Burleigh v. Miller

Collins, J., delivered the opinion of the Court. This is an appeal from a judgment for costs rendered in favor of Cathryn Miller, Administratrix of the Estate of Frederick K. Miller, Deceased, appellee, and against Edith Burleigh, appellant, by the trial judge sitting without a jury. • On July 18, 1952, Edith Burleigh sued Cathryn Miller, Administratrix of Frederick K. Miller, deceased, in the Circuit Court for Prince George’s County. In the declaration she alleged that she had loaned the sum of $10,987.75 to Frederick K. Miller; that no part of that sum had been repaid to her, although Frederick K. Miller had promised to pay the same; that a claim for the aforesaid amount was properly filed in the estate of Frederick K. Miller and that his administratrix had failed and refused to recognize said claim as a valid obligation. She claimed said sum of $10,987.75.

From the refusal of the trial judge to allow said claim, and entering a judgment for costs in favor of the appellee, the appellant appeals. ⁶¹ The testimony is essentially as follows. Mrs. Edith Burleigh, widow, plaintiff below and appellant here, was formerly a resident of Philadelphia. Her husband died in 1929. After her husband’s death, in addition to keeping roomers, she conducted certain religious, philosophical and metaphysical classes in Philadelphia, where she met Frederick K. Miller, a married man, about 1932 or 1933.

Although at first the relationship between Mr. Miller and Mrs. Burleigh had been casual, in later years it became intimate. For several years prior to his death, although married to another woman, Mr. Miller lived with Mrs. Burleigh holding her out to the public as his wife, Edith Miller. Appellant knew that Mr. Miller’s wife, Cathryn Miller, was living and not divorced from her husband. He tried unsuccessfully on at least one occasion in Florida to obtain a divorce from his wife.

At that time Mr. Miller agreed to pay, and for a number of years until his death did pay to his wife, the sum of $200.00 monthly for her support. Mrs. Miller knew that her husband was living with Mrs. Burleigh. The appellant and the decedent lived in the District of Columbia and in an apartment in Prince George’s County, Maryland, for a number of months prior to his death on April 1, 1952. Mrs. Burleigh operated a guest home in Miami, Florida, for two or three years until the sale of that property on December 1, 1950.

At that time she received a check in the amount of $10,987.75 covering the net proceeds of the sale, which is the amount she seeks to recover in the instant case. While Mrs. Burleigh lived in Florida, Mr. Miller spent much of his time with her at her home there. Mr. Miller paid certain bills for utilities and taxes on Mrs. Burleigh’s Miami property. He paid the rent while they stayed together in the District of Columbia.

He generally paid their living expenses as was customary for a husband to do. On the other hand, the appellant devoted her entire time to Mr. Miller’s personal well being and performed the services, among others, usually required of a cook and housekeeper. Mr. Miller, for a ⁶² number of years prior to his death, had been a lumber broker. His business consisted of buying lumber from various saw mills and selling it at a profit to dealers in various parts of the country.

This business required considerable capital. Cathryn Miller, as the wife of the deceased, was appointed administratrix of his estate. Her first administration account showed assets in the amount of $15,278.51. The liabilities, exclusive of the cost of administration and including plaintiff’s claim here of $10,987.75, amounted to $21,740.20.

Mrs. Edith Burleigh testified in open court before the trial judge as to the facts above recited and that she sold her house in Miami, Florida, on December 1, 1950, for $10,987.75. A check to her order on the First National Bank of Miami, Florida, dated December 1,1950, from the L. Earl Curry Trust Account for $10,987.75 was offered in evidence. On the back of that check were the following endorsements: “Edith Burleigh, Frederick K. Miller, F. K. Miller Lbr. Co., for deposit only.” This check was deposited in the Frederick K. Miller Lumber Company account in the Berks County Trust Company in Reading, Pennsylvania, and was paid on December 11, 1950, by the First National Bank of Miami.

Mrs. Burleigh stated that at the time she received this check Mr. Miller’s “cash position” was precarious. He did not have an office, bought lumber in different parts of the country in carload lots, and shipped it to dealers and furniture manufacturers. Mrs. Nellie M. Fowler testified in a deposition as follows. She resided on Bladensburg Road in Washington, D. C., and kept a tourist home.

She knew Mr. Miller ten years before his death. She also knew Mrs. Burleigh very well. She had been introduced to her as Mrs. Edith Miller when Mr. Miller brought her to her home seven or eight years before his death. She further testified that she heard a conversation about the sale of the Miami house; She said she advised Mrs. Burleigh not to sell it but Mrs. Burleigh said she was going to sell it because Mr. Miller’s business was in “bad shape” and ⁶³ she wanted to sell the house and lend him the money so he could build up his business.

Mrs. Fowler identified the check in the amount of $10,987.75 and said that Mrs. Burleigh and Mr. Miller endorsed it in her presence on her dining room table. She said that the check was in payment for the Miami house and Mrs. Burleigh said: “I am going to turn it over to Fred.” She further testified that she was with Mr. Miller and Mrs. Burleigh in the automobile the day they drove to the bank “to turn this check in.” She did not get out of the automobile. She testified that when Mrs. Burleigh handed the check to Mr. Miller he told Mrs. Burleigh that he was only borrowing the money to build up his business and that he would pay it back. Mrs. Burleigh always said she wanted to get the money from the sale of the house so she could lend it to Mr. Miller.

