Giltz v. O'Malley

Thomas, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Howard County dismissing the bill of complaint of Leah E. Giltz and others, who are the legatees under the last will and testament of Sarah E. Hobbs, late of Howard County, Maryland, deceased, against John E. O’Malley of said county and State. Mrs. Hobbs was rparried twice. Her first husband was Bernard Boyle, who died in 1872.

In 1894 she married George W. Hobbs, who died about 1896. There was no issue of either marriage, but at the time of the death of her second husband Mrs. Hobbs had a number of nieces and nephews among whom were the plaintiffs, appellants, in this case. During the life of her first husband Mrs. Hobbs lived in Elkridge, Howard County, at the “Howard House,” a property owned by her, and in which she kept a store and took transient boarders, while her husband, it is said, owned a team and “did some hauling.” She started an account at the Savings Bank of Baltimore in 1862, and the evidence shows that in 1898 she had in that bank $5,426.68, and that in Hovemher of the same year she started an account in the Eutaw Savings Bank, of Baltimore City, by a deposit of $7,938.O'O'. In addition to the Howard House Mrs. Hobbs also owned a house in Elkridge, which she rented to the appellee and where he and his family resided, and another property containing about seventy acres of land.

She had raised her niece, Susannah Boyle, wife of William H. Boyle of New York, and her niece Mrs. Giltz, before her marriage ²⁸³ to Mr. Giltz, liad also lived with her for several years. After the death of ME Hobbs, Mrs. Hobbs, who was living at the Howard House alone, and who was about seventy-four years of age, wrote to Andrew Q’uirk, whom, she had taken from the St. Mary’s Industrial School in 1872 when he was about twelve years o)d, and who had lived with her until he was about nineteen years of age, asking him to come and live with her, and he, with his wife and wife’s sister, moved from Baltimore County to the Howard House in 1900 under an arrangement by which he was to pay Mrs. Hobbs a monthly rental of $10.00 and furnish her with board and lodging free of charge. He lived there until the fall of 1902, and, according to his testimony, while he was there Mrs. Giltz collected Mrs. Hobbs’ rents for her, took charg;e of her bank books, and took them to the bank when necessary. In the meantime Mrs. Hobbs was endeavoring, to persuade the defendant, appellee, whom she had known from, his childhood, and who lived near her in Elkridge, to come to the Howard House to live with her.

She stated to the defendant and his wife, whom she visited frequently, that she was getting old and had no one to look after her, and that her people did not want to take care of her and did not want her. 'She also got their pastor, Father Doory, to urge the defendants to go to live with her on the ground that her own people did not want her, and her niece, Mrs. Giltz, who lived at Harman’s Station about five miles from Elkridge also insisted upon their moving to the Howard House, and said to Mrs. O^Malley that if she and her husband were not willing to take care of her (Mrs. Hobbs) she would have to go to a home as she did not want her and none of her people wanted her. The defendant, with his wife and one child, moved to the Howard House in the fall of 1902, under an agreement with Mrs. Hobbs by which he was to pay her $10.00 per month for the property and furnish her with board and lodging free of charge. Tn 1904 Mrs. Hobbs executed a, will by which she devised the Howard House property to the defendant, and required him ²⁸⁴ to pay, as a charge upon, the property, the sum of $1,000.00 to Mrs. Bertie Saylor and $500.00 to her nephew, Charles Disney, of Anne Arundel County. After providing for a legacy of $100.00 to her niece, Mrs. Mary Pit-zinger, who formerly lived with her, and a legacy of $250.00 to Father Dowry, a bequest of her watch and chain to her niece, MrsWarfield, and a bequest of her furniture and china to Mrs. Giltz, she directed her executor, the defendant in this case, to sell all the rest of her property, and bequeathed the proceeds thereof, together with all the rest and residue of her estate to her following nieces and nephews, share and share alike, viz: Basil Harman, Everard Harman, James R. Benson, Leah Giltz, Mary Sidney Warfield, all of Anne Arundel County, Maryland, Ella Jane Sumwalt of Baltimore, Maryland, Mary Catherine Padgett of Philadelphia, Pennsylvania, and “Susan Boyle” of New York City.

