Kerby v. Kerby

Irving, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for . Prince George’s County, refusing to set aside a deed from Christiana Edelen, to her son James P. Kerby, dated ³⁴⁷ the 4th-day of February, 1864. The bill seeks a partition of the real estate of Mrs. Edelen by means of a sale, because of its indivisibility otherwise.

It also asks for a decree setting aside the deed from Mrs. Edelen, to her son «James P. Kerby, that the.land thereby conveyed may be sold with the rest of the intestate’s estate. It also prays for an account of the rents and profits of the estate, from James P. Kerby. The Court decreed the sale of the real estate, except seventy-five acres conveyed by the deed to James P. Kerby, which deed the Court upheld, except as to ten acres of wood land, which the Court deemed insufficiently described. The Court also refused to call «Tames P. Kerby to an account for the rents and profits of the land.

Ko formal objection has been made to the bill for multifariousness, though it was adverted to in argument, and we are not to be regarded as expressing an}7 opinion upon the bill in that respect. In substance, the bill charges that Mrs. Edelen was possessed of a large real and personal estate ; and that, on the 4th of February, 1864, when she was seventy-two years old, with mental and physical faculties so much impaired, by age and disease, as to be unable to attend to her business, and unable to understand the nature and contents of such an instrument, James P. Kerby by undue influence and fraud procured the deed in question from her. It charges that he lived with his mother and attended to all her business, from 1854 to her death ; and that he received all the proceeds of the crops and never accounted for the same : hut appropriated the same to his own use ; and that the average annual profits of the estate, above expenses, amounted to over one thousand dollars. It charges that the deed was without consideration, and that the considerations set out in the deed were pretended and false; that the deed was not her voluntary act, and that when a copy of it was shown to her, in January, 3868, she denounced it as a fraud practiced upon her; and ³⁴⁸ immediately caused a bill to be filed to set it aside.

A copy of this bill is filed as an exhibit, and it is alleged that this bill was afterwards dismissed by an order of Mrs. Edelen, which they say was not signed by her, or if it was, was not her voluntary act; but was procured by James'P. Kerby’s overruling influence over his mother. It is alleged that the land embraced in the deed was more than the fair share of the- grantee in the land of his'mother, and was the most valuable part of the estate and included all the buildings. The preamble to the deed and the statement of consideration are in these words: “ Whereas the said James P. Kerby has for many years taken care of his own mother, said Christiana Edelen, surrounding her with every possible comfort, and the said James P. Kerby has for so many years taken care of and improved the real and personal estate of the said Christiana Edelen at her entire pleasure and satisfaction : Now this indenture witnesseth, that the said Christiana Edelen in consideration of the above recited premises, and also of the solemn promise and obligation made by the said James P. Kerby of allowing his brother, John B. Kerby the privilege of having a home in the dwelling, at Hart Park, during his single life, and also in consideration of the said James P. Kerby, having resigned and given up any claim to any portion of real estate she should leave at her death, has granted, bargained and sold, &c.” The appellee, Dr. John B. Kerby, answered, alleging ignorance touching the circumstances attending the execution of the deed ; but that his mother had told him James would be getting no more than he deserved, and insists that if the deed was sustained, that the charge in favor of himself must be carried out, and claiming his portion of the balance of the estate. The appellee, James P. Kerby, answered in full, denying all the allegations made by way of impeaching the deed, and insisting on its ■ entire fairness, and the true, ³⁴⁹ voluntary and uninfluenced act of his mother.

He denies that his mother had suffered from a long and severe illness, and that her mind was impaired, and her physical system was so impaired, as to render her incapable of attending to business; and unable to understand or read tlie contents of the deed; and that the deed was procured by his importunity. He avers the deed was prepared when he was not present, by a certain Oustavus Einotti, who did so on instruction and directions received from her personally; and was executed by her freely and voluntarily, and with full knowledge of its contents, and without any undue influence or persuasion of any kind on his part. He denies that the considerations set for thin the deed are pretended, or false in fact, or suggested by him. He came, he avers, to his mother, at her request in 1854, when he admits he owned no property ; but not because he could not support, himself and his children.

He admits that he acted as general agent for his mother; and says hut for his care and attention, being already in debt when be came, she would have been hopelessly involved in debt. He denies that his children all came with him ; on the contrary, he avers that his daughters did not come to his mother’s until 1861; and that his son Charles worked on the farm without compensation until his arrival at the age of twenty-one. He avers also that he received no compensation for his labor and services. He denies that he took possession of all tlie proceeds of the crops and never accounted for the same.

On the contrary, he alleges that his mother directed the whole disposition of the proceeds, and they were paid over to her. He denies that the annual income of- the farm, exclusive of expenses exceeded one thousand dollars; and alleges that for some years prior to his mother’s death, the farm little more than paid expenses. He denies that since his mother’s death, ho has been in possession of any but bis own land: and that there are any proceeds not accounted for in his administration accounts upon the estate of his mother. ³⁵⁰ By the admissions of the appellee, James P. Kerby, it is clear that he stood in that attitude and relation to Mrs. Edelen, as her general agent, which requires this deed from her to him to be scrutinized most closely, and with suspicion. It is immaterial whether it is to be regarded as a gift or as a deed for valuable services rendered; the relation he bore to her, was one of such confidence and trust, that the law regards the deed as prima facie, tainted with undue influence and fraud; and throws on the grantor the onus of showing it to be the free and uninfluenced act of the grantor, upon full knowledge of all the circumstances connected with it and of its contents.

