Belote v. Brown

Markell, J., delivered the opinion of the Court. This is an appeal by plaintiffs, in a suit to set aside a deed, from a decree dismissing the bill except for an accounting for rentals collected. All the questions presented depend upon questions of fact. Seventeen witnesses testified, one by deposition in Florida, the other sixteen in open court.

Much of the testimony is conflicting; most of the witnesses were interested or, as the lower court found, showed definite bias. Judge Charles C. Marbury, who heard the case, filed a careful and thorough opinion, in which he discussed the questions of law and fact and the weight and reliability of the testimony. He stated the case thus: “The bill of complaint in this case seeks to set aside a certain deed from Leona H. White to the defendants, dated November 29, 1944, and an undated agreement between the same parties, shown by the evidence to have been executed contemporaneously with the deed, for an accounting of rentals derived from the apartment premises conveyed in the deed, and for further relief. The original plaintiff, Sally Oliver, has died during the pendency of the case and upon the suggestion of her death other parties [possible successors in interest] have been substituted as plaintiffs.” “Mrs. Leona H. White, daughter of the original plaintiff, died on September 13, 1946, at the age of approxi ¹¹⁸ mately seventy-two years.

From 1924, at first as tenant by the entirety with her late husband, and thereafter as his survivor, until the date of this deed, she was seized and possessed of Lot 15, Block 46, of the subdivision known as Fletcher’s Addition to Takoma Park. This lot was improved by premises No. 7213 Flower Avenue, built in 1924, having an English basement and two stories above, which was divided so as to comprise six apartments, at a gross rental of $190.00 monthly. After the death of Mrs. White’s husband she continued to occupy one of the apartments, containing six rooms, in the building and seems to have been successful in renting the others. “In February, 1942, Mr. and Mrs. Brown, the defendants, and their two children, rented a portion of the basement apartment occupied by Mrs. White, at first at a monthly rental of $20.00, which was reduced to $15.00 in consideration of certain services performed by Mr. Brown by way of tending the furnace and working in the surrounding yard, including taking care of Mrs. White’s flowers. The Browns had a kitchen and dining room, as well as sleeping quarters, but shared a living room with Mrs. White.

It appears from the testimony that up until November 1944, when the deed in question was executed, Mr. Brown frequently assisted Mrs. White in repairing the plumbing and refrigeration in the building at some saving of expense to her. “Mrs. White’s closest relatives were her aged mother, Sally Oliver, now deceased, and a number of nieces, and great nieces, as well as a stepson, who testified in the case. It was variously testified that during the latter part of October or early November 1944 Mrs. White suffered a slight ‘stroke’ or ‘spell’ due to a chronic condition of arterio sclerosis, from which she had been suffering for a number of years. It appears that Mrs. White, because of this change in her physical condition, decided that she needed the assistance of someone to carry on her business, involving the rental of the apartments under the war-time conditions, as well as her household ¹¹⁹ work in maintaining the portion of the apartment occupied by her as her separate home. She first proposed to her niece, Mrs. Sadie L. Ward, who was a graduate nurse, and who lived a short distance from her in Takoma Park, that she would turn over the property to her if Mrs. Ward would come and take care of her.

The latter replied that she would have to think it over, and Mrs. White informed her that she would give her a few days because the Browns were going to move at the end of the month. Mrs. Ward testified that she did not accept the proposition because she had two children to support and could not earn sufficient to enable her to accept. Mrs. Brown testified that she said to Mrs. Ward if she would come in and take care of Mrs. White the Browns would move out right away. From the testimony it appears that no other member of her family was in a position to accept a similar proposition and take over the premises and care for Mrs. White. [Plaintiffs contend that another niece, Mrs. Hamilton, was in a position to do so, but her testimony does not support this contention and, we think, indicates the contrary.] “At about the same time the Browns indicated that they would like to vacate the apartment and move elsewhere. [Plaintiffs contend that there is no evidence that the Browns had found a house and intended to move; this contention, we think, is immaterial.] Mrs. White, who had been on friendly terms with the Browns, then proposed that she deed the apartment house to them, reserving a life estate together with the right of occupancy and the rents, issues, and profits therefrom, and enter into an agreement with the Browns whereby they should furnish board and meals to Mrs. White for a consideration of $40.00 per month and the Browns pay her rent for the basement apartment at the rate of $15.00 per month.

