Schilling v. Waller

• Decision Date: 27 June 1966
• Docket Number: No. 344,344
• Citation: 243 Md. 271,220 A.2d 580
• Parties: Bertha SCHILLING et al. v. Delia WALLER.
• Court: Maryland Court of Appeals

Page 271

243 Md. 271

220 A.2d 580

Bertha SCHILLING et al. v. Delia WALLER.

No. 344.

Court of Appeals of Maryland.

June 27, 1966.

Joel H. Pachino, Baltimore (Irvin S. Friedman and Paul Weinstein, Baltimore, on the brief), for appellants.

William A. Hegarty, Baltimore, for appellee.

Before PRESCOTT, C.J., and HORNEY, MARBURY, OPPENHEIMER and McWILLIAMS, JJ.

MARBURY, Judge.

In April 1963 Charles Waller died intestate and was survived by a wife, Delia Waller appellee, as well as seven sisters and one brother. During his life the decedent and his wife rented a safe deposit box from the Mercantile Safe Deposit and Trust Company, of Baltimore, Maryland, to which both had keys and to which each had the right of access independently of the other. At the time of Charles Waller's death the safe deposit box contained: (1) various stock certificates valued at more than $50,000 in eleven different corporations, all of which indicated that Charles Waller was the owner, (2) a savings account passbook in decedent's name, showing a balance of $7500, and (3) a confessed judgment note payable to Charles Waller in the amount of $2500. The above listed three items of assets will hereinafter be referred to as the 'contents of the box,' although actually the box contained certain other items, not here at issue, which were in the joint names of Charles and Delia Waller.

On January 8, 1964, Delia Waller filed, in the Circuit Court of Baltimore City, a bill of complaint wherein she prayed that the court declare that the contents of the box were solely her property since ownership of these assets had passed to her by virtue of a gift inter vivos (alternatively claimed in an amended bill to be a gift causa mortis) from the decedent to her. ¹ The bill named as defendants the administrator of Charles Waller's estate, as well as the decedent's eight siblings. A hearing was held on this matter before Judge J. Gilbert Prendergast, and in an order dated May 27, 1965, the judge ordered, for reasons set forth in an earlier memorandum, that the administrator turn over the contents of the box, as well as the proceeds from the collection of the confessed judgment notes to Delia Waller. The decedent's brother and seven sisters, then instituted this appeal. At issue is whether the plaintiff-appellee had presented evidence sufficiently clear to prove that the deceased had intended to make a gift inter vivos of the contents of the safe deposit box.

The following undisputed facts were disclosed at the hearing: The decedent and Delia Waller had been married in 1929 and the marriage had been an harmonious one. During the latter part of their married life the couple had lived, rent free, in a house owned by Mrs. Selma Coplin, a sister of the plaintiff-appellee. The decedent had no animosity toward, but very little contact with, his brother and sisters during his married life. On March 30, 1963, Charles Waller, age seventy five, entered the University of Maryland Hospital, after having complained of incomplete digestion and nausea. On April 12, 1963, Mr. Waller was moved to the surgical ward of the hospital in anticipation of an exploratory operation expected to be performed three days later, but the operation was not performed because of the patient's death on April 13, 1963. An autopsy revealed that he suffered from carcinoma (cancer) of the stomach and arteriosclerotic heart disease.

Selma Coplin, who was called on behalf of her sister, the plaintiff-appellee, testified at the hearing that she and Delia Waller paid a visit to the hospital room of Mr. Waller on April 10, 1963. During his entire stay in the hospital, Mrs. Coplin testified, the patient talked about and was actively interested in the stock market. On this particular visit Mr. Waller was said to be in very jovial spirits and at one point an agent of a television rental service came to collect the rent for a set used in the hospital room. Mr. Waller was sitting on the edge of his bed at this time and asked Mrs. Coplin to get his checkbook out of a nearby cupboard so he could pay the bill, and he also said to her: 'While you're here, would you please go get my wallet.' This was done, and after the collector had left, Mrs. Coplin testified, on direct examination, that Mr. Waller then withdrew from his wallet a key to the safe deposit box here in question, and said to his wife:

'Delia, I want you to have the safe deposit key, you have one but I want you to have mine and I want you to have everything that is in the safe deposit box.'

She further testified that Mr. Waller then gave the key to his wife.

On cross examination of Mrs. Coplin the following colloquy took place:

'Q. Indeed, you have read this deposition before you came to Court, is that correct? A. Yes.

Q. I am questioning you from that deposition and in that deposition, starting on Page 14, Mr. Pachino (one of defendant-appellants' other attorneys) asked you the following question and you then gave the following answer. I will read the complete question and answer to you. 'Question. Then you heard, as I recall, the conversation that you and I had together, in which Charles said to Delia, 'You have your key, I want you to have mine, you will have to take care of the purse strings for awhile, take what you want,' is that correct?'

Then your answer: 'Answer. Yes, he says take everything you want (that) I have there, he said, because I won't be able to take care of things and I want you to have what is in there.'

Q. Is that correct? A. Definitely.

Q. Did he say that he wanted Mrs. Waller to take care of the purse strings for awhile? A. He said, 'I want you to take care of things, I want you to have everything that's in the box.'

Q. Did he say, 'I want you to take care of the purse strings for awhile?' A. He said, 'I want you to take care of the purse strings and I want you to have everything that's in the box.'

Q. Did he say, 'I want you to take care of the purse strings for awhile?'

(Mr. Hegarty): I object.

(The Court): Overruled. She has already said that as well as certain other things, is that correct?

(The witness): Yes. He said, 'I want you to have everything that's in the box, and you will have to take care of the purse strings for awhile.'

Q. Well, is the question and answer as I have read them to you, a true and correct statement of what was said in the room in the hospital that day? A. Yes.' (Emphasis added.)

At the hearing, the widow, Delia Waller testified that: Selma Coplin was present with her in the hospital room of her husband on April 10, 1963; a 'T.V. man' was paid on that particular afternoon; Mrs. Coplin had been asked to get a checkbook from the cupboard; Mrs. Coplin was still present after the 'T.V. man' left; and that her husband had made certain statements to her with reference to the key to the safe deposit box. She was properly not allowed to testify as to statements made to her in regard to the key because of Code (1965 Replacement Vol.), Article 35, Section 3, commonly referred to as the 'Dead Man's Statute,' which prohibits (with certain exceptions not here relevant) party witnesses from testifying as to transactions with the intestate.

There was no evidence, one way or the other, that at the time of the alleged gift (April 10, 1963) the decedent knew about the exploratory operation which was, on April 12 at least, scheduled for April 15. Moreover, there was presented no other evidence from which it could be found that the intestate thought that the end of his life was near. Thus, this alleged gift, if it can be held to stand, must be a gift inter vivos.

In the case of Whalen v. Milholland, 89 Md. 199, 211, 43 A. 45, 50, 44 L.R.A. 208, our predecessors used the following language, which is also apposite here:

'Mindful of the facility with which, after the alleged donor is dead, fraudulent claims of ownership may be founded on pretended gifts of his property asserted to have been made while he was living, it is but a salutary precaution which demands explicit and convincing evidence of every element needed to constitute a valid donation, whether it be a donation inter vivos or mortis causa. Even then fraudulent claims may prevail, but the rigid requirement of the clearest proof will...