Russell v. Carman

• Decision Date: 18 November 1910
• Citation: 78 A. 903,114 Md. 25
• Parties: RUSSELL v. CARMAN et al.
• Court: Maryland Court of Appeals

78 A. 903

114 Md. 25

RUSSELL v. CARMAN et al.

Court of Appeals of Maryland

November 18, 1910

Appeal from Circuit Court of Baltimore City; Henry Stockbridge Judge.

Suit by Ann Elizabeth Russell against Nellie E. Carman and others. From a decree for defendants, complainant appeals. Reversed and remanded.

Argued before BOYD, C.J., and PEARCE, SCHMUCKER, BURKE, THOMAS PATTISON, and URNER, JJ.

Robert P. Graham, for appellant.

Julius H. Wyman, for appellees.

PEARCE J.

The bill in this case was filed by the appellant, Ann Elizabeth Russell, praying that a deed executed by her, conveying certain real estate to her sister, Maria Louise Russell since deceased, be set aside and annulled on the ground that its execution was procured by misrepresentation and fraud practiced upon her by her niece, Nellie E. Carman. The bill alleges that the plaintiff and her said sister, Maria Louise Russell, were on the date of the execution of said deed, September 25, 1906, seised and possessed as joint tenants, and not as tenants in common, of certain real estate and leasehold property in Baltimore city, and that she was induced to sign her name to a paper then presented to her by said Nellie E. Carman, who assured her that said paper was the will of her said sister, Maria Louise Russell, and that she had no knowledge of the contents of the paper or of its character until after the death of her said sister, in September, 1907. The bill further alleges that on October 2, 1907, said Nellie E. Carman filed in the orphans' court of Baltimore city a paper purporting to be the will of said Maria Louise Russell, which was admitted to probate, and in which said Maria Louise Russell devised and bequeathed all her estate to said Ann Elizabeth Russell for her life, and, after her death, to the defendants Wm. R. Magers, Fannie D. Magers, Ida A. McCrone, and Nellie E. Carman, children of the deceased sister of the testatrix, whose name was Mary R. Magers, and by which will said Nellie E. Carman was appointed executrix without bond, and was authorized upon the death of Ann Elizabeth Russell to sell all said property, and divide the proceeds among the parties last named above. The bill further alleged that said Maria Louise Russell was in bad health and of feeble mind, and that said deed and will would operate to deprive the plaintiff of the estate which she would take by survivorship on the death of her said sister in the property described in said deed, unless set aside for the fraud practiced in procuring its execution. A copy of said deed was filed as part of the bill, and it appears from the recitals of that deed that the property in question was conveyed to said Maria Louise Russell, Ann Elizabeth Russell, and Josephine A. Russell by two deeds from J. Hooper Edmondson, one dated January 16, 1903, and one dated February 24, 1903, duly recorded, and it appears in the evidence that Josephine died in 1904 and Maria Louise in 1907, leaving the plaintiff the sole surviving grantee under said deeds last mentioned.

Wm. R. Magers and Fannie D. Magers, two of the defendants, and also two of the four beneficiaries under the will of Maria Louise Russell, filed separate answers, admitting the allegations that at the date of the execution of the deed of September 25, 1906, Ann Elizabeth Russell and Maria Louise Russell were seized as joint tenants of the property in question, and, as to the allegation of fraud in procuring its execution, their answers stated that "from their information they believed the charges of fraud to be true."

Mrs. McCrone answered, alleging that she had no knowledge of the joint tenancy mentioned in the bill, and neither denied nor admitted it. She averred that she knew Maria Louise Russell collected and received all the rents of this property during her life, and that she never knew of any interest of Ann Elizabeth in said property. She disclaimed any knowledge of the execution of the deed of September 25, 1906, but indignantly denied the imputation of fraud to Mrs. Carman.

Mrs. Carman answered, neither admitting nor denying the alleged joint tenancy, but denying that Maria Louise was of feeble mind, and averring that she was of sound and disposing mind when said will was executed and at all times. She averred that she collected all the rents from said property, and paid them over to Maria Louise as the owner of the property. She denied all fraud or misrepresentation as charged, and alleged that at the time said deed was executed it was read and explained to Ann Elizabeth, who knew and understood its contents and purpose.

