Frush v. Green

McSherry, C. J., delivered the opinion of the Court. This proceeding originated in Circuit Court No. Two, of Baltimore City, by a bill in equity filed on July eighteenth, eighteen hundred and ninety-five. The bill w'as filed by Miss Fannie Brengel Frush against sundry defendants. It recites in substance that the plaintiff was the niece of one Luther M. Frush, who had died five days prior to the filing of the bill.

That on July the eighth, or five days anterior to his death, which occurred on the thirteenth, he purported to execute a deed of trust conveying to one George A. Horner all the property, real, personal and mixed, of which the grantor was then possessed. That by the deed of trust, ⁴⁹⁶ after making provision for the payment of his debts and reserving a life-estate to himself, the grantor gave all of the ground rents owned by him to his sister, Mrs. Leas; two thousand dollars to his sister-in-law, Mrs. Sarah E. Frush; three thousand dollars to Miss May Callender Dotterveich; a piano to the plaintiff, and the entire rest and residue of his estate to four of the eight children of another sister, Mrs. Green—one of these four being the wife of the trustee, Horner. The bill proceeds to describe the cordial relations that existed between the plaintiff and her uncle, and to allege that until within a month prior to his death Luther M. Frush had been on bad terms with, and quite hostile to, his sister, Mrs. Green, and many of the members of her family. The bill charges that the deed was procured by the exercise of undue influence, and that at the time the deed purports to have been executed, the grantor was not of sound mind and memory, capable of making a valid deed or contract.

It prayed that a decree might be passed vacating and annulling the instrument. Six days later four children of William W. Frush, a deceased brother of Luther Frush, filed a petition in the case asking to be made co-plaintiffs, and leave was granted accordingly. Subsequently, for satisfactory reasons, one of these four new plaintiffs caused the bill to be dismissed as to himself. Later on all the defendants answered, Mrs. Sarah E. Frush admitting the averments of the bill, the others denying them, and a great mass of testimony was taken.

The Court below dismissed the bill on final hearing and from that decree the plaintiffs have brought the cause up to this Court on appeal. The record is voluminous—it contains eight hundred and seventy closely printed solid pages, which have been patiently perused. It recounts with minute and graphic detail a family wrangle over a dead man’s estate; and it abounds with indications of the bitterness which such a contest usually engenders. To attempt to reconcile the flatly conflicting statements of many of the witnesses would be a hopeless task indeed ; and it would swell this opinion far beyond ⁴⁹⁷ any reasonable limit, if we ventured into an analysis of the vast mass of evidence before us.

A general outline of the leading and controlling events in the drama with which we have to deal and a summary of the conclusions which we have finally drawn from a careful view of the whole field will solve the questions that confront us. William Frush, the father of Luther M. Frush, lived for many years on Madison avenue in Baltimore City. At the time of his death his family consisted of himself, his son Luther, who was a bachelor, his daughter Mrs. Leas, who was a widow, his daughter-in-law Mrs. Sarah E. Frush, the widow of a deceased son, and his granddaughter, Miss Fannie Brengel Frush, who was the daughter of Mrs. Sarah E. Frush. Mrs. Sarah E. Frush was the daughter of Dr. Leas.

After the death of her mother her father married again, his second wife being the Mrs. Leas just mentioned—the daughter of William Frush. Thus Mrs. Sarah Frush became by marrying Mrs. Leas’ brother, Mrs. Leas’ sister-in-law, whilst prior to that Mrs. Leas by marrying Mrs. Sarah Frush’s father had become Mrs. Frush’s stepmother. When Dr. Leas married the second time, Mrs. Sarah Frush was a child ten years of age living at her father’s home. After she became a widow, Mrs. Frush with her infant daughter—now Miss Fannie Frush—left her father’s house and went to reside with her deceased husband’s father, William Frush.

There Mrs. Frush and Miss Fannie made their home until the death of William Frush in eighteen hundred and ninety-two. When Dr. Leas died, his widow—the daughter of William Frush—returned to her father’s home. Upon the death of the wife of William Frush, about eighteen hundred and seventy-nine, Mrs. Sarah Frush became the house-beeper. Upon the death of William Frush, Luther Frush assumed his father’s place as the head of the household, and Mrs. Sarah Frush continued in the position of housekeeper for her brother-in-law.

