Horner v. Bell

⁴³⁶ Jones, J., delivered the opinion of the Court. This is an appeal from a decree of Circuit Court No. 2, of Baltimore City, which set aside and annulled certain deeds to which specific reference is made in the decree and the nature and purport of which will appear in the following statement of the facts which gave rise to the controversy involved in the case. Elizabeth B. Hammersley, a widow and a resident of the City of Baltimore, died in that city on or about the 4th day of June, 1902. In her life time she had been possessed of considerable property, real, leasehold and personal.

About a week after her death, on the 13th day of June, 1902, the deeds dealt with by the decree in the case were left for record in the Clerk’s office of the Superior Court of Baltimore City, which was the proper place for such instruments to be recorded, by Albert N. Horner, one of the appellants in this case. She left as her heirs and next of kin, a daughter, Mary D. Horner, one of the appellants, and wife of her co-appellant, Albert N. Horner; a son, William H. Hammersley; and two grandchildren, Elizabeth H. Bell, and George D. Hammersley, the appellees, who are the children of a son who predeceased her. The deeds, which are the subject of controversy, four 'in number, all purport to have been executed and acknowledged by the deceased, Elizabeth B. Hammersley, on the 29th day of July, 1899, and were all left for record by Horner on the 13th day of June, 1902 ; and were noted consecutively as having been received at 2.15, 2.16, 2.17 and 2.18 o’clock, P. M. One of them conveyed to Elizabeth H. Bell, one of the appellees, “in consideration of five dollars and other good and valuable consideration,” a certain leasehold property on Pear-l street, in the city of Baltimore, for life on condition, “that she promptly pays all necessary expenses on said property within sixty days after their maturity;” and if this condition “be fulfilled then after the death of the said Elizabeth Hammersley Bell * * * to go to and become the property of each of the children of the said Elizabeth Hammersley Bell as may be living at the time of her death and to the descendants of any deceased child.” But if there shall be a failure “to pay said ⁴³⁷ necessary expenses within sixty days -after their maturity then the property” assigned by the deed “is to immediately vest in and become the property of Mary D. Horner, wife of Albert N. Horner, free of all trusts and uses,” &c. Another conveyed for a like consideration a certain other leasehold property on Pearl street, said city, to George D. Hammersly, the other appellee, for life upon the same condition that he pay all necessary expenses within sixty days after their maturity aud if this condition be fulfilled, at his death, the property “to go to and become the property of Mary D. Horner, wife of Albert N. Horner;” but upon a failure to comply with the said condition upon the part of the said 'George D. Hammersly the property was to vest immediately in the said Mary D. Horner “free of all trusts aud uses,” &c.

Another of these debts conveyed for a like consideration to the appellant, Mary D. Horner, “all of the personal property, goods and chattels and personalty contained in the two dwelling houses 108 North Green street and 2045 N¿rth Fulton avenue, this (Baltimore) city, therein belonging to the said Elizabeth B. Hammersly. “.To have and to hold” &c., “absolutely.” The fourth one of the deeds in question is a conveyance to the appellant Albert N. Horner in the terms following” in consideration of five dollars and other good and valuable consideration the said Elizabeth B. Hammersley doth hereby grant, assign and convey unto the said' Albert N. Horner, his heirs, personal representatives and assigns all. of the real estate, fee-simple, leasehold, ground rents and all other property and evidences of debt due of all kinds and description not mentioned in a personal property goods and chattel deed priorily executed by me — this shall include all notes, book accounts and insurance policies and all persons and corporations are hereby authorized to accept a certified copy of this paper as full authority and acquittance to them and this paper shall be a full release to them as against all other claimants at law or in equity the purposes and intent of the deed being to make an absolute grant of all the estate (not before deeded) of myself Elizabeth B. Hammersley, and to include ⁴³⁸ all the property deeded to me by my late husband, David L. Hammersley, deceased, to Albert N. Horner. To have and to hold all of said property to the said Albert N. Horner, his heirs, executors, personal representatives and assigns with all the right and appurtenances thereto belonging,” &c. The appellees, as soon as they became aware of the deeds in question having been left for record filed the bill in this case in the Court below to have them set aside and annulled, alleging that they knew nothing of the said deeds “until they saw the notice of their having been recorded in the daily newspapers;” that the deeds purporting to have beep executed to them were never delivered to nor accepted by them; that the property pretended to be conveyed to them was subject to heavy ground rents, was in a dilapidated condition, was located in a part of the city “which is steadily deteriorating in ’value” and that it was comparatively of “little or no value while the estate and property so pretended to be conveyed to the said defendants, Albert N. Horner and Mary D. Horner, is of very large quantity and value;” that the deeds to the appellants were never legally delivered to them in the life time of the grantor; and that if the said deeds were executed at all by the said deceased they “were never intended to take effect in her life time and are therefore null and void.” They further charged that “Elizabeth B. Hammersley was advanced in age, being seventy-seven years old, and was not only infirm in body, but was also for a long time before her death, and at the time when said paper writings are alleged to have been executed, enfeebled and impaired in mind to such an extent as to render her unfit for the transaction of any business and wholly incapable of making a valid deed or contract; that she was particularly susceptible to influences surrounding her, and' residing with the said Albert N. Horner and Mary D. Horner, her feebleness and incapacity were taken advantage of by them, and she was induced, influenced and persuaded by said defendants * * * through fraud, misrepresentation and undue influence practised by them to sign said paper writings,” &c. The question is whether upon the record be ⁴³⁹ fore us these allegations of the appellee's bill are so far sustained as to justify the decree which is here under review.

