Zimmerman v. Freshour
| Decision Date | 13 May 1908 |
| Citation | 69 A. 796,108 Md. 115 |
| Parties | ZIMMERMAN v. FRESHOUR. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Frederick county, in Equity; John C Motten and James B. Henderson, Judges.
Suit by Charles E. Freshour, administrator de bonis non of Mary C Freshour, deceased, substituted plaintiff of Ulysses G Freshour, deceased, against Clayton M. Zimmerman. From a decree for complainant, defendant appeals. Reversed, and bill dismissed.
Jacob Rohrback, for appellant.
Charles C. Waters and Wm. P. Maulsby, Jr., for appellee.
The bill in this case was filed by the appellee as administrator d. b. n. of Mary C. Freshour, deceased, against Clayton M Zimmerman, in the circuit court for Frederick county, alleging that said Zimmerman was the confidential agent of the said Mary C. Freshour from the year 1894 up to the date of her death in December, 1904, and that as such agent he attended to all her business affairs during the whole of this period. It further alleges that during the month of March, 1897, said Zimmerman obtained from the said Mary C. Freshour by way of gift, but through an abuse of the confidential relationship alleged to exist, the sum of $1,500; that said alleged gift was not the free and voluntary act of said Mary C. Freshour, and was fraudulently procured, and has ever since been fraudulently withheld. The prayer of the bill is that the defendant be compelled to pay to the plaintiff the said sum of $1,500, with interest from March, 29, 1897, and for such other and further relief as the case should require. The defendant answered the bill under oath, admitting that he had received from Mary C. Freshour as a gift, on March 29, 1897, the sum of $1,500, and that he had transacted many items of business for her during many years, but averred that the alleged gift was her free and voluntary act, and that it was not obtained by any act of fraud on his part, or any abuse by him of any confidential relation existing between them. A large mass of testimony was taken before an examiner, and after hearing a decree was passed setting aside the alleged gift, and requiring the defendant to bring into court said sum of $1,500, to be paid to the plaintiff, and this appeal is from that decree. It appears that Mary C. Freshour entered the family of Ephraim I. Zimmerman, the father of the defendant, as a domestic, in the year 1862, when she was about 18 years of age, and continued in the service of that family until her death in 1904. The defendant was born in 1867 and was married in 1888, when Miss Freshour left old Mr. Zimmerman's house and went to live with the defendant, where she ever afterwards lived, and where she died. The undisputed evidence is that she was devotedly attached to him from his birth, and that her affection never faltered, but continued undiminished until her death. Mr. Thomas, who taught school near there and boarded in the family when the defendant was an infant in arms, testified that "she cared for him and thought as much of him as a mother could think of a child," and he spoke from a continuous experience of six years while boarding in the house. He continued to live near them always after ceasing to board there, and testified that she was always treated as a member of the family and enjoyed as many privileges as Mr. Zimmerman's daughter, and in answer to a question whether he knew anything of the relations existing between her and the defendant during the latter years of her life said: "They were the same in her last years as they were when Clayton was a baby." George West, a colored man employed in the defendant's own family for a number of years, whose testimony was intelligent and evidently unbiased, said: When asked to explain what he meant by the last expression, he replied: "If he were going to do any work about the house or place, and if she wanted it done different from what he intended to do it, he would do it, and I never heard him give her a cross word." Hester Zimmerman, defendant's sister, testified that "she was as good to him as a mother; would not let him be abused in any way." She said even after he became a man Mary would "watch after him for fear he would get hurt," and in illustration of this said that when he was about to climb upon the house to put on some yellow wash she said he should not do it, and she would pay some one out of her own pocket to do it, and on another occasion the same was said by her when he was about to go down a well to clean it out. There is an allegation in the bill of complaint that this sum of $1,500 was obtained as a loan, and was not intended by Miss Freshour as a gift, but this is not sustained by a particle of evidence. Samuel Gover did testify that the defendant told him he had once borrowed some money from Mary, but that this was about the time he began farming. He also testified that on one occasion when he wanted some change to pay his hands defendant told him he thought Mary could change some money for him as he had just given her her interest money, but when pressed to say if defendant spoke of interest on borrowed money he said he did not, and he emphasized the fact that defendant had previously told him he attended to her bank business, and that "he had just given her her interest not long ago; and it appeared from the testimony of the officers of the bank in which Mary kept her accounts that the semiannual interest thereon was always paid through the defendant.
The evidence shows that the only business Mary had was the management of her bank account, and that for this purpose the defendant was her duly authorized agent, and in this respect only sustained a confidential relation to her. The evidence also shows that she received regular agreed wages for her services up to a year or two before her death, but when her health failed and she became unable to work she declined to receive wages, and only received her board without charge. She was not educated, and perhaps might be classed as illiterate; but she could read, and could manage to write though it is not clear that she could read writing. Mr. Thomas, whose opportunities to know were ample, and who is in no manner interested, testified he had observed her reading books and papers, and had heard her relate what she read in the newspapers, and he mentioned the Bible, the Reformed Church Messenger, the Examiner, and the Frederick Times as books and papers she was accustomed to read. The history of this transaction must be gathered from the testimony of others than the defendant, as he was clearly incompetent under the provisions of our Code to testify in this proceeding as to any transaction had with or statement made by her, and this practically eliminates all of his own testimony of any importance. It had its origin in the purchase by the defendant of what is called in the testimony the "Taylor property." Calvin Thomas says: Mr. Thomas was then a member of this church consistory, and had full knowledge of all these facts, and Miss Freshour was a member of and a contributor to this church. Hester Zimmerman's statement of the transaction may be best given in her own words. She said: The property was purchased by defendant for $1,741, of which amount $1,500 was the proceeds of the $1,500 check of Mary, and it appears from the bank account of Mary that she had at that time only $1,855 to her credit. It also appears from Hester Zimmerman's account that when this check was given Mary said she would take the rent of the Taylor house, $60 a year, and that this rent was accordingly paid her from March 29, 1897, until May, 1904, when she refused to receive it any longer, saying she felt she was then a burden upon Clayton, having before that become unable to work, and having ceased to work for wages. The rent of this house it appears was collected by this witness from the various tenants, and by her paid to Mary...
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