Aetna Casualty & Surety Co. v. State

Sloan, J., delivered the opinion of the Court. This is a suit brought by the State, for the use of Pauline Hendrichs, against the Aetna Casualty & Surety Company, surety on the bond of the administrators of the estate of her husband, John E. Hendrichs, deceased, to recover her distributive share of his estate. The declaration charges that Henry E. Hendrichs and Harry O. Ralben filed in the Orphans’ Court of Baltimore City their first and final account as administrators of the estate of John E. Hendrichs, deceased, wherein they charged themselves with the distribution to Pauline Hendrichs of her “spouse statutory allowance, $J5.00,” and a distribution “to Pauline Hendrichs, widow, one-third cash, the sum of $6,041.30,” and that the distributions or any part thereof have not been paid. The defendant, appellant, pleaded the general issue, pleas of never promised, never indebted, payment, release, and limitations.

The plaintiff joined issue on the first and second pleas, and traversed the third and fourth, saying1 to the fourth plea “that the alleged deed of release was procured by the deceit, misrepresentation and fraud of Henry E. Hendrichs and Harry C. Kalben, Administrators,” etc. There was a demurrer to the plea of limitations, which was sustained. On the trial, the judgment being in favor of the ⁵¹ plaintiff for the amount claimed, with, interest, the defendant appealed. John E. Hendrichs died intestate August 16th, 1926, leaving surviving his widow, Pauline Hendrichs, the equitable plaintiff, and a son, Henry E. Hendrichs. Letters of administration were granted to' the son, Henry E. Hendrichs¡, and Harry C. Kalben, a member of the Baltimore bar, on August 20th, 1926.

By renunciation dated August 19th, 1926, Mrs. Hendrichs renounced her right to administer her husband’s estate and requested the appointment of her son and Mr. Kalben. They qualified and filed their bond with the appellant as surety. An inventory filed September 20th, 1926, showed assets appraised at $20,376.72. The amount accounted for was $20,454.97.

The distributions, according to the first administration account filed March 19th, 1926, after deducting orphans’ court costs, spouse’s statutory allowance, $75, income taxes, $496.41, administrators’ commissions, $1,409.83, and state tax, $201.09, in all $2,422.11, left to Pauline Hendrichs, widow, one-third, or $6,041.30, and to Henry E. Hendrichs $12,082.56. Included in the distribution to Henry E. Hendrichs were all the shares of stock at the appraisal of $1,986, and a Dodge sedan ap>praised at $400. The consent of the mother to- the distribution in kind to her son, signed by Mrs. Hendrichs, was filed with the account. In the record are two releases, signed, sealed, and acknowledged by the distributees, both dated November 24th, 1926, Henry E. Hendrichs’ acknowledgment bearing the same date.

Mrs. Hendrichs’ acknowledgment is dated November 26th, 1926. The signatures were witnessed by Meyer Steinberg, the notary by whom the acknowledgments appear to have been taken. The checks for both distributees are dated November 24th, 1926. The checks, signed by Henry E. Hendrichs and Harry E. Kalben, to Mrs. Hendrichs, are indorsed “Pauline Hendrichs” in her handwriting, and below her indorsement on each check is stamped “for deposit only to the credit of Henry E. Hendrichs.” The check for the spouse’s allowance, $75, was cashed or deposited at the American Trust 'Company on December 10th, ⁵² 1926, and paid by the Liberty Street branch of the Merchants’ National Bank December 12th, 1926.

The check for Mrs. Hendrichs’ distributive share of the estate, $6,-041.30, was deposited in the Merchants’ National Bank to the credit of Henry E. Hendrichs’ personal account December 10th, 1926. One of the checks to Henry lE. Hendrichs was deposited November 27th, 1926, and the other on November 29th, 1926. While the replication to the fourth plea charges Henry E. Hendrichs and Harry C. Kalben with procuring the release from Pauline Hendrichs by deceit, misrepresentation, and fraud, none of the testimony reflects on Mr. Kalben in any particular.

