Gaver v. Gaver

George W. Gaver died at his home at Airview, near Middletown, in Frederick County, on May 16, 1919, leaving to survive him his widow, Susan R. Gaver, two sons, Alfred W. Gaver and Oscar F. Gaver, and a daughter, Annie V. Gaver, who later married Louis J. Moore, Sr. At the time of his death he owned a lot containing one and one-fourth acres of ground on the National Turnpike at Airview, improved by an eight-room brick dwelling in which he resided, but he appears to have owned at that *Page 175 time no other property of any kind. He left a will duly executed to pass real and personal property, dated July 30th, 1898, in which he named as executors his wife and Alfred W. Gaver, his son, and on December 24th, 1908, he executed a codicil to that will in which he added his son Oscar and his daughter Annie to the number of his executors, and on October 19th, 1920, the will and the codicil were probated in the Orphans' Court of Frederick County. In that will, after leaving all of his property to his wife so long as she remained his widow, he provided that she should have the "power to sell and convey the whole or any part of the same absolutely or to convey and encumber the same by way of Mortgage, Lease, or any other Lien or encumbrance or by sale and delivery of any of my said personal property, and with power to re-invest the proceeds thereof or any part thereof, in her own discretion, either in real estate, personal property, Mortgages, Stocks, Bonds or other securities; — and from and after the death or marriage of my said wife, Susan R. Gaver, I hereby direct that all of my estate aforesaid of every kind and description, real, personal and mixed, remaining in the hands, name, possession, ownership or control of my said wife, Susan R. Gaver, be sold by my Executors hereinafter named or the survivor of them, and the proceeds of the same shall be equally divided among my three children by my said wife, Susan R. Gaver, share and share alike, namely: "To Alfred Wesley Gaver, a son, one-third; to Annie Viola Gaver, a daughter, one-third; and to Oscar Franklin Gaver, a son, one-third. "The provision hereinbefore made for my said wife, Susan R. Gaver, is to be in full satisfaction of all other interest in my real, and personal estate, unless she shall marry again, in case she shall receive out of the property of which I may die seized and possessed or of which I may be the lawful owner at the time of my death or of any other property which she may, in whole or in part, have substituted therefor under the power to sell and *Page 176 re-invest herein contained, the same amount of interest to which she would be entitled in case of my dying intestate." On November 3rd, 1930, Susan R. Gaver, professing to be acting under that power, by her deed of that date conveyed the Airview property to Oscar for a stated consideration of $4000, and on the same day he leased it to her for a term of two years at an annual rent of $240.

On November 13th, 1930, he borrowed $4000 from the Commercial Bank of Maryland, and gave to Susan R. Gaver a check dated November 3rd, 1930, drawn to her order "for estate of Geo. W. Gaver" for $4000. On November 12th, 1930, Susan R. Gaver had that check deposited in the Commercial Bank to her credit for the estate of Geo. W. Gaver, where it still remains.

On the same day Susan R. Gaver executed a will in which she named Oscar and Alfred as her executors and which contained this provision: "If there be any money due me at the time of my death, from either of my said sons, Alfred W. Gaver, or Oscar F. Gaver, my will is that said debt or debts shall be cancelled, and I credit them for all favors either one has done for me during my life." On June 30th, 1931, Oscar borrowed $4000 from his mother on the joint and several promissory note of himself and his wife, payable in three years and bearing interest at four per cent. On October 8th, 1922, Annie V. Gaver Moore died, leaving, to survive her, her husband, Louis J. Moore, Sr., and two children, Louis J. and Raymond A., all of whom reside in Virginia, and on July 11th, 1936, Susan R. Gaver died, so that there then remained surviving only two of the four executors named in the will and codicil of George W. Gaver. Because, it is said, George W. Gaver left no personal property, the executors of his will did not apply for letters testamentary thereon until after the death of his widow. Then Alfred and Oscar, the surviving executors of his will, and who were also the executors of the will of Susan R. Gaver, applied for letters on both estates, and accordingly letters on both estates were issued to *Page 177 them and in due course they qualified as executors of both wills.

