Horner v. Bell

Pearce, J., delivered the opinion of the Court. This is an appeal from a decree of Circuit Court No. 2 of Baltimore City appointing a receiver lo take charge of the real, leasehold and chattel property of Elizabeth B. Hammersly, deceased, (not including the Baltimore City stock mentioned in the bill of complaint) and granting an injunction to restrain the appellant, Albert N. Horner, from transferring or disposing of the said Baltimore City stock. ¹¹⁵ This is a continuation of the litigation between the parties to this case which was the subject of the appeal in Horner v. Bell, 102 Md. 435 , to which frequent reference will be required in this opinion. The bill in this case recites the averments of the bill in the former case, both as to the property of the said Elizabeth B. Hammersly, the persons who are her heirs at law, and the disposition of her property made, or attempted to be made, by four conveyances executedby her on July 29th, 1899, which conveyances were by a decree of Circuit Court No. 2 annulled and set aside as fraudulent and void, and which decree was affirmed in 102 Md. 435 supra. The bill further avers that Albert N. Horner on February 24th, 1906, caused to be placed upon record four other conveyances, all dated December 9th, 1901, purporting to be executed by the said Elizabeth B. Hammersly, and conveying respectively to the parties named in the former conveyances, the identical properties described in said respective former conveyances, that is to say (1) to Elizabeth H. Bell, her granddaughter for her life, and after her death to her children, certain leasehold property of little value ; (2) to George D. Hammersly, her grandson, certain other leasehold property also of little value, both in bad condition; (3) to Mary D. Horner, wife of Albert N. Horner^ and her only daughter, certain goods and chattels contained in No. 108 North Green street and No. 2045 North Fulton avenue ; and (4) to her son-in-law, said Albert N. Horner, all the residue of her estate of every kind, the consideration named in each of said deeds, being “five dollars and other good and valuable considerations.” The bill does not allege what is the value of the property mentioned in said conveyances, but the answers filed in the cause, admit that the said Elizabeth B. Hammersly, before the execution of said conveyances, was possessed of the real and leasehold property described in the bill, and avers that its maximum value was $25,000, and also admits that before July 17th, 1899, she was possessed of Baltimore City stock worth $28,000, making her total estate about $53,000. ¹¹⁶ The bill further alleges that Horner procured said four conveyances to be recorded “out of time,” that is within four hours after delivery to the recording clerk, and then to be immediately delivered to him, and so prevented the plaintiffs from seeing the original conveyances, and that they are “exact copies in their terms and substance,” of the four conveyances of July 29th, 1899, and of four other conveyances dated February 14th, 1900, and filed with the examiner in the former case referred to; that the plaintiffs knew nothing of the execution of 'the four conveyances of December 9th, 1901, until after their recording on February 24th, 1906, and that the two conveyances purporting to be made them, were never delivered to or accepted by them, and- were never intended by the said Elizabeth B. Hammersly to take effect in her lifetime, and are therefore null and void; and that they had no knowledge of the execution or delivery of the conveyances referred to in this bill, and which were the subjects of adjudication in the former case, .until shortly before the bill in that case was filed.

The bill still further alleges that since the decision of the appeal in the former case, the plaintiffs have learned that said Horner has filed with the Register of Baltimore City certficates of Baltimore City stock' of the par value of $28,000 owned by said Elizabeth B. Hammersly, which pretended to be transferred by her to said Horner, but which transfer the plaintiffs charge was never legally made by her and is null and void. It further charges that at the time of the execution of said conveyances and transfer of stock, said Elizabeth B. Hammersly was seventy-seven years of age, infirm in body and feeble in mind to such an extent as to render her incapable of making a valid deed or contract; that she resided with said Horner who took advantage of her incapacity to procure said conveyance and transfer, whereby the plaintiffs would receive only a pittance of the large estate of their grandmother instead of receiving one-third thereof in the natural course of events; that long after the execution of said conveyances of Decern ¹¹⁷ ber 9th, 1901, said Elizabeth B. Hammersly retained'control of, and exercised all. rights of ownership over, all said property, and that said conveyances and said transfer of stock were without any consideration, were never legally executed, delivered, or recorded, and should be set aside as fraudulent and void; that the two plaintiffs, together with the said Wm. H. Hammersly and Mary D. Horner are the only heirs at law of said Elizabeth B. Hammersly, and as such are entitled to her whole estate; that said Wm. H. Hammersly without notice to plaintiffs applied for, and was granted letters of administration upon the estate of said Elizabeth B. Hammersly, and gave bond as such administrator in the penalty of $100, and that this was done at the instance of said Horner; that Wm.

H. Hammersly is a man of bad habits, an excessive drinker, incapable of properly transacting any business, and wholly dependent for support upon said Horner and his wife, and that he was used by said Horner in this way to enable him fraudulently to possess himself of the estate of said Elizabeth B. Hammersly; that the plaintiffs had applied to the Orphans’ Court for Baltimore City for a revocation of said letters of administration on the ground of the general unfitness of said Wm. H. Hammersly for the duties of the office, and upon the special ground that his answer to the bill in the former case showed him to be a party to a conspiracy to defraud the plaintiffs of their rights in the estate of Mrs. Hammersly, but that the Orphans’ Court refused to revoke said letters, though it required his bond to be increased to the penalty of $3,000, which conduct on the part of the Orphans’ Court, the plaintiffs allege to be a travesty upon justice, and to require the intervention of this Court, in the exercise of its general jurisdiction, to assume control over the administration of said estate through a .receiver to be appointed by it, and the prayers of the bill were in conformity with the character of its averments. Separate answers were filed by each of the three defendants. That of Albert N. Horner is full and specific.

