Willoughby v. Trevisonno

• Court: Maryland Supreme Court
• Writing for the Court: Before SOBELOFF; COLLINS
• Citation: Willoughby v. Trevisonno, 202 Md. 442, 97 A.2d 307 (Md. 1953)
• Decision Date: 10 June 1953
• Docket Number: No. 136,136
• Parties: WILLOUGHBY v. TREVISONNO et al.

Page 442

202 Md. 442

97 A.2d 307

WILLOUGHBY v. TREVISONNO et al.

No. 136.

Court of Appeals of Maryland.

June 10, 1953.

Alex Steinhorn, Baltimore, for appellant.

Joseph Loeffler, Baltimore (Benjamin L. Berman and Harry E. Goertz, Baltimore, on the brief), for appellees.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from an order sustaining a demurrer and dismissing appellant's bill of complaint.

On October 8, 1952, the appellant, Theresa Willoughby, filed a bill of complaint in which she alleged for the purposes of this case the following: On March 22, 1949, Elvira Trevisonno, the mother of the appellant, caused to be executed a deed in fee simple conveying the real estate at 207 South Exeter Street in Baltimore to Elvira Trevisonno for and during the term of her natural life, with full power and authority unto the said Elvira Trevisonno, at any time or times during her said lifetime to sell, lease, mortgage, convey or otherwise dispose of the same or any part thereof (said power to extend to the sale, lease, mortgage, conveyance or other disposition of the remainder or remainders as well as of her life estate therein), and from and immediately after the death of the said Elvira Trevisonno as to so much thereof as shal not have been disposed of in the execution of the aforesaid power unto Theresa Willoughby and Viola Trevisonno as joint tenants and not as tenants in common, their assigns, the survivor of them and the survivor's heirs and assigns forever in fee simple, subject to the condition that the said remaindermen pay the sum of $500 upon a sale of the property unto Anna Mary Lazarowicz, another danghter of the said life tenant. After the execution of said deed the said Elvira Trevisonno, sixty-four years of age at the time of the filing of the bill, suffered a cerebral hemorrhage, resulting in complete paralysis of the upper and lower extremities on the right side, which impaired her ability to articulate. The said Elvira Trevisonno is unable to read, write or understand English language, and is now, and has been since said stroke, incapable of managing her own affairs. After said stroke Elvira Trevisonno was removed from her home at 207 South Exeter Street where she had lived with the appellant and has since resided at the home of Anna Mary and Sylvester T. Lazarowicz, her husband, together with the said Viola Trevisonno, where the said Elvira Trevisonno is receiving medical attention. Due to her fiancial circumstances the appellant has been unable to contribute to the support of her mother, but on the contrary, her mother has always cared for, protected and interceded for the appellant. Although the appellant has made numerous attempts to visit her mother, both individually and through her counsel, the said Sylvester T. and Anna Mary Lazarowicz have displayed toward the appellant a bitter and relentless animosity and have refused and do refuse to allow the appellant to visit her mother. On or about the 19th day of April, 1952, the appellant filed a petition in inquire into the competency of the said Elvira Trevisonno, which proceeding is still pending. On or about May 9, 1952, the said Viola Trevisonno, Anna Mary Lazarowicz and Dora Mirabele, another sister of the appellant, filed an answer in said proceedings denying that Elvira Trevisonno was of unsound mind but alleging that she was incapable of managing her affairs. As a result, Benjamin L. Berman, Esquire, was appointed trustee of the estate of Elvira Trevisonno with powers to manage her affairs. On subsequent petition of said trustee, alleging that the court was without power to appoint him as such trustee without the direct consent of the said Elvira Trevisonno, the court passed an order rescinding the previous order appointing said trustee. Several days after the passage of this rescinding order a deed dated August 26, 1952, was recorded among the land records of Baltimore City purportedly executed by the said Elvira Trevisonno by her 'X' mark conveying said Exeter Street property to William Hoffenberg in fee simple. Immediately following said deed was recorded a deed from the said William Hoffenberg reconveying the said property unto Elvira Trevisonno for her life with full power of disposition during her lifetime with remainder unto the said Viola Trevisonno along. After the recording of said deeds there appeared upon the land records of Baltimore City a deed dated September 23, 1952, purportedly executed by the said Elvira Trevisonno by her 'X' mark conveying the said property to William Hoffenberg in fee simple. Immediately following this deed was a deed from the said William Hoffenberg reconveying said property unto Viola Trevisonno in fee simple and absolutely. All of the said deeds, except that first executed on March 22, 1949, 'were procured from the said Elvira Trevisonno, an alleged incompetent, by the exercise of undue influence over her by reason of her infirm condition, weakended mind, her inability to talk, and her complete dependence upon the continued good-will and the care provided by the said Viola Trevisonno, Anna Mary Lazarowicz and Sylvester T. Lazarowicz. That said deeds were procured with the intent to deliberately harass your complainant, to evict her from said property, and to sell or rent said property and divert the income or purchase price therefrom to their own use and benefit.' Said deeds will divest the said Elvira Trevisonno of all her interest in said property which constitutes substantially all of her estate and will divest her of all control of its disposition, use and profits and income therefrom. Said deeds, if allowed to stand, will divest the appellant of any and all interest and estate which she may have, either vested or in expectancy in said property, and will result in her immediate eviction therefrom, all contrary to the true wishes of her mother, Elvira Trevisonno, as indicated by her actions toward the appellant at the time when she was in full possession of her faculties.