Asked what discussion she had with her son about the administration, Mrs. Pauline Hendrichs said: “Well, he came to me at that time and said, Mother, who should be administrator for you, and I said, Son, you have done all in your power all your life to be a good boy and I think I will let you take it, and he taken it. Q. Now what was said about Mr. Kalben at that time? A. He did not say anything at that time, but in a couple of 'days afterward he said, Mother, I have a very good lawyer for you and you don’t have to> worry because the lawyer and the bonding company will be right with you.” She said that up to that time she did not know Mr. Kalben, had never seen him. Then asked, “What papers were submitted to you to sign?” she said, “Well he used to bring home — -the first paper he brought home he said, Mother, you will have to sign this because it is for the Orphans’ 00111!:, it is a whole lot of red tape about it, but it does not concern you much but sign it here, and I signed it, but what it was I don’t know.” She was then shown what was the first paper in the administration, the renunciation in favor of her son and Harry C. Kalben, and, asked to identify her signature, said, “It looks very much like it, yes, sir.” Then asked what occurred between her and her son relative to the estate, she said: “Nothing.

I never knew anything; never knew anything at all about it; he never took me to the lawyer’s office or .anything.” She ⁵³ said she had never been in the office of Mr. Kalben at anytime. “JNo^ sir; I never put my foot in there.” Next, shown the paper consenting to- the distribution in kind toller son of the stocks and aiito-mob-ile, she- said: “He just told me to- sign it, he never told me anything.” Said nothing about tbe distribution, would not take her to the lawyer’s office; “I could not worry him because he is too- busy.” Asked if she did “not say to him that it would be all right if he wanted the stock and automobile for bim to bave it that way” ? she said, “I told him to- p-ut it all together and leave it all go- at one time.” Said she had no objection to- him having the stock, and then denied that she knew there- was some stock. It does not appear that there was any advantage gained by Henry E. Hendricbs in taking over the stock and the automobile at the ap-praisal. Presented the release for the spouse’s allowance of $15 and the distribution of $6,-041.30, and asked if the- signature to it was her’s, she said, “It looks like it, yes, sir.” When told that it recited that-she had acknowledged receipt of the sums of money named, she said, “I never got a cent at all.” “Q. Ho you recall what was said to you, if anything, at the time this release was signed? A. No, sir.

Q. Do yo-u recall what was said to you by yo-ur son ? A. I did not even know it was signed. He never- told me- anything.” Mrs. Hendricbs testified that on one occasion (and the contention of appellee is that it related to- the- execution of the release) the son phoned to her that some man was going to -call her up and that she should answer- the questions that he wanted her to- answer, and she- said, “What are the questions.? You tell me first, and then I will answer them, and just when I was re-ady to- answer him -some other gentleman came to the phone and he asked me several questions and of course I answered him according to what he asked me.

Q. What did he ask you? A. I oo-uld not recollect that any more.” Her attorney then undertook to sup-ply the- omission with the question: “But that is. the only time any one ever asked you if you signed any papers. Is- that what I understand yo-u to mean ?” to- which she answered, “Yes.” ⁵⁴ Mrs. Hendrichs was then questioned concerning the two-cheeks -drawn by the administrators to- her order, dated November 24th, 1926. 'She repeated that she had never been in Mr. Kalben’s office, and that he had never given her a check. She said the indorsement looked “very much like” her signature.

The signatures to- the three papers and the- indorsement on the checks were admitted by her counsel to be genuine. At the court’s suggestion she was asked: “Q. Have you any explanation to make of the signature on this check ? A. No. Q. Have yo-u any explanation to make why you signed it? A. No-, sir.

If I did sign it it was signed the same way as I signed the -other papers. Q. How was that ? A. Walk over and say quick, hurry up and sign it. He would never let me look on the other side hut just hurry up and sign it here, mother.

That is all. Q. You never gave him any of this money to use in the business ? A. No-, sir; because I never knew he was getting the money. Q. Does that apply to everything?