And this question is largely one of fact as to which we are not aided by any direct proof going to the charges made in the bill as grounds of relief; but the irresistible inferences from the disclosures of the record leave no doubt as to the propriety of the decree. In reaching our conclusions the testimony which has been made the subject of exceptions has been laid out of the case. It will not be necessary therefore to notice these exceptions further. With the bill, making the allegations that have been set out, there were filed as exhibits certified copies of the deeds it assailed; and from these in connection with admitted facts already recited, it appears that the grantor in the deeds, Mrs. Hammersley, conveyed away, and divested herself, of all of her property of every description— reserving to herself no part thereof nor any interest therein; that the only specified consideration for this was a nominal one, that in making this disposition of all of her property, none was granted to her only living son; that but a comparatively insignificant part was granted to her grandchildren, who, next to her son and daughter, had naturally the strongest claim upon her bounty; that what was conveyed to the grandchildren was hampered with.an embarrassing and drastic condition; that the conveyance to her daughter, embraced only the personal and household effects in the two dwelling-houses named in the conveyance to her; that all the rest of her property of every description was in terms admitting of no exception granted to her son in-law; and that to emphasize the unnatural character of the disposition made of her property by the deeds in question it appeared that the property thus disposed of had been conveyed to her by her husband whose children and grandchildren received such small consideration at her hands.

The deeds in themselves give no explanation of, and suggest no reason for, the remarkable dispositions of the property which they make. Confronted with such charges thus made, and with disclosures thus appearing, it became the duty of ⁴⁴⁰ the defendants by their answer to meet them with a full, frank and direct statement to the Court of .all the facts and circumstances within their knowledge connected with and attending upon the transaction called in question that it might be seen in its true and real character; and there is no reason to doubt that they would have met this duty if they had seen in such facts and circumstances what would have gone to refute the charges made; and to explain conditions calculated to excite suspicion and to give rise to unfavorable inferences. The answers of the defendants (appellants) do not measure up to this standard of duty and just expectation. They content themselves with answers of a very perfunctory character.

These answers are evasive and make only general, categorical and formal denial of the charges in the bill and are framed, if not with the purpose, at least with the effect, to make the burden of the plaintiffs (appellees) with respect to proof as difficult as possible. The plaintiffs (appellees) accompanied their bill with special interrogatories appended thereto and what has been said of the appellant’s answers to the bill is equally true of their responses to these interrogatories. The attitude of the appellants before the Court, upon the pleadings, to which reference has been made, is the more significant because an inspection of the proceedings in the cause makes it entirely manifest that they possessed information in reference to the transaction that these call in question which they have not chosen to disclose. We proceed to examine the transaction in controversy in the light of the proof.

There is open no question as to its nature. The appellant, Albert N. Horner, in answer to one of the special interrogatories said “the deeds were in the nature of a gift, although I paid considerable sums for her (Mrs. Hammersley’s) account; I lived with her thirty years; our relations" are very friendly; and my purse was always open to her'..” The exorbitant character of the gifts is made manifest by what appears on the face of the deeds which shows that the donor stripped herself of all of her property of every kind, and placed herself in a position of absolute dependence if the pur ⁴⁴¹ porting intention of the deeds was to be given effect. Of this property the great bulk of it passed under the deed to Albert N. Horner. The appellees were to take what has already been mentioned.