The bill prayed that all the deeds except that dated March 22, 1949, aoresaid, be declared null and void and that Viola Trevisonno be restrained and enjoined from mortgaging, selling, leasing or in any other manner disposing of the Exeter Street property or proceeding in any action at law to evict the appellant from said premises pending the conclusion of these proceedings. There was also a prayer for other and further relief.

On October 16, 1952, a demurrer was filed to this bill of complaint alleging that the appellant had not stated such a case in said bill to entitle her to any relief; that said action is not maintainable by appellant; that the allegations of said bill with respect to undue influence and the mental incapacity of Elvira Trevisonno are vague, uncertain, and indefinite. After hearing before the chancellor an order was passed on November 14, 1952, sustaining the demurrer with leave to the appellant to amend. Appellant, having waived her right to amend and having elected to stand on her bill of complaint, the chancellor on November 20, 1952, by decree dismissed the said bill. From that decree the appellant appeals. Of course, for the purposes of the demurrer all the well pleaded matters are considered as true.

The appellees contend that the appellant does not have such an interest in the property as entitles her to bring this action.

In Riley v. Carter, 76 Md. 581, 25 A. 667, 19 L.R.A. 489, relied on by the appellees, a bill of complaint was filed on behalf of creditors for the purpose of setting aside two deeds by John Nicholson on the ground that they were void against creditors. The appellees quote the following from that case in their brief: 'If the lunatic be alive, and have no guardian, no one then but the lunatic himself is entitled to take action, and he is the one most unlikely to do so. It is only after death that the privies in blood or estate can exercise this right.' However, immediately after that quotation, this Court said the following: 'We think reason and justice alike demand that under such circumstances the creditors, unless restrained by the provisions of the insolvent laws, are entitled to proceed by appropriate remedy for the protection of their rights. It is not the policy recognized by the courts of the present day to limit the right of inquiry; to the contrary, they seek to give practical application to the maxim, 'ubi jus ibi remedium'. Chief Justice Holt in Ashby v. White, 2 Ld.Raym. 952, observes that when a man has a right, he must have a means to vindicate, and maintain it, and a remedy, if he is injured in the exercise and enjoyment of it.'

The appellees also rely strongly on the case of Sellman v. Sellman, 63 Md. 520. There Joshua Sellman, who was alleged to be a very old and infirm man and clearly under the control and undue influence of his comparatively young second wife, not the mother of his children, executed two deeds. His children and grand-children filed a bill, during Joshua's lifetime, for the purposes of declaring said deeds void as having been procured from Joshua Sellman by fraud and undue influence. This Court sustained a demurrer dismissing the bill and pointed out that it was a fundamental principle of equity that to entitle a party to sustain a bill he must show an interest in the subject of the suit, and the children and grand-children of the living ancestor could not claim a right to maintain a suit in respect to the property of that ancestor while their interest in such property was merely an expectancy depending upon a future inheritance that possibly may never occur. No one is entitled to be recognized as an heir until the death of the ancestor or the person from whom the property may descend and the fact that such ancestor or other person may be alleged to be a non compos mentis or otherwise incapable of managing his estate makes no exception to this general principle. ...