It was in this domestic circle that Miss Fannie grew from childhood to womanhood and the great preponderance of the evidence leads us to believe that ⁴⁹⁸ she was a source of pride to her Uncle Luther, and the person of all others upon whom was centered such affection as his rather selfish and undemonstrative nature was susceptible. It is certain that he spoke of her at various times and to numbers of persons in the most kindly terms, and apart from the utterly trivial and inconsequential differences of opinion between them on rare occasions there is, if we lay out of view for the moment the testimony of the individuals who are interested in sustaining this deed, no suggestion from any reliable source that the current of his feelings towards her ever changed till the day the deed of trust was made. In addition to his affection for her, which impressed more than one observer as rather that of a father for his child than that of an uncle for his niece, he repeatedly declared to disinterested witnesses-^-witnesses who can have no possible motive for misrepresenting or perverting the truth—that he intended to provide liberally for her. And these declarations were made when there was no question of his mental capacity to transact his business with intelligence and understanding.

That he was warmly attached to Miss Fannie’s mother is equally clear from the evidence. She was, as Dr. Bevan says, a woman of as big a heart as he ever.saw about a sick. man. She had been faithful in her management of his household and when a distressing and progressive disease smote him with a heavy hand she was unremitting in her watchfulness and attention. There was every reason for the existence of the affection towards Miss Fannie which the witnesses describe—it is consistent with his declarations and his conduct up to the making of • the deed.

If it be not true that this kindly relation existed between the uncle and niece and if he really regarded her as a “terrible woman”—as some of the appellees pretend that he said she was—there is but one mode of reconciling these inconsistent declarations, and that is by imputing to Luther Frush a low, repulsive duplicity that does not harmonize with his character as portrayed by the evidence. It is of vital consequence to the contesting beneficiaries under the ⁴⁹⁹ deed that it be shown there were no cordial relations between Miss Fannie and her uncle, and they accordingly furnish the evidence themselves. At the very outset we meet a conflict between wholly disinterested witnesses who have nothing at stake in the pending cause, and these beneficiaries under the deed—'Mrs. Leas, a sister, who gets all the ground rents ; Mrs. Green, a sister, whose four children get nearly or quite one-half and perhaps more than one-half of the estate—Mrs. Horner, one of Mrs. Green’s children who gets one-fourth of that half—Mr. Horner, her husband, who is also the trustee—and Miss Dotterveich, a stranger, who gets three thousand dollars. With motives such as these conditions inspire, to warp and bias their memories and to inflame their feelings, we are not prepared to accept their conclusions as to the alleged antipathy of Mr. Frush towards Miss Fannie, in preference to the contrary testimony of many witnesses who have no interest, pecuniary or other sort, in the controversy.

It is a fact about which there is no dispute that for years prior to June, eighteen hundred and ninety-five, Mrs. Green —the mother of four of the beneficiaries who get about half of the entire estate—was not on speaking terms, or at least, not on terms of intimacy, with her brother Luther ; and that the latter took but little interest in her children. He had a dislike for Horner, and repeatedly spoke of him in disparaging terms. He had expressed an intention to have the Safe Deposit and Trust Company settle up his affairs. Without pausing at this juncture to trace the progress of his disease or to dwell on its obvious effect on his mental faculties ; and passing over, for the time being, the events that transpired between the time that his malady became more virulent and the date of his death; we come to the day the deed of trust was executed.

That deed was a deathbed transaction and the dread of impending dissolution was evidently then upon him. It bears date July the eighth, eighteen hundred and ninety-five, and was signed and acknowledged late in the afternoon or early in the evening. ⁵⁰⁰ On the morning of the thirteenth he died. The deed reversed^ by its dispositions, the declared purposes of the past. It cut off the only person he had ever announced to disinterested individuals his intention to make provision for; it conveyed in trust his whole estate for his own life to an individual in whom he had no confidence, instead of to the Trust Company as he had m health expressed his determination to do, and it named as the chief beneficiaries the persons towards whom, though his kindred, he was' in fact a comparative stranger.