Mrs. Fowler further said that they talked about this loan several' times in her presence. After they left her home and moved to Kent Village in Prince George’s County she heard Mr. Miller discuss this $10,987.75 loan many times. She said: “He would sit and talk about how he was building up his business thanks to the loan from Edith, but felt sorry things were going slowly, and he still hadn’t been able to repay her. * * * Well, his cry always was he felt bad that Edith had loaned him all her money, but he was always hoping he would soon be able to repay her.” She also said that Mrs. Burleigh said: “* * * she was happy she loaned it to him, and it would not be long until they would have a permanent place to live, and then he could take care of his business.” She never heard any conversation that Mr. Miller had repaid the loan to Mrs. Burleigh. He always said he owed Mrs. Burleigh $11,-000.00.

On cross-examination she said she did not know until Mr. Miller’s death that Mrs. Burleigh was not his wife. She was “not sure” that she knew Mr. Miller and Mrs. Burleigh had a joint account in the bank at Bladensburg. She did not know whether Mr. Miller paid Mrs. Burleigh interest on the loan. In answer to a question on cross-examination she stated that this loan was never re ⁶⁴ paid.

She said that when Mrs. Burleigh endorsed the check and turned it over to Mr. Miller, she said: “I loan this to you willingly.” He would always say: “Honey, it won’t be long before you get your home back. I’ll repay your $11,000.00. My business is picking up, and when it gets back in shape, you can buy a place in Florida.” When asked whether Mrs. Burleigh meant to make a gift of this money to Mr. Miller, she replied: “Never! He wouldn’t have it that way.

He would not have accepted it. I have heard him say that.” Mrs. Anna Higgins testified in a deposition as follows. She resided in Philadelphia and had known Mrs. Burleigh approximately twenty-five years and Mr. Miller about twenty years. Mrs. Burleigh told her on the telephone that she was selling her home in Miami with the understanding that Mr. Miller was going to get the money.

She knew their handwriting and identified their endorsements on the $10,987.75 check. She testified that it was the check Mrs. Burleigh received in settlement for the sale of her place in Florida. In her presence at her home in Philadelphia Mr. Miller had asked Mrs. Burleigh to lend him that money for his business. She said: “Mrs. Burleigh stated that she was turning the money over to Mr. Miller for his business, and I objected because she had no protection.

She wouldn’t even take a promissory note from him, and I objected in view of’ the circumstances, trying to impress upon her that she had no protection if anything happened, but she said she was perfectly willing to let him have it and she didn’t need any protection from him, and he said it was-a loan and he would definitely pay it back as soon as he could from his business.” When asked whether she ever heard them discuss this matter at a later time, she replied: “Oh, many times. Everytime I saw Edith, I-asked her if she had gotten any money back, whether-' Mr. Miller had made a will protecting her loan or given-her a promissory note. She always told me not to worry', about it. * * * Well, my husband and I were the ones-that would bring it up. Edith was very, very dear to me; ⁶⁵ and I wanted to make sure that she had some protection, and in each instance Mr. Miller assured us that he would repay it as soon as he possibly could.

We were interested in getting her protected by a note or some paper, but she would never hear of it.” She said Mr. Miller and Mrs. Burleigh spent Christmas with her and her husband in Philadelphia in 1951. “As we were unwrapping our Christmas presents, Mr. Miller brought it up. He said, ‘Edith, among all the other things I owe you, I haven’t forgotten the monetary obligation in the amount of — ’ I think he called it $11,000. He said his prospects were good; in fact, he thought they were going to be exceptionally good, and he would repay her as quickly as possible.” On cross-examination she testified that she knew Mr. Miller and Mrs. Burleigh were not married. She knew the loan was never repaid.

Appellee offered in evidence, over the objection of the appellant, a financial statement signed by Frederick K. Miller, Prop., and F. K. Miller Lbr. Company and given to the Berks County Trust Company of Reading, Pennsylvania, which showed liabilities of $900.00 but did not list the alleged loan from Edith Burleigh as a liability. The decedent at the time of his death on April 1, 1952, left an insurance policy with Colonial Life Insurance Company, wherein the beneficiary was originally Cathryn L. Miller, appellee, but later, by endorsement, the beneficiary was changed to provide that if the policy matured by death, the proceeds would be “Payable forthwith to Edith Burleigh, business partner of the insured, if living, otherwise to Anna Higgins, business partner of the insured, if living, otherwise to the executors or administrators of the insured.” Litigation ensued as a result of said endorsement in another jurisdiction, and the proceeds of the policy were divided between appellant and Cathryn Miller, the wife, under a compromise agreement. At the time of Mr. Miller’s death he had on deposit in the Citizens Bank of Riverdale $1,042.20 in the joint names of himself and Mrs.