A. Yes, sir; because he always used to- tell me, Mother, there will be no money until the court is settled, until father’s estate is settled. He said that for almost three years.” It was two' years after the estate had been settled that Mrs. Hendrichs and her daughter-in-law, Bertha M. Hendrichs, went with Mr. Schoeneds, a member of the Baltimore bar, to the Orphans’ Court, where they were shown the accounts, and the consent and release were exhibited, and the daughter-in-law testified that her mother-in-law there said she did not remember signing them, and said nothing ns to how her signatures were procured. They then arranged ,a conference that afternoon at Mr. Schoeneis’ -office, when Mr. K-alben had the cheeks. The mother said she “did not sign any checks,” hut said they looked like her signature.

The younger Mrs. Hendrichs testified that to the mother’s inquiries the son had said it took two years to- settle an estate, and both testified that he just kept putting her off. His testimony was that at her lawyer’s office he was accused of forgery and swindling his mother out of her estate, whereupon he left the house iu which he had resided with his ⁵⁵ mother, wife, and son, and that he is now living apart from his family at Camden, N. J. „ On cross-examination of the elder Mrs. Hendrichs the following occurred: “Q. Now, Mrs. Hendrichs, I understand you to say that when you signed these various papers your •son simply did not tell you anything about them? A. No, sir. Q. He just said, .mother, sign this p'aper?

A. That is the idea. “Q. It is necessary for you to sign them— A. Necessary for you to sign them, all red tape for the orphans’ court and does not interest you a hit. Q. Of course, Mrs. Hendrichs, when you endorsed these checks, you of course knew they were checks, did you not? A. Yes, sir; I know they were cheeks. Q. You knew then you were endorsing the checks when you endorsed the checks ?

A. Yes, hut I did not know for what or anything else. Q. So all you did was. to. endorse a check because your son asked you to' endorse it. A. He asked me to endorse it.” She said she was a,t home when the checks were indorsed. With regard to the release;, she said, “I never read it..” He would not let her read it. “Many and many a time I asked him to read them and he just said he did not have time;” He would have the (news.) paper in his hand and cover that up and ask me to sign.” “Sotnetimes he had others folded.” “Q. Every time you signed something. — A. It was folded; he would tell me not to worry.

I have a good lawyer and he would see I would get all that was coming to me.” Then asked if “it did not occur to. you that it. was rather suspicious, that your son should come to you with a. newspaper and put it over a paper and ask you to sign it?” she answered: “Yes, it did look suspicious.” “Why did you sign them? A. In the condition I was in I suppose I signed it thinking he was. nice enough to take care of me. Q. In other words., Mrs. Hendrichs, at the time you signed these papers you had implicit confidence in your son ? A. I certainly did.” We have related substantially all the evidence upon which the plaintiff relies for a recovery, and the test to he applied in determining its legal sufficiency “is whether it is. of suffi ⁵⁶ eient probative force to> enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the plaintiff’s right.” (General Automobile Owner’s Association v. State, use of Penn, 154 Md. 204, 209 , 140 A. 48, 51 ) ; and “in deciding this question, the court was first to assume the truth of all the testimony given, to the jury, tending to sustain the plaintiff’s right to recover, and of all inferences of fact fairly deducible therefrom.” (Francis v. Outlaw, 127 Md. 315, 319, 96 A. 517, 519 ).

The evidence is contradictory, but, as it is not the province of this court to consider the weight of the evidence, our consideration of the record is solely with a view to ascertain whether there is legally sufficient evidence that the plaintiff was not paid her distributive share and widow’s allowance in her husband’s estate; or, assuming that there is no1 evidence ofi payment, the release was procured by fraud, deceit, or misrepresentation. Standard Motor Co. v. Peltzer, 147 Md. 509, 513 , 128 A. 451 . If the plaintiff produced legally sufficient evidence that she was not paid, and that the release executed by her was procured by fraud, then the case should be submitted to a jury. In this case there is a plea of payment, and the plaintiff’s right to- recover must stand or fall on this issue.

Even if the release were held to' have been procured by deceit, misrepresentation, or fraud, it would still be necessary for her to show she had not been paid. With the check given her having been negotiated with her indorsement, there is a presumption that it was given in payment of her distribution, and the burden is on her to- otherwise explain the transaction. Nealon v. Travers, 160 Md. 324 , 153 A. 44 . Merely saying that she was