On December 2d 1936, Oscar F. Gaver left for record in the office of the Clerk of the Circuit Court for Frederick County the deed of Susan R. Gaver to him, conveying the Airview property, which she had executed on November 3rd, 1930, more than six years before, and on December 9th, 1936, Alfred W. Gaver, individually and as a surviving executor of George W. Gaver, filed the bill in this case against Oscar F. Gaver to set that deed aside. In that bill, after alleging in substance the facts stated above, he charged "that the purported conveyance from Susan R. Gaver to Oscar F. Gaver was a secret and surreptitious transaction, colored with fraud and with the malicious intent on the part of the said Oscar F. Gaver to keep his brother, Alfred W. Gaver, and the heirs of his sister, the late Annie V. Gaver Moore, in complete ignorance of the said fraudulent transaction and that the failure of the said Oscar F. Gaver to record the deed from his mother, Susan R. Gaver, until after the death of his mother, or some six years after said deed was executed, was part and parcel of his deliberate plan to take advantage of his mother at the expense of his own brother, the husband and sons of his own deceased sister and the estate of his own father which he was charged to serve in the fiduciary capacity of an executor," and that "was brought about by fraud, misrepresentation and undue influence on the part of the said Oscar F. Gaver and was plainly in abuse of the confidential relationship existing between himself and his aged mother and was in derogation of his clear and lawful duty as an executor of his father's estate to preserve that estate for the benefit of the remaindermen and not to engage in individual transactions therewith for his own personal gain." The defendant answered, testimony was taken, the case submitted and an opinion filed, in which the chancellor announced that he would set aside the deed, reserving any question as to reimbursement of the purchaser. Before that opinion was filed, however, the plaintiff asked leave *Page 178 to amend his bill by striking out his name as surviving executor of the estate of George W. Gaver as that of a party plaintiff, and adding as parties defendant Zona K. Gaver, wife of Oscar, and Louis J. Moore, Sr., Louis J. Moore, Jr., and Raymond A. Moore, and by adding an offer to restore all parties to the status they respectively occupied before the execution of the deed. That amendment was allowed and made, Zona Gaver answered, notice was given to the Moores by publication, and upon their failure to appear or answer the bill was taken as confessed as against them.

After the opinion had been filed another amendment to the bill was allowed, by which Alfred Gaver and Oscar Gaver, as executors of the will of George W. Gaver and as executors of the will of Susan R. Gaver, were made parties defendant. A demurrer to the bill as thus amended was over-ruled, and the court then decreed (1) that the deed be set aside, (2) that Oscar F. Gaver retain the promissory note given by him and his wife to Susan R. Gaver for $4000, that the real estate be sold and that H. Kieffer De Lauter and David C. Winebrenner, 3rd, be appointed trustees to make the sale, and (3) out of the proceeds of such sale $4000 be paid to the estate of Susan R. Gaver and the balance if any to the estate of George W. Gaver. From that decree Oscar F. Gaver has appealed. From this statement it is apparent that the appeal submits these questions, one, whether the deed from Susan R. Gaver to Oscar F. Gaver is actually or constructively fraudulent and void; two, whether, if the deed must be annulled, Oscar F. Gaver is entitled to a return of the purchase money paid by him; and three, whether, if the deed is void, the court was authorized to appoint trustees to sell the property described in it and distribute the proceeds.

Without analyzing in detail, it is sufficient to say that in addition to those stated above, the facts embedded in the following narrative may be accepted as established: At the time of the execution of the deed under consideration Susan R. Gaver was about seventy-seven years old, *Page 179 and at the time of her death she was about eighty-three. Beginning in April or May, 1930, from some cause not shown by the record, she lost the use of her lower limbs. As a result of that disability she was for a time bed-ridden and while later she was able to sit up in a chair and even to move about her room, she was until her death confined to the room. Throughout that period her mind remained clear, she took a keen intelligent interest in her own affairs, and in what went on about her, although one witness did testify that at times her mental faculties seemed to be impaired, and that it would be difficult to make her understand things.

Alfred testified that "at the time she was confined to her room, which was in 1930, I think I am correct, she was in worse condition than a year or so later. She had lost the use of the left arm, practically lost the use of her legs, couldn't walk, but that condition gradually improved. After she stayed in bed a considerable time she regained the use of her left arm and she partially regained the use of her legs. She could get from her bed to the chair at the window by taking hold of the bed and chair.

In 1930, when she was first confined to her room, she had to be lifted to her chair," and that appears on the whole to be a substantially accurate description of her physical condition. She was a woman of some property, her business interests were not inconsiderable, she had at times money to invest, and investments to change, she incurred debts, she gave checks, and, acting vicariously, she deposited money, and operated a farm. Because of her disability she was unable to physically attend to these transactions, but usually in respect to them acted through one of her sons. She signed checks, but did not write them out herself, she discussed the operation of her farm, but relied upon her sons to execute her wishes, she discussed investments, but relied upon their judgment in making them, such deposits as she made were made by one of the sons, and in short she was compelled to rely upon them as her hands or agents in carrying out her will and judgment in the transaction of such business as she had. *Page 180 For a time Alfred lived with her at the Airview home, but in 1924 or 1925 he left that home and went to Frederick to live.