The testimony covers 130 printed pages of the record, and involves many contradictions. It is conceded by all the parties that the disputed property originally belonged to Henry Fowble, an uncle of Josephine, Maria Louise, and Ann Elizabeth, and that it was left by his will to Josephine, Maria Louise, and their brother George Russell, who has since died, and whose widow holds her dower in his share. It also is established by the admission of Mrs. Carman upon cross-examination that about six weeks after the execution of the will of Maria Louise, on July 31, 1906, Mrs. Carman found among the papers of Ann Elizabeth a deed of this property from Josephine and Maria Louise to one J. Hooper Edmondson, and also a deed or deeds from him reconveying this property to them, and she testifies that she delivered these deeds at once to Ann Elizabeth and Mary Louise, both of whom declared they knew nothing up to that moment of the existence of such papers, and that both of them declared their purpose "to rectify it," and that the deed of September 25, 1906, was executed by Ann Elizabeth for the purpose of conveying any interest she might then or thereafter have in the property to Maria Louise.

Ann Elizabeth testified that, before Josephine's death in 1904, Josephine had a deed made by which this property was to go on Josephine's death to Maria Louise, and on her death to go to Ann Elizabeth. After Josephine's death, Ann Elizabeth and Maria Louise lived with Mrs. Carman for a time, and during that period in 1906 she testified that Mrs. Carman took her to the office of some lawyer whom she did not know, and whose name she could not remember, to sign a paper which Mrs. Carman said was a will of Maria Louise; that the paper was not read by her, nor read or explained to her by any one, and that she signed her name, believing it to be her sister's will, though her sister had never said anything to her about a will. She said Mrs. Carman collected all the rents and paid them to Maria Louise during her life, and that since her death she had only received about two months' rent from Mrs. Carman, who said she was putting the rents in bank.

Miss Fannie Magers testified that on Thanksgiving day in November, 1906, Mrs. Carman visited her and her brother Wm. R. Magers at their residence in New York City, and that at that time Mrs. Carman said to her in her bedroom: "I have something to tell you. You know that will that Will drew up and Mr. Graham had made. It was no good, and I have had it changed, and I have had a will drawn, and I have been terribly worried over it, and I have come to explain it." And she said: "If my Aunt Elizabeth got the money in her possession, she knew what she would do with it, and she didn't want it disposed of in that way, and she said she had it fixed." Miss Magers asked her if Aunt Elizabeth knew it, and she said "she did not," and she said "she didn't want her to know it; that she would get excited over it." Miss Magers further testified that subsequent to the death of Maria Louise she went to her funeral in Baltimore, and the evening of the funeral Mrs. Carman and Mrs. McCrone called her in the next room, and said Ann Elizabeth "would receive the money from the rents and she wouldn't know the difference," and Miss Magers replied the will would be read to her aunt, "and she would be rewarded some way," and that Mrs. Carman and Mrs. McCrone told her not to say anything about the will. On cross-examination Miss Magers said her Aunts Maria Louise and Josephine told her that they had employed Mr. Graham to draw a deed, and that "it was all fixed, one for the other, and the longest liver would receive it all."

Wm. R Magers testified that before the death of his Aunt Josephine he came on from New York in 1903; "that Aunt Joe wanted her affairs fixed, and her whole mind was that whenever she or whoever died first, to have some kind of document drawn so that it wouldn't get into court; that he, with request, had Mr. Graham draw up the paper which was read and discussed to them, and which they signed and it was recorded, and that Aunt Joe was the head of the family, and attended to all the business." He further testified that Mrs. Carman was at his house in New York on Thanksgiving day 1906, that she came into the library in the evening, and told him "that she had a paper drawn up and had Aunt Elizabeth to sign it, and that she had told Aunt Elizabeth it was Aunt Lou's will she wanted her to sign; *** that she did not read it to her--it would just upset her and do no good--that she did not tell him anything about the contents of the paper, but asked him if he thought she had done right, and that he, knowing about the former documents that were drawn up, replied that he presumed it was all right." He further testified that shortly after the death of Maria Louise he went to Baltimore, and Mrs. Carman told him Aunt Maria had left a will, and asked him to open it, which he did and read it to Aunt Elizabeth, Miss Magers, and Mrs. Carman; "that there were some hard things said on both sides, especially by Mrs. Carman, who said she had done it for the best," and that he knew nothing about the deed from Ann Elizabeth to ...