Garner v. Garner

Shehan, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Dorchester County dismissing a bill of complaint filed by Daniel Garner, Emanuel Garner, Meyer E. Garner, and Esther Garner Levy, appellants, and next of kin of Isaac Garner, deceased, against Augusta Garner, his widow, individually and as executrix of his alleged last will, and Emerson C. Harrington, Jr., and V. Calvin Trice, administrators' ad colligendum of the estate of the deceased. Three questions are here presented: First. The existence of a constructive trust ex maleficio, resulting from the alleged fraudulent procuring of ⁶⁰⁵ a paper writing in the form of a last will and testament, dated February 23rd, 1933, under the terms of which all the property of Isaac Garner was given, devised, or bequeathed unto his wife, Augusta Garner.

Second. The existence vel non of a gift causa mortis from the deceased unto his brother, Daniel Gamer, for the benefit of the wife of the deceased, Augusta Garner, and the next of kin, thereby curtailing the operation and effect of said alleged will. Third. Error in refusal to admit testimony of Daniel Garner in relation to the alleged gift causa mortis.

Isaac Garner, with the assistance of his wife, had accumulated a substantial fortune of approximately $400,000, through untiring thrift and rigid economy covering a long period of years. He died on May 29th, 1932, without children, but leaving surviving him his widow, Augusta Garner, a brother, Daniel Garner, and Emanuel Garner, Meyer E. Garner,and Esther Garner Levy, children of Joseph Garner, a deceased brother. Approximately his entire estate, consisting of stocks, bonds, and securities, was found in his lock box in the Mercantile Trust Company of Baltimore City. In addition to these there were accounts of deposit in his name and in the name of his wife.

The first two questions present issues of fact relating to the circumstances surrounding the making of said alleged will, and of the gift causa mortis. In the testimony there is much contradiction, conflict of testimony, charges of bad faith, and imputations of sordid designs and practices, which make it difficult to arrive at satisfactory conclusions. We are not passing upon the wisdom and justice of the disposition of the property of Isaac Garner. That may properly be among the facts to be taken into consideration in deciding the questions involved.

Ordinarily, a rational man may be presumed to dispose of his estate according to the usual concepts of duty and the known disposition of people to favor those who are nearest to them and who ordinarily have the first claim upon their ⁶⁰⁶ bounty, but in a contrary settlement of property, made deliberately without restraint by a rational person, courts cannot intervene to make a will or dictate dispositions of estates. It might seem just for Isaac Garner to have given something to his brother Daniel, with whom he had worked and been associated, as a near relative and helpful friend, for many years. They had peddled together through parts of this state, one with his pack of merchandise and notions and the other with his tinware. As to the deceased brother Joseph or his children, there is no appearance of ill will on their part, or on the part of Isaac Garner towards them.

There is no suggestion of misconduct, unfriendliness, or neglect, and to so dispose of his property that his wife and his wife’s relatives, after a few years, will receive all of it, may seem unjust, but that, in itself, is not our problem. Augusta, the widow, is over seventy years of age. She has brothers and sisters living, and upon her death they or their descendants will probably come into possession of such part of the estate as remains in her at the time of her decease. There are facts to be taken into account in weighing the testimony and in the final decision of the case.

Isaac Garner made a will on January 3rd, 1919, about fourteen years before his death, leaving all of his property to his wife, and named her as executrix. The will of February 23rd, 1933, is exactly the same in language and effect as the first will. There is no question raised as to the legality of the first will, but the validity of the second will is questioned and will be first considered in this appeal. The first will stood until February 23rd, 1933, about which time he had become seriously ill, and evidently his mind turned sharply toward his business affairs and the ultimate disposition of his property.

He became anxious lest the conviction of one of the attesting witnesses to the first will, of a serious criminal offense, might affect its validity; at least this is the reason given by the widow for his making a second will identical in terms, and word ⁶⁰⁷ for word an exact copy of the previous will. The appellants contend that there was no reason at all for the execution of the second will in its present form, as a result of such anxiety, because Isaac Gamer had inquired of and taken the advice of Abel A. Rosenberg, of the firm of Mackubin, Legg & Company, after Mr. Rosenberg had consulted an attorney. This advice was to the effect that the conviction or imprisonment of an attesting witness to a will did not affect its validity. The testimony on this point is not questioned.

The appellants claim that the true reason for Isaac Garner’s desiring to make á second will was entirely different from that advanced by his widow. It is alleged in the bill of complaint, and to some extent supported in the testimony, that the deceased had concluded to change his first will, and, after some minor bequests, to so dispose of his property that his brother Daniel and the children of his deceased brother Joseph should receive one half of his estate, and his wife the other half, doubtlessly realizing that under his will, by which his wife received the entire property, her brothers and sister's, or their descendants, would ultimately receive the entire property, to the exclusion of his own near relatives, and this would soon occur, because he was ill, and both he and his wife were far advanced in years. It is charged that, in order to effect this change in the disposition of the property, and not because of any anxiety as to the attestation of his first will, he undertook to decidedly change the disposition of his estate by making another will. It is alleged that, being seriously ill, Mr. Garner sent his wife to Mr. Walter B. Johnson, cashier of the National Bank of Cambridge, who had drawn the first will, and who had known and had: transacted business with Isaac Garner for a long time, with the instructions that he prepare a will carrying out his plans for a new disposition of his estate.