Why this sudden, singular change ? A complete and total revolution of intention—if intention existed at all in the act done ? Rational and perfectly free beings do not, and under the very law of their existence cannot, do a voluntary act without some motive. It is just as impossible to conceive the notion of. intelligent and voluntary action by such an agent without a motive of some sort, as it is to evolve the idea of physical motion without an efficient cause.

It is a general law, founded on experience and observation, that there is a uniformity in human action, and a consequent possibility of foreseeing it, sufficient to be the basis of confidence and the determination of action between man and man; from which it may be fairly implied that men will act in the near füture precisely as they have been acting in the past. Naturally, then, and conformably to this law, when Luther Frush came to make a disposition of his property, looking at his past conduct, including his past declarations, the results ought to have been in accord with and not diametrically hostile to the avowed purpose of his life. If there was no motive, or an utterly inadequate motive, tantamount to none at all, prompting' him to reverse the declared and apparently settled purpose of his life—causing him to do precisely the opposite of that which would ordinarily have been expected of him from his antecedent conduct—then the unexpected, unlooked for act that was done must have proceeded either from a mind acting without a motive at all, or from the mind and dominion of some one else. In the first instance the act would be the emanation ⁵⁰¹ of one incapable of intelligent action and would be, therefore, invalid ; in the second, it would be the product of some other intelligence overmastering the ostensible actor, and would be, therefore, the outgrowth of an influence which the law denounces as undue.

We distinguish a condition where there is no motive or a totally inadequate motive tantamount to none at all, from a condition where simply no motive appears. In the one case the act done is invalid in one or the other of the two ways just indicated ; in the other a suspicion of its integrity is at least suggested. The bare fact that the deed of trust reverses, and suddenly reverses, the whole course of the grantor’s expressed intentions, suggests, at the outset, in the absence of an apparent rational or sufficient motive to induce or to account for the change, that the deed must have sprung either from one mentally disordered or from one under the dominion of an undue influence. No other hypothesis will explain its provisions unless some intelligent motive, not apparent, be discovered.

To these two hypotheses in the inverse order in which they have just been named we now direct our attention. Undue influence is not, of course, every mere entreaty or pressing solicitation that may be invoked- to sway the conduct or to persuade the judgment of another ; but it is that degree of importunity which deprives one of his free agency— such as he is too weak or too feeble to resist, and such as will render the instrument executed under its supremacy not his free and unconstrained act. It often closely resembles and is near akin to actual fraud, and like the latter when most cunningly employed is exceedingly difficult to expose. From the very nature and secrecy of the wrong itself, it is rare that direct evidence can be procured to unmask it, and hence the results accomplished in a given case, the divergence of those results from the course which would ordinarily and naturally be looked for, the situation of the parties taking benefits under an instrument, alleged to be the product of its .dominion towards the person who has executed that instrument, their antecedent relations to and intercourse ⁵⁰² with 'each other; the legitimate, but unrecognized claims of others upon the bounty of the one who has discarded them; their dependence upon him; his prior declarations ; the instincts of justice and the promptings of gratitude of which every unbiased mind is sensible; the natural ties of affection, together with all the circumstances surrounding the entire transaction under investigation, and the inferences legitimately deducible from them, often furnish, even in the teeth of directly contradictory testimony, ample ground for the conclusion that undue influence has been successfully resorted to, to accomplish an end which is grossly unjust and whose very existence cannot be satisfactorily accounted for or explained except upon the theory that undue influence has produced it.

Luther M. Frush was a man about sixty-eight years of age when the deed that is now being assailed was executed. For several months prior to his death he had been suffering greatly from a disease of the prostate gland that finally developed into cancer. In January preceding his death he was taken severely ill at his home on Madison avenue. He was weakened and his nervous system became involved.

He required constant attention day and night. The attention was exacting and included services of the most menial character. During the day his sister, Mrs. Leas, and his niece, Miss Fannie, took care of him, and during the night his sister-in-law remained in his room and looked after him. We need not go into the details of this incessant watchfulness and care.