The property embraced in the deed to Mary D. Horner was admitted by the appellants to be of the value of four hundred dollars. Besides the property embraced in the deeds to Mrs. Horner and the appellees the grantor is shown, by the admission of the appellants, to have been possessed at the time of the execution of the deeds of five houses and two ground rents in good localities in the city of Baltimore; and there was evidence going to show she also had valuable securities to the amount of four or five thousand dollars. A pertinent inquiry now is what was the relation between the grantor and the other parties to the deeds in question at the time they purport to have been executed and what connection such other parties had with their execution. It is not shown that the appellees had any connection with, or knowledge of the making of the deeds until they were filed for record.

The appellants, both admit that they were present with the grantor at the signing and acknowledging of the deeds and that the only other person present, or who is named as being present was the Justice of the Peace who took the acknowledgments. Mrs. Mary D. Horner was the daughter of the grantor, and she and her husband and co-appellant had, before the time in question, resided with her in the home of the grantor for about thirty years. This appears by the admission of Albert N. Horner. It further appears from testimony upon the part of the appellants, from the physician who attended her, that Mrs. Hammersley, the grantor in'the deeds, was, for several years prior to her death, an invalid suffering from organic heart trouble.

This same witness, testifying for the appellants, said “Mrs. Horner lived in the house with her mother; nursed her day and night; and in all manners discharged the duties of a loving and affectionate daughter. Mrs. Hammersley impressed me as being measurably dependent on Mrs. Horner. She preferred the attentions of Mrs. Horner to that of her ⁴⁴² nurse, whoever the nurse might be.” This witness further testified that the feelings of Mrs. Hammersley towards Mrs. Horner (appellant here) were those “of a mother to her child, affectionate and sincere;” and that “Mr. Horner (appellant) was a resident of the same home. His attentions to Mrs. Hammersley were those of a son to a mother, and on the part of Mrs. Hammersley she invariably spoke of him or to him in the most respectful and affectionaté manner.” Such were the general relations between the grantor, Mrs. Hammersley, and the appellants at the time the deeds in question were executed; and these are shown to have been close and intimate from family ties and long association and as involving a peculiar dependence of the grantor upon the good offices of the appellants b.y reason of her feeble and failing health.

This same-witness testified in chief for the appellants that in July, 1899, the month in which the deeds in question bear date, that Mrs. Hammersley was very ill; that he then visited her “probably twice a day” — thus showing a condition calling especially for nursing and care; and emphasizing her dependence upon the appellants at the. particular juncture of time when it becomes of most importance as a circumstance in this case. This evidence goes to show that when the deeds were executed the grantor was not in a'condition physically to transact business of that character without and co-operation from some source. It is not shown that she had advice or assistance from others than the appellants; and they were with her and in a position to make suggestions, give advice and aid her in carrying the business through. It is not shown who. wrote the deeds; nor who notified the Justice of the Peace and procured his attendance.

It is shown that the appellants were with her at the time in question — one of them acting as a witness; that with the Justice of the Peace who took the acknowledgments of the deeds the grantor was not known to have ever had business transaction before; that this official was one who had been frequently employed by Albert N. Horner to act in his official capacity for him; that immediately upon the execution of the deeds they were given ⁴⁴³ or passed into the possession and custody of Albert N. Horner; that he advised that the deeds be not placed on record at the time, but that they be withheld for the purpose of pro-venting some of the beneficiaries from becoming aware of their execution and this advice, as affirmed by the appellants, was followed; that he also advised that, notwithstanding the deeds, the grantor should continue to collect rents from the property and this advice was followed; that he retained the custody of the deeds from the time of their execution till the death of the grantor a period of about three years; that at her death he, without notice to, or consultation with anyone, delivered the deeds for record; and that in leaving them for record he felt himself authorized to instruct as to the order in which they should be placed upon record. Now all this appears from the admissions of the appellants or from evidence which they do not dispute; and if it be true that the deceased grantor, in the deeds in question, placed these instruments, which she adopted .and used as a means of disposing of the whole of her property in the custody and control of Albert N. Horner with authority to him to see that they were given effect, and in the meantime was acting under advice from him in regard thereto there was undoubtedly between the deceased grantor in the deeds and Horner, in respect to this transaction, a relation of trust and confidence of a grave and responsible character. The appellants are surely in no position to deny or repudiate such relation. And the inference seems inevitable from the circumstances surrounding the parties, at the time that prior, and subsisting, to the execution of the deeds in question