O'n the 7th of September, 1906, Mrs. Hobbs conveyed the Howard House property to the defendant in consideration of the sum of $2,000 and an agreement on his part to provide her with a home with his family during her natural life in the dwelling house on said property and to furnish her with board and lodging free of charge, and on the 18th of the same month she executed a codicil to her will, reciting the conveyance of the property to the defendant,' giving to Mrs. Giltz $400.00 of the $500.00 bequeathed in her will to her* nephew, Charles Disney, and directing that said legacies to Charles Disney, Mrs. Giltz and Mrs. Saylor be paid out of her estate. After the death of Mrs. Boyle and Everard Hjarma-n, two< of the residuary legatees named in her will, Mrs. Hobbs-, in April, 1911, executed another codicil to her will, reciting their ■ death, and naming the remaining residuary legatees as the persons to take the residue of her estate. Mrs. Hobbs died in May, 1917, at the age of ninety-one years, and after her death the defendant, as executor, filed an inventory of her estate amounting to $4,714.42. . Mrs. Giltz and the other residuary legatees named in the will and ²⁸⁵ codicils, on the 20th of November, 1917, filed their hill of complaint against the defendant, appellee, “individually and as executor,” and his wife, Nellie O’Malley.

A demurrer to the original hill having been sustained, the appellants filed an amended bill of complaint against the appellee alone, which was sworn to by Mrs. Giltz, and in which they allego that in 1900 the appellee, knowing that the decedent was seventy-four years of age and possessed of considerable means, “with the express intention of depriving the natural beneficiaries of her bounty, * * * by a, wrongful and fraudulent appropriation" of her estate during her life,” moved with his family to the Howard House, and rented the property at a nominal rent and agreed to provide the decedent with a home with his family free of charge for lodging and board; that in 1906 the decedent, for the “recited consideration of $2,000.00,” and an agreement on the part of the appellee to furnish her with a home during her natural life, conveyed said property to the appellee; that from the 'year 1903 to the time of her death the decedent, being “advanced in age, feeble and impaired in health” made the appellee her confidential agent and attorney; that the appellee “ingratiated himself into her confidence,” in consequence of which the decedent “trusted him implicitly, confided to him die’collection of” her income, “the care and attention of her property, and placed in his custody her private papers -and bank hooks, consulted Mm in every matter connected in any way with her affairs, abiding by his advice and judgment,” and acted upon his suggestions, and that by reason of her age, and the “skill and experience, and artful and persistent persuasions and importunities” of the appellee, he procured the couveyance of the Howard House property without adequate consideration; that between July, 1903, and the end of 1905, the appellee, by means of the improper use of the confidential relation existing between him and the decedent, and in furtherance of his intention to deprive the appellants of her estate, withdrew from the Eutaw Savings Bank the sum of ²⁸⁶ $6,800.00 on deposit to her credit by procuring her signature to orders on said bank; that in like manner, during the period from 1907 to the date of her death, the appellee, by the improper use of the confidential relation existing between them, withdrew from the Savings Bank of Baltimore the sum of $7,843.00 on deposit to the credit of the decedent; that in addition to the sums withdrawn from said banks, and the retention of the alleged cash consideration of $2,000.00 for the Howard House property, the appellee, as the confidential agent and attorney for the decedent, received the sum of $4,250.00 from Mary M. Dempster in settlement of the sale of a tract of seventy-eight acres of land belonging to the decedent, which the decedent instructed him to deposit to- her credit in bank, but which he appropriated to his own use. The bill prayed that the defendant be required to answer under oath, and to show fully all sums received by him from or for account of the decedent while acting as her confidential agent and the disposition thereof; that the sums of money withdrawn by him from the savings banks, “be impressed with a trust for the benefit” of the decedent’s estate; that he be required to account for the sums received by him from the banks and from the sale of the property of the decedent, that the sale of the Howard House property be set aside, and for general relief. The defendant answered under oath and fully all the allegations of the bill. He denied that he went to the Howard House with the intention of depriving the plaintiffs of the decedent’s estate, and alleged that he had known the decedent from his boyhood, and that for two years prior to his going there she “had continually requested his wife and himself to move” there, “stating that none of her’ nieces or nephews would permit her to reside with them.” The answer admitted that he had occupied the property under an agreement to pay the decedent a monthly rental of $10 and that that arrangeiment continued until 1906, and alleged that in 1906, because of certain necessary improvements to be made in the dwell ²⁸⁷ ing house, the decedent, “of her own notion,” offered to convey the property to him upon the terms stated in the deed; that the cash • consideration named in the deed was paid to her in the presence of Henry S. Bell, a justice of the peace, and Vincent B. O’Malley, and no part of it was ever returned to him, and that from the date of the deed to the time of her death he faithfully complied with his obligation to provide the decedent with a home with his family free of any charge for table board or lodging.