His sister, Mrs. Green—whose four children are the chief beneficiaries—gave him no attention whatever, nor did any of her children. After he had rallied somewhat from this acute attack, he again went about. He took a trip to Atlantic City, but went in company with his sister-in-law, who carried with her a quantity of bed-linen which she used upon his bed to protect that of the hotel, and which she washed in her own room and with her own hands daily and then dried before a gas jet. The constant escape of urine required her to wash his underand his.outer ⁵⁰³ garments and to dry them in the same way; and besides this she kept clean and disinfected the catheter which it was necessary for him to use.

Upon his return from Atlantic City he had not improved and his physician, Dr. Bevan, advised him to ride out frequently in the country. When it became difficult for him to do this in his conveyance he used the street cars. Despite all this and despite the medical attention his disease grew steadily worse. It was a progressive disease.

As it advanced it lowered his vitality, increased his irritability and correspondingly affected his mental forces. During all this time there is not the slightest indication of a change in his feelings towards his niece; nor is there any suggestion that his antipathy towards the Greens and the Horners had in the least been modified. About this period there appears the first trace or foot-print of the scheme that ultimately culminated in the deed of trust. When one of his nephews— one of the sons of his deceased brother William—called at his house to see him, Mrs. Leas informed the visitor, her own nephew, that his Uncle Luther was too indisposed to receive him—that he needed absolute quiet and rest.

Assuming this to be true he remained in the dining-room a few moments until Mrs. Horner—one of Mrs. Green’s daughters and the wife of the trustee—entered; and upon her being told the same thing as to her uncle’s condition that Mrs. Leas had just stated to the nephew, Mrs. Horner exclaimed that she would not think of disturbing her uncle. Thereupon young Frush departed from the dining-room, his aunt, Mrs. Leas, saying to him that as he knew the way to the front door she would not accompany him. On his way through the hall he met Miss Fannie, to whom he narrated what Mrs. Leas had said, but he was informed by Miss Fannie that he could see his uncle, who was sitting up; and she immediately took him to the uncle’s room. He had scarcely taken his seat when Mrs. Leas and Mrs. Horner, who both supposed he had left the house, entered the room together and upon seeing him were considerably embar ⁵⁰⁴ rassed. .

Not long after this event Luther Frush is found at the residence of Mrs. Horner in Walbrook ; and this is the first time he ever had been under her roof. He spent a week there. He at once sent to the city for Mrs. Sarah Frush, and she went out every night and cared for him precisely as she had regularly done at his home on Madison avenue. This she did each night that he remained at Mrs. Horner’s, returning every morning to the city.

The first whisper (aside from the testimony of Miss Dotterveich) that we hear of any expressions by Luther Frush of unfriendly feelings towards Miss Fannie and her mother, comes from the inmates of the Horner household. These expressions are alleged to have been spoken by Luther Frush during the week he spent at Horner’s ; and that was the week beginning with May the thirty-first—less than a month and a half before he died. But it is utterly incomprehensible how Luther Frush could have spoken of Mrs. Frush and her daughter in the disparaging terms these interested witnesses say that he used whilst he was depending on Mrs. Sarah Frush to care for him in the Horner house during each night, and to transact much of his business in the city during the day. The sentiments attributed to him—alleged to have been uttered by him—at the very time he was acting towards this sister-in-law and niece in a way that flatly contradicted the imputed sentiments, is a very strong circumstance to show, either, that he gave utterance to no such statements at all, of, if he did, that they were the coinage of others’ brains impressed upon his enfeebled and his failing mind.

Upon the expiration of the week he spent at Horner’s he took possession of a furnished cottage which he leased on the Pimlico road. This was early in June. Mrs. Leas, Mrs. Sarah Frush and Miss Fannie accompanied him. The Greens and the Horners soon began to visit him with great regularity.