It is charged that he directed his wife to instruct Mr. Johnson to prepare a will so that, af ter certain charitable and religious bequests and other small gifts, his property should be divided, one- ⁶⁰⁸ half to his wife and one-fourth to Daniel, and one-fourth to the children of his deceased brother Joseph. It is further charged that, his wife realizing the effect of this change, and knowing that her husband could not read the English language, and in order to trick and defraud her husband into executing a will identical in form and effect with the first will, and not change it as desired by him, so that she would receive practically the entire estate, she requested Mr. Johnson to make an exact copy of the first will, except as to date, the signatures of the said Isaac Garner, and the attesting witnesses. She delivered this will to Mr. Johnson, and explained that her reason for so doing was that her husband might be relieved of his anxiety as to the validity of his first will. As requested, Mr. Johnson caused this copy to be made with care and precision and carried it. to Mr. Garner’s place of business, and took with him two employees of the bank to attest the will, if it met with his aproval.

What then happened is of such importance that the testimony of Mr. Johnson on this question will be here set out: “I told Mr. Garner that I had the paper I had promised to prepare and the clerks of the bank were across the street; if he wanted to execute the paper, I would call them. He said ‘All right.’ I went to the door and called the clerks over. After they got there I took the papers out of my pocket. Q. What papers?

A. The old will and the will I had just completed. I said, ‘Mr. Garner, here is this paper; do you want to read it?’ ‘No.’ ‘Do you want to read it?’ ‘No.’ I said, ‘Do you know this is your last will and testament that Mrs. Garner asked me to write this morning; being you haven’t read it and don’t want me to read it, I might state it is identical with the other will; it is the same in every particular; and, as I understand, the only change you wanted to be made in that will was to change the witness—have a witness other than Mr. Barnett.’ He said, ‘That is right’.” The proper execution of this paper as a will is not disputed. Unless we entirely ignore Mr. Johnson’s testimony, ⁶⁰⁹ directly supported as it is by the testimony of Augustus Stewart, another disinterested and credible witness and an employee of the bank of which Mr. Johnson was cashier and Mr. Isaac Garner was a customer, or unless we believe that Isaac Garner did not understand what he was doing or the purport of the will, even though it was carefully explained h> him by his friend and adviser, the validity of this will cannot be questioned, either as to its execution or the understanding of its terms by Mr. Garner. The conflicting stories given by other witnesses as to the statement of Mr. Garner after the will was made present some difficulties, but should not outweigh the testimony of Mr. Johnson and of Mr. Stewart, both business men occupying positions of trust and confidence in the community, with apparently no improper motives or selfish interests to serve, and being only desirous of aiding a friend and customer of the bank in a manner desired by him.

The witnesses whose testimony is to the effect that Augusta Gamer tricked her husband into executing a second will, believing that it was a testamentary paper entirely different in its effect from his first will, are in most part interested, and will be denied their expectations with regard to the estate, if the will is sustained and not defeated in its operation by later gifts of his property. The second question presents a more difficult and interesting problem. Holding that the second will is valid does not dispose of this case. The further question to be decided is whether Isaac Garner, after he had made this will, in the manner and form as shown by Mr. Johnson, did for some reason wish to change the disposition or settlement of his property so that other relatives and charitable institutions would participate in and be the beneficiaries of his bounty, and that certain religious rites be performed, and for that purpose made a gift causa mortis to his brother Daniel.

Isaac Gamer and his wife were orthodox Jews and were devoted to their faith and religious observances, ⁶¹⁰ and to them he wished to give recognition and substantial assistance. He also desired to compensate a faithful employee and to aid the Cambridge Hospital and other charities. This, it is claimed by the appellants, led him to desire radical changes to be made in his will, in which wish he was suspicious of being frustrated, and, not being able to thus perfect his purpose, he resorted to the plan of making a constructive delivery of the contents of his lock box in the Mercantile Trust Company to his brother, for the same purposes as were planned by him to be effected by a second will. He therefore undertook this by a gift causa mortis by delivering the key to the lock box to his brother Daniel.

It is claimed that he twice made this effort, and his desire in that behalf was defeated, in the first instance, by trickery and fraud in the signing of a will, the contents of which he did not know and were contrary to his wishes, and, secondly, by a course of conduct on the part of his wife that he could not control. He endeavored to procure the second will, and his wife refused to deliver it to him, claiming that the will had been lost or mislaid, when in fact it was in the possession of one of her brothers in the City of Washington. There are two reasons which may be assigned for disposing of his property by this gift; the one grows out of the suspicion entertained by him that this second will was not in its terms as he wished, or that he later changed his mind as to the disposition of his property. In purpose and effect the alleged gifts were substantially the same as the bequests he desired to be incorporated in the second will.

In each of these intended dispositions, the wife was to receive one-half, his brother Daniel one-fourth, and the children of Joseph one-fourth, after some small gifts or bequests, and Daniel Garner, to whom the key is alleged to have been given, was directed and intrusted to make the division of the contents of the lock box, according to the instructions of Isaac Garner. Thus appears the relationship between this gift and the second will, and how it came ⁶¹¹ about that the alleged gift was made. These are contentions of the appellants. Gifts causa mortis are always regarded with suspicion, and can only be established by the clearest and most convincing evidence.

In regard to such gifts this court has said, in Brooks v. Mitchell, 163 Md. 1 , at page 13, 161 A. 261, 266 ; “For, while such claims are always a subject of suspicion because of the ease and safety with which evidence may be fabricated to show gifts by persons no longer able to speak themselves and who at the time of delivery were stricken by a mortal and disabling disease, yet that consideration is not an absolute and