The answer denies that the decedent ever constituted the appellee her confidential agent and attorney, or that she confided in him the collection of her income or gave him the care and custody of her property, private papers or bank books, or consulted him in every matter concerning her affairs, or that he made any suggestions to her as to the management or disposition of her property, and alleges that “the property, books and papers of the decedent were at all times under her absolute control and •dominion and were kept in an iron box in her possession and the key to which was always in her possession,” and that at no time did the appellee enter said box until after the death of the decedent for the purpose of obtaining the will in which he was named as executor. It denies that the'appellee by undue influence induced the decedent to sign orders on the Savings Bank of Baltimore or the Eutaw Savings Bank, drawn to his order and indorsed by him, but admits that during the time she resided with him ho on many occasions withdrew from both of said banks sums of money on orders signed by her, and alleges that “at all times he did so by her express request, and after obtaining said sum, always returned the same to her, and at no time either retained or1 received any part thereof from her.” In answer to the allegations of the bill that from 1903 to the end of 1905 he withdrew from decedent’s account in the Eutaw Savings Bank the sum of $6,800.00, and during the period from the year 1907 to the date of her death he withdrew from her1 account in the Savings Bank of Baltimore $7,843.00, the appellee ²⁸⁸ stated in his answer that it was impossible for him to remember accurately the amounts he withdrew during both of said periods. The answer further denies that the appellee was instructed to deposit to the credit of the decedent the sum of $4,250.00 the proceeds of the sale of property to Mary M. Dempster, and alleges that on the contrary he at the request of the decedent attended the settlement of said sale and received either from the B. & O. R. R. Co. or from Mary JUf. Dempster a check, and at the request of the decedent he got the check cashed and turned all the money over to her, and she paid him out of it $75.00' for his servicesi in attending to the settlement, and that he had no knowledge or information as to what disposition she made of the balance.

In addition to the evidence to which we have 'already referred the bank books, offered in evidence, show that the decedent in the fall.of 1902, had to her credit in the Savings Bank of Baltimore $6,743.18, and that when the account was closed after her death the balance was $1,471.39, and that in the fall of 1902 she had to her credit in the Eutaw Savings Bank $7,504.93, and that the balance remaining after her death was $246.85.' The’ orders and receipts for the withdrawals from the Savings Bank of Baltimore show that seventeen of said orders, amounting to $6,642.00, were signed hy the decedent and payable to the appellee, who signed the receipts for the money, and the orders and receipts for the withdrawals from the Eutaw Savings Bank show that seven-of said orders^ amounting to $7,100.00, were signed by the decedent and payable to the.appellee, and that he signed the receipts for the money. All of the withdrawals from the Eutaw Savings Bank on orders payable to the appellee were .between July, 1903, and October1, 1905, and the withdrawals from the Savings Bank of Baltimore on orders payable to the appellee were between 1909 and 1917, the larger ones, viz, $2,200 $800, $1,500, $1,000, $500, $400 and $818, amounting to $6,718, having been made prior to April 1915. ²⁸⁹ The uncontradicted evidencie in the ease shows that from 1lie time the appellee moved to the Howard House to the time of the decedent’s death the relations existing between her and the appellee’s family were most cordial and friendly ;. that they lived together as one family; that the decedent received from Mrs. O’Malley the care and attention of a faithful daughter, that she fully appreciated their kindness to her, often spoke of it to others, and frequently referred to> the appellee’s son, who was horn after the appellee moved to the Howard House, as her boy. The undisputed evidence also shows that the decedent was physically and mentally a very vigorous woman; that she was careful, prudent and alert in business matters, and, according to the testimony of the appellant, Mrs. Giltz, a very positive character who was not influenced by others, and who “did what she wanted to do”; that she was quite active and enjoyed good health up to within two years