It was apparent that he was nearing the end of his life. Their attentions were in marked contrast with their former neglect. ’ With the steady progression of his disease and the corresponding decay of his physical and ⁵⁰⁵ mental powers, the assiduous watchfulness of the very persons who a few weeks previously had been shunned and disliked by him, significantly increased; though even then no one of them rendered the menial service which Mrs. Frush and Miss Fannie continued faithfully to perform. George A. Horner grew particularly demonstrative and his visits became more frequent. He was informed through Mrs. Leas that Frush wanted him to fix up his, Frush’s, affairs, and he was urged to .go frequently to the Pimlico cottage.

When he visited the sick man he would sit with his arm around him, though the odor from the disease was scarcely endurable. Horner, whom P'rush distrusted, whose house P'rush had never entered till the last of May, would get upon the bed where the invalid was lying and would fondle him there, and rub his head and pat him, though the cancerous affection had attacked his nose and though the bed-clothing was saturated with offensive exudations. His sister, Mrs. Green, whom he had denounced as a “ blatherskite,” constantly hovered about him; and finally on July the sixth, after he had so far deteriorated as to be no longer able to leave his bed, Homer was closeted with him, Miss Fannie having first been requested by Horner to retire from the room. When that interview closed Horner went away with a memorandum for a deed of trust.

Mrs. Leas supposed a will was to be drawn and she told Heiderman that a will was to be executed that evening. The memorandum was prepared by Plorner and was taken by him to Mr. Donaldson, who was Mr. Frush’s legal adviser. A discussion at once arose between Mr. Donaldson and Mr. Horner as to the fee for preparing the deed. Mr. Donaldson said to Mr. Horner: ‘‘I have been Mr. Frush’s attorney now for several years, and I do not know that he has ever had any discussion or any question about a fee with me, and you can just say to Mr. P'rush that whatever is the proper fee, that I can arrange with him when I see him.” To this Mr. Horner replied : “ No, Mr. Frush is not attending to this business.

I am attending to it; now, I am mak ⁵⁰⁶ ing these arrangements, I am the trustee; and I want to know what you are going to charge.” Subsequently the same day Mr. Donaldson went to see Mr. Frush, and though he had grave misgivings as to whether he ought to prepare the deed, finally he did prepare it—and on the evening of July the eighth, in company with Horner and a magistrate, he went to the cottage on the Pimlico road and Mr. Frush’s signature was appended to the paper and his acknowledgment was certified by the Justice of the Peace. Just as Mr. Donaldson left Dr. Bevan arrived. The doctor found considerable excitement in the household and he saw that his patient was decidedly worse. Frush was nervous and prostrated and needed an anodyne which was then administered.

Dr. Bevan is emphatic in the statement that when he reached his patient’s bedside that evening Frush was not mentally capable of transacting business; and this was certainly within thirty minutes after the deed had been signed. We allude to this testimony of the physician at this point not for the purpose of discussing now the first of the two hypotheses before alluded to, but merely as reflecting upon the question of undue influence. A man in the mental condition in which the doctor found Frush that evening must have been shortly anterior thereto an easy subject for the persistent and unduly importunate to influence and control; if he were not, in fact, so far deprived of his mental faculties as to be wholly incapable of making a valid deed or contract at all. We have stated the substance of the contents of the deed, and we have said that every provision of it, except the gift to Mrs. Leas and the small gift to Mrs. Frush, was directly the opposite of what'he had long before declared he intended to make.

Not only is this so, as we have already suggested, but the very persons he disliked the most were made the chief beneficiaries and the one person for whom he entertained the warmest regard was practically ignored. The results accomplished by the deed are widely divergent from the course which would ordinarily and naturally have been looked for. The instincts of a just man and the promptings ⁵⁰⁷ of a grateful one towards those who had so faithfully taken care of him were stifled or suppressed, though had his mind been uninfluenced he would in obedience to the most natural of impulses, have been fully sensible of them. The obviously designing demeanor of Horner and his selection as trustee though the grantor had in health expressed a lack of confidence in his business capacity; and the evident effort of some of the beneficiaries to cultivate in his last sickness an aged relative who, when in health, they either never recognized or else studiously neglected, and who, had he been pecuniarily destitnte, they most probably never would have noticed and certainly never would have courted; are all