In addition the Browns were to agree [in consideration of the deed] to furnish Mrs. White such care, * * * nursing, [general attention] and personal assistance as her condition and extremities might require so long as she might live. ¹²⁰ “The evidence shows that Mrs. White, during the month of October, 1944, sought the independent advice and counsel of Mr. Carey E. Quinn, a member of the Bar. She was taken to Mr. Quinn’s house on one occasion, as well as to his office, by Mr. and Mrs. Brown. These conferences resulted in the preparation of the deed and agreement in question by Mr. Quinn, and the execution of these instruments at Mrs. White’s apartment on November 29, 1944, when there were present, in addition to the parties, Mr. Quinn and a notary public, Ruth B. Drake, who subsequently married, and testified as Ruth Drake Stauffer. “At the request of members of Mrs. White’s family, on July 14, 1946, she was examined as to her mental competency by Drs. J. Marion Bankhead and G. Burton Queen, who certified that she was incompetent, unable to handle her own affairs, that the cause of such incompetency was cardio renal disease, and that such incompetency was permanent and would likely last until death.

These certificates were attached to a petition filed in this Court on July 23, 1946, by Sadie L. * * * [Ward (?)] and Fred A. White, stepson of Mrs. Leona H. White, which resuted in the degree of August 20,1946, adjudging her incompetent by reason of mental disability and appointing Ralph G. Shure and Leona L. Hamilton, Committee of her estate. As above stated, Mrs. White died less than a month later, on September 13, 1946, and the bill in this case was filed November 2 of the same year. “The plaintiffs contend that the deed and agreement as to care should be set aside for the following reasons: 1. Failure of consideration. 2. Lack of mental capacity on the part of Mrs. White to execute a valid deed or contract on November 29, 1944. 3.

Undue influence resulting in the execution of those instruments in favor of Mr. and Mrs. Brown. 4. The existence of a confidential relationship as between Mrs. White and the Browns, giving rise to constructive fraud on their part so as to vitiate those in ¹²¹ struments and make it inequitable that the Browns retain the property conveyed by the deed, or the rents and profits therefrom. After careful observation of the witnesses who testified in open Court, as well as after reading the transcript of testimony, the Court has reached the conclusion that the plaintiffs have not presented a case which would justify the Court in striking down the deed and the agreement in this case. Of the thirteen witnesses who testified for the plaintiffs, with the exception of Dr. Queen, Mrs. Stauffer, the notary public, and Mr. Howard, the banker, the witnesses consisted of three nieces, two great nieces, the stepson of Mrs. White, and four tenants.

Such information as the members of the family were able to give with reference to the period when the Browns occupied the apartment during Mrs. White’s lifetime was derived from infrequent visits, and was found to have little probative value. These witnesses were certainly not disinterested parties and many of them, as well as the four tenants who testified, showed definite bias.” On the question of mental capacity plaintiffs rely chiefly upon the adjudication of incompetency on August 20, 1946 and the testimony of Dr. Queen, one of the physicians who examined Mrs. White in preparation for the institution of that proceeding. In Kelly v. Stanton, 141 Md. 380, 381 , 118 A. 863 , it was held that an adjudication of mental unsoundness in 1920 was admissible in evidence on a question of mental incapacity in 1918, but was not legally sufficient to take that question to the jury. In the instant case, as Judge Marbury says, it is evident from the testimony that Mrs. White’s condition, both physical and mental, deteriorated rapidly during the spring and summer of 1946.

