changes in their deed of trust at that time. Nothing was done until 1936. In November, 1936, Mr. Baetjer suggested to the settlor that they execute an irrevocable deed of trust. On December 22, 1936, the two surviving settlors revoked the 1931 deed of trust and executed another, which was substantially the same as the earlier deed. This latter deed contained the same reservation to revoke.

On December 27, 1938, the two surviving settlors, Louis and Simon Schloss, handed over their securities and cash to the Safe Deposit and Trust Company, to be held subject to a deed of trust to be executed by them. In the meantime it was to be held subject to the order of the settlors. Two days later, on December 29, 1938, the third and last deed of trust was executed by the said two settlors.

On April 2, 1943, the survivor, Louis Schloss, delivered to the trustee one hundred sixty thousand dollars to hold subject to the provisions of the 1938 deed of trust for the four charitable beneficiaries named therein, to the exclusion of any of the other beneficiaries. On November 25, 1946, he executed a surrender of his right to veto investments to be made by the trustee. On December 27, 1954, Louis Schloss died, testate, at the age of 95 years.

Jean Pauline Rippon was made a party defendant because by Item IX of his will, Louis Schloss expressed the wish that the trustee under the deed of trust of December 29, 1938, would pay 'any tax indebtedness' of Jean Pauline Rippon. The trustee takes the position that the attempt by will to cast her tax liabilities on the trust is ineffectual and invalid, but the point is not involved in this appeal.

The six defendants named in the trustee's complaint are Sinai Hospital of Baltimore, Incorporated, Associated Jewish Charities of Baltimore, The Johns Hopkins Hospital, The Johns Hopkins University, Mitchell Stevan, Administrator, c. t. a. of the Estate of Louis Schloss, deceased, and Jean Pauline Rippon. In their answers, all defendants except Mrs. Rippon expressly consented to all of the relief prayed. Mrs. Rippon resisted the Court's assumption of jurisdiction over the trusts and asked that the bill of complaint be dismissed. She is residuary beneficiary under the will of Louis Schloss; therefore, she attacks the validity and existence of the trusts to the end that the trust assets will be added to Mr. Schloss' estate and pass to her under the will.

While the amount of money involved in the trusts is very substantial, the principal thereof as of April 5, 1956, being $2,525,556, neither the evidence nor the argument require that this opinion be unduly protracted, although all the contentions must be determined. The questions raised by the appellant for our decision are:

1. Did the Court err by obtaining evidence in this case before its trial?

2. Did Harry N. Baetjer, Esq., represent conflicting interests?

3. Was undue influence exerted on the settlors to create an irrevocable deed of trust?

4. Is the deed of trust, dated December 29, 1938, testamentary and void?

I

It is difficult to determine with certainty just what the appellant claims under this item. It seems, however, that she contends that the trial Judge read certain depositions taken on her behalf by her counsel before the trial, which depositions were not offered in evidence at the trial. This contention must be held to be without merit for at least two reasons. The record only discloses that the trial Judge read one of the depositions; and it further discloses that appellant's counsel knew of this fact and discussed it with the Judge, yet her counsel made no objection thereto in the trial Court. We do not ordinarily decide any point or question which does not plainly appear from the record to have been tried and decided by the trial Court. Former Rule 9, Gen. Rules of Prac. and Proc., now Rule 885 of the Maryland Rules of Procedure. In addition, this Court has frequently held that in the interest of the orderly administration of justice and to avoid useless expense to litigants, it is the policy of this Court not to reverse for harmless error, and the burden is on the appellant in all cases to show prejudice as well as error. Sieland v. Gallo, 194 Md. 282, 71 A.2d 45; Baltimore Transit Co. v. Castranda, 194 Md. 421, 71 A.2d 442. The appellant makes no effort to show unfairness or harm, and the record fully and amply supports every finding of fact by the trial Judge; so, if we assume without deciding, the reading of the depositions by the trial Judge before the trial were error, under the above circumstances, it would not be reversible error.

II

Appellants contend Mr. Baetjer was representing conflicting interests at the time he prepared the deed of trust for the settlors; that he failed to inform the settlors that the provision in the deed of trust to 'pay debts' did not include the payment of debts during the life of the survivor; that the five years waiting plan, mentioned below, was at the suggestion of counsel for the trustee; and that Mr. Baetjer should have advised them to obtain independent legal advise.

The general rule is that an attorney at law, who has been retained and received the confidence of a client, is thereafter disqualified from acting for any other person adversely interested in the same general matter, however slight such adverse interest may be, Derlin v. Derlin, 142 Md. 352, 364, 121 A. 27, but this adverse interest must be in its nature and sense hostile. antagonistic and conflicting with the interest of the former client. 7 C.J.S. Attorney and Client § 47, p. 823; 5 Am.Jur. Attorneys at Law, par. 65. And an attorney may represent two clients who desire the same result, although their interests vary in degree. Busey v. Perkins, 168 Md. 19, 25, 176 A. 474. The only testimony in this regard was that Mr. Baetjer was not general counsel for the Safe Deposit and Trust Company but had represented them 'from time to time in various matters'. See National Finance Co. v. Abernathy, Tex.Civ.App., 66 S.W.2d 358. There was no attempt to show that there was any representation of hostile, antagonistic or conflicting interests; that there was not a full disclosure of all of the facts to all of the interested parties; or that there was any unfair advantage taken of anyone. The record does not contain a shred of evidence that shows the slightest impropriety on the part of Mr. Baetjer. We consider the accusation of dual representation of conflicting interests completely unjustified and a very unfortunate act. Especially is this so when we consider the fact that neither of the settlors complained of any conflicting representation during a period of nearly sixteen years after the execution of the deed of trust of 1938, and the deed of trust is acknowledged by the last survivor in his will executed in March of 1954. In regard to the allegation that the five years plan was suggested by Mr. Baetjer, if we assume, without deciding, this fact to be true, the...

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