Oscar, then living in Middletown, came to live with his mother in 1932, and remained with her until her death. After Alfred left, although for a time he acted with his brother Oscar in operating the farm, and was occasionally consulted about other matters, probably because he was at hand, she came to rely upon Oscar to transact her business and do what she wanted done, and she had great confidence in him. Until their mother's death the relations between her and her sons, and between the sons themselves, were cordial, pleasant and apparently affectionate, as were the relations between her and the family of her deceased daughter Annie. Alfred, after he went to live in Frederick, visited his mother frequently, and Oscar, with whom she lived, saw her almost constantly from 1932 until her death, and he saw Alfred also from time to time.

Oscar, having testified that he had borrowed $4000 from his mother to pay the note which he had given to the Commercial Bank to raise the $4000 to pay for the property, was asked on cross-examination whether he gave her any evidence of the indebtedness, and he replied that he had given her a note which he found among her papers after her death. And he then gave this testimony: "Mr. Gaver, under your mother's will is your brother Alfred W. Gaver, a co-executor? A. He is an executor if he qualified. I suppose he qualified.

Q. Don't you know he has qualified? A. I presume he has. Q. Don't you know he has? A. Well under the terms of the will.

Q. That doesn't answer the question. A. Yes, he qualified. Q. Then why did you keep on saying you presumed when you knew all the time he qualified? Let me ask you this question: Has Mr. Alfred W. Gaver, co-executor of your mother's estate, any knowledge of the existence of this note of $4000?

A. I don't know whether he has or not. Q. Did you ever reveal to him you had come across a note for $4000? A. He was told after my mother's death. *Page 181 Q. By whom? A. By me.

Q. That there was a note for $4000? A. He was told about the transaction. Q. When? A. When we administered my mother's estate.

Q. That was after her death of course? A. It wasn't settled before she died. Q. Was he told that in your mother's estate you had come across your note to her dated some time in 1931 for $4000? A. Well no, it was never inventoried, like a lot of other things were not inventoried like the bank accounts and things like that.

Q. Have there been any inventories in your mother's estate filed? Has there been an inventory of debts due filed? A. Not yet. I haven't looked lately.

Q. You are one of the executors? A. I haven't looked, I told you. I haven't filed any. Q. Who discovered this note of $4000 after your mother's death?

A. I discovered it among her possessions. I knew it was in there. After I gave it I knew it was there. Q. Did you apprise your brother, who was your co-executor, of the existence of this note?

A. I told you a while ago I did. Q. Did you apprise him of the existence of this note? A. I told him I had borrowed that money. Q. Just answer the question.

Did you tell him about this note? A. As far as I know, the best that I can remember, I told him. Q. You don't remember definitely, whether you did or did not? A. I said I believe and I am sure I told him." And later, when cross-examined concerning the recordation of the deed, he testified as follows: "Q. When was the deed recorded for this property?

A. I don't know. Q. You don't know when the deed for the property you now own was recorded? A. No, I don't. Q. Don't you know as a matter of fact, as set forth in the bill, it was not recorded until December, 1936?

A. I don't know what you set forth. I don't know when it was recorded. It was entered for record long before that. Q. Don't you know a number of years elapsed before it was recorded?

A. Yes I know it. Q. And you say you visited your mother every day, some times twice a day? A. Yes, sir. Q.

(The Court) When did you give the deed to Mr. De Lauter? A. After my mother's death. The deed was in *Page 182 my possession, Judge. * * * Q. What was the relationship between you and your brother Alfred in 1930? Was it friendly?

A. As far as I know it was friendly. Q. You would be likely to know wouldn't you? You would know whether you were on friendly terms with your brother, wouldn't you? A. I answered you once.

Q. You didn't answer that question. I said you would likely know whether you were on friendly terms? A. I said yes. Q. Did you at any time, after delivering this deed from your mother, advise your brother of this transaction till your mother's death?

A. How is that? Q. Did you at any time advise Alfred of this transaction whereby you purchased the property from your mother until after your mother's death? A. No, sir." On behalf of the appellant seven witnesses were called to testify as to the value of the property at the time it was conveyed to Oscar. Of these witnesses Lewis F. Kefauver, who had sold the land to George W. Gaver in 1889, valued it at $7000; Leslie Coblentz, a lawyer living in Fairview and familiar with land values there, valued it at $6500; Gilmore Flaut, a real estate operator, said that it was worth $6000; John W. Holter, a former county commissioner, said it was worth $6500; Walter L. Ramsburg, who lived in Airview and was familiar with sales of property in that neighborhood, placed the value of the Gaver property at $7000; John L. Routzahn, president of the Middletown Bank and the Grangers Insurance Company, valued it at $8000, and Alfred Gaver at $8000.

For