Dr. Queen, who saw her only once, for about three-quarters of an hour on July 14, 1946, says, on the basis of a coroner’s [autopsy (?) ] report dated September 13, 1946 “upon examination of her brain,” and of his own examination of her in July, that “to have as advanced a case of arterio-sclerosis as this lady had in September 1946, nineteen [sic] months ¹²² previous the condition, of necessity, due to the slowness of developing would have definitely impaired her mental capacity and ability to think clearly and to weigh properly anything that she might do.” He invites the court “to deduce” from his testimony that in 1944 she “was incapable of knowing what she was doing in the signing of a deed.” . The “coroner’s report is not in evidence; it is not shown to have contained more than the statement of “cause of death” in the death certificate, viz., “Cardiovascular renal disease.” However, on cross-examination Dr. Queen admitted that it is possible that Mrs. White “could have been able to know what she was doing about signing this deed in November, 1944. The testimony of the lawyer and the notary who saw her sign shows that she did know what she was doing. Dr. Shannon, who was her own physician, from January 5, 1942, to September 8, 1946, paid her thirty-five visits from the year 1943 till her death, and signed her death certificate, says in his deposition, that she was “mentally capable of making a serious contract or deed on November 29,1944.” Plaintiffs contend that “the record is replete with observations of witnesses that Mrs. White was not mentally alert after her stroke; that her conversation was irrational and unconnected; that she was not her normal self in many ways.” Mrs. Hamilton, the niece, who considered herself “closest to Mrs. White In affection” after Mr. White’s death, except Mrs. White’s mother, made one of these “observations”: “She just was not mentally alert after the stroke.

She was afraid to make decisions.” Asked to explain what she meant or why she arrived at the conclusion that Mrs. White was mentally not alert, she said, “Well, on one occasion when myself and my family were- there she decided that she would pick out a coffin and purchase it. So we called Mr. Walters, and she selected the one that she liked. We all told her that it was nice, but she would not decide on it until she called Mr. Brown in and he o.k.’d it. She merely said that she would take that one after he had o.k.’d it.” Such trivialities, not even said to have occurred before ¹²³ or near the date of the deed, are relied on as evidence of both mental incapacity and “domination by the Browns.” Mrs. Smith, a grand-niece, when she was first married, lived with her husband at Mrs. White’s apartment house [or apartment (?)] from 1937 to 1941, and their son was born there.

Asked whether there came a time when she noticed any change in Mrs. White’s physical condition, she said, “Well, after she had the stroke I noticed — of course, it did not seem the same. * * * she * * * did not seem crazy or anything like that, but she did change a lot in her ideas.” Asked how she changed, she said that when she and her family lived there Mrs. White [who was then caring for herself and her apartment and managing the apartment house] would not allow them to have a dog in the house (but permitted them to keep one in the woods back of the house) because she never allowed any of her tenants to have dogs and could not make an exception for her niece, but Mr. and Mrs. Brown [who in August, 1945, practically took over the management of the apartment house] have had a dog, which got on Mrs. White’s couch and furniture, “and she never liked dogs, but she let them, and I just knew that that was not like her. I did not know why she did it.” Plaintiffs contend that one of the “indications of the domination of Mrs. White by the Browns * * * to be found in the record” is that “the old lady unprotestingly permitted the Browns to have a dog in the apartment and on the furniture, when she had previously refused to permit her own [great]-grand-nephew to have a dog in the house.” As Judge Marbury says, plaintiffs’ evidence on mental capacity is “fragmentary, inconclusive and remote as of the time of the execution of the deed.” We agree with his conclusion that “on the question of mental capacity the plaintiffs have not met the burden of proof.” We need not decide whether there is any legally sufficient evidence of mental incapacity. We do not suggest that there is. We find no evidence of undue influence, as distinguished from breach of duty in a confidential relation. ¹²⁴ The testimony on the questions of mental capacity and undue influence illustrates the bias of members of Mrs. White’s family and former tenants on all questions.

What plaintiffs call failure of consideration is really an alleged breach of contract. There is no evidence of any such failure to furnish care, nursing and other attention as would show an original intention not to perform the agreement and would constitute fraud in the inception of the contract and a ground for setting aside the agreement and the deed. Flanagan v. Flanagan, 133 Md. 332 , 105 A. 299 . Contracts for personal service or to live together will not be specifically enforced.

Fitzpatrick v. Michael, 177 Md. 248 , 9 A. 2d 639 . Nevertheless, pecuniary relief may be given for breach of such contracts. Long v. Huseman, 186 Md. 495 , 47 A. 2d 75 ; Hoffman v. Rickell, 191 Md. 591, 600 , 62 A. 2d 597, 600 ; Brandenburg v. Harshman, 193 Md. 104 , 65 A. 2d 906 . For several months before Mrs. White’s death her kidney trouble had so far progressed that she had lost control of her bladder and bowels.

Judge Marbury refers to an “unpleasant occurrence of July 4, 1946, when several members of Mrs. White’s family visited her and found her, at the time, unattended by any of the Browns, while the latter had gone to a Fourth of July celebration.” Mrs.