He alleges that the conveyances of December 9th, 1901, were her free and voluntary act, and were executed and delivered by her ¹¹⁸ when she was absolutely and indisputably in possession of all her mental faculties, and that these conveyances were made to carry out a purpose long and deliberately held by her; that he had in his possession said original deeds and would produce them at the hearing and that the recording of deeds out of place was neither unlawful nor unusual, and that the four deeds in question were executed before Edwin Eareckson, a Notary Public, whereas the other eight deeds referred to in the bill were executed before Andrew J. Collars, a Justice of the Peace now dead, and that the property conveyed to the plaintiff Elizabeth H. Bell was worth $2,000, and that conveyed to George D. Hammersly was worth about $1,500. He alleged that he purchased said Baltimore City Stock of the par value of $28,000 from Mrs. Hammersly; that the purchase was made in good faith, and that he well and truly paid the whole of said purchase price in cash, at the full par value of said stock, at different times, and in different amounts between May 21st, 1898, when she executed a power of attorney authorizing him to transfer said stock to himself, and the 17th of July, 1899, when said transfer was made, and that Mrs. Hammersly never exercised, or claimed the right to exercise, any control or ownership over said stock, or over any of said property after the execution of said conveyances and power of attorney. He further alleged that Mrs. Hammersly acquired all of her property through a conveyance from her husband, David L. Hammersly, dated January 4th, 1898, who died at a later date in the same month of that year, and that in making the conveyances mentioned in the bill she was following of her own free will and fixed purpose, the precedent and example set for her by her husband, and that she sold the Baltimore City stock because she wished to dispose of it and use the proceeds otherwise as she had a right to do, as she felt that what she and her husband had done for the plaintiffs in his and her life time was sufficient for them; that when Wm. H. Hammersly was about eighteen years of age he married a dissolute woman, and one reason why Mrs. Hammersly made the con ¹¹⁹ veyance to Horner was her purpose to debar her son’s wife from any interest in her own property, and that her son would .be taken care of by Horner and his wife.

He also alleges that Wm. H. Hammersly for more than four years before the grant of letters of administration to him had ceased to use any intoxicating liquors, and was competent to discharge properly the.duties of the administration. He then specifically alleges at much length that after her husbands death it was Mrs. Hammersly’s fixed purpose not to make a will, but to convey her property in her life time to those whom she wished to enjoy it; that she was much disturbed by the litigation over the will of George R. Berry, and frequently declared her purpose to prevent controversy over her estate by disposing of it by deed and not by will, as her husband had done, and that with this view she from time to time, reaffirmed her purpose by renewing such deeds at stated intervals. Thus her first deeds were executed July 29th, 1899.

Four other deeds of like tenor and effect were executed February 14th, 1900. The third set of deeds of like tenor and effect were executed August 1st, 1900. The fourth set of deeds of like tenor and effect were executed April 23rd, 1901 and on the 9th day of December, 1901 the fifth set of deeds of like tenor and effect were executed, and she died on June 4th, 1902. Thus it will be seen that she executed a new set of deeds practically every six months.

He alleges in his answer that he was not present at the execution of the last set of deeds, but that Mrs. Horner alone, in addition to the Notary, was present at that time. This persistent execution of successive conveyances of the same tenor and effect, indicates either remarkable tenacity of purpose and intelligent exercise of will on the part of Mrs. Hammersly, or equally remarkable shrewdness and skill on the part of Mr. and Mrs. Horner in devising and executing a plan to defeat the not unnatural expectations of the plaintiffs, and to possess themselves of the bulk of Mrs. Hammersly’s estate. Horner further alleges that he was advised by counsel in ¹²⁰ the former case that the case made by plaintiffs was not sufficient to require of him and his wife any testimony to meet the plaintiffs’ case, other than their answers to the interrogatories accompanying the bill. The answers in that case were characterized by Judge Jones as “evasive and perfunctory” and as “framed, if not with the purpose, at least with the effect, to make the burden of the plaintiffs with respect to proof, as difficult as possible,” and with this language of the careful and conscientious Judge whose lamented death has since occurred, we do not disagree; but in this case, heard on bill and answers, we cannot say that the defendants have not met the averments of the bill with clear and specific denials.

There is no averment in this bill of the insolvency of Albert N. Horner, or that he is not of ample means to respond to any claim which the appellees may establish. The case, as now presented, upon bill and answers, does not involve a decision upon the final merits, and requires us to examine with care the right of the plaintiffs, at this stage of the case, to a decree for receivers and an injunction. The fundamental principles governing- the appointment of receivers are thoroughly settled in this State, and are stated with great precision in Millers Equity Procedure, sec. 629 to 634, accompanied by reference to the cases. From these numerous cases, none can be selected which more succinctly and strongly state the controlling principle in this