The law controlling such a case is so fully discussed, and clearly-laid down in the case of Brooke vs. Berry, 2 Gill, 83, and in Todd vs. Grove, 33 Md., 188 , it is unnecessary to do more than refer to those cases, for the rule to which this grantee is subject; now that the validity of his deed is assailed. Notwithstanding the suspicious attaching to the transaction by reason of the relations of the parties to each other, as principal and agent; we think, upon a careful sifting of the proof, that the deed ought to be supported, and upheld as consonant with fair dealing, and the principles of equity. 1. It appears from the proof, that James-P. Kerby came to his mother’s house in 1853 or 1854 at her request. Upon the suggestion of his brother, Dr. John Kerby, who lived with her all his life, except while he was at school.

Dr. Kerby was unable to attend to the farm, and proposed to his mother to send for James. He came, and from that day to the day of her death he managed the farm, and attended to her business generally, except so much of it as the evidence shows she attended to in person. The farm was managed skilfully ; this the witnesses all say; and by the declarations of Mrs. Edelen, which are admissible’against her, and those claiming under her, in support of the deed, it was so managed that her ³⁵¹ debts were paid off, and to her entire satisfaction. Indeed, it appears in the proof, that she declared him to he a most faithful, dutiful and industrious son.

Beyond the support he received, he is not shown to have received any direct compensation for his services. They are variously estimated, in money value, from two hundred and fifty dollars to six lnindred dollars per annum, in addition to board. Besides the services of James P. Kerby, his son Charles, during his minority, worked five years as an ordinary farm hand, without compensation. His lather was entitled to his service, and disinterested testimony from a laboring man fixed the value of Charles’ labor at $150 per annum, with hoard.

The daughter Kate from the time she came in 1861, worked for her grandmother as housekeeper, and her services are proven to have been worth consideiable. He and his children therefore were not a burden, hut rendered active service. There seems to have been reasonable ground for the recitals in the deed, “ that James had for many years taken care of his mother, and surrounded her with every possible comfort, and for so many years had taken care of and improved the i'eal and personal estate.” The services of James P. Kerby and of his children, to whose labor he was then entitled, in and about the farm and business of his mother, to which manifest reference is made in the recitals and consideration of the deed, would form a valuable consideration to support the deed ; provided this mode and amount of compensation were not secured by undue advantage taken of his position and influence. 2. In view of all the facts of the case, the proportion of land conveyed was not disproportionate and unconscionable, and properly considered, is not even a suspicious circumstance.

When we consider the condition annexed, that he should abandon all further claim on the estate, she might die possessed of, and the fact that it was charged with a home for his brother, it was a very mode ³⁵² rate allowance to him, over and above his natural share, in equal division; if we assume,that the services were rendered to the satisfaction of the grantor, and that she, of her own accord, designed to compensate him in this way. According to Mr. Sheriff, who lived on the land, and worked a part of it for Mrs. Edelen ; who was familiar with it, and disinterested, the whole farm was worth about nine thousand dollars. Of the acreage, (the farm containing 317 acres,) James P. Kerby took by the deed, a little more than one-fourth. In value, according to Mr. Sheriff’s estimates, his deed gave him about one-third, or three thousand dollars.

By the lowest estimate put on the services rendered, the services of the father for eleven years, up to the date of the deed, and of the son for three years preceding the deed, would together have amounted to thirty-two hundred dollars; which is more than the value of the land conveyed. Upon an equal division, on the same estimate of value, James P. Kerby would have been entitled to nearly thirteen hundred dollars. It is apparent, therefore, that considering the value of his interest in equal division, and considering the incumbrance of -a home for Dr. Kerby, which was super-added, the recognition of his services did not amount to one-half the amount, which the lowest estimate up to date of deed would have made it. When we consider, in addition, that the same kind of service was evidently contemplated as to continue during the mother’s life, and was actually rendered for eight years afterward, till her death in 1872, the idea, that the deed was the result of the fraudulent exercise of undue influence or improper use of his position, as agent, to secure the deed, is almost excluded.

It would seem that his demand was moderate and fair; or, that if it was otherwise, the mother was strong-willed enough to resist and bring it down to her view of what was right. This is the natural inference upon full consideration of the facts touching the value of the land. ³⁵³ 3. It is abundantly clear that the grantor fully recognized the value of the labor of her son, and what was done for her by him, and intended in that way to remunerate him. She,so stated to Finotti, the draftsman of the deed, when she was giving him instructions for its preparation.

She then said, out of her son's presence, when no one was present hut Finotti, that there could not be a more faithful, industrious and dutiful son, than he was. To Joshua Sheriff, she said, on, at least two occasions, that if it had not been for James, she would not have had a shingle over her head. Finotti, without suggestion from any one hut herself, he says, put the statement in the deed which she signed and solemnly acknowledged. In view of his long -service and its character, it was natural the mother should desire to give, and should give some substantial recognition of it, and return for it.

Not to have done so, would have been unnatural and unjust. 4. The strong preponderance of proof would establish the entire capacity of the grantor at the time of the execution of the deed to make it. Neither her mind or body was as much enfeebled as the complainants charge in their hill. Those who saw most of her are very decided in their opinions of her smartness and business capacity.

The witness Finotti says that she gave him full directions as to the deed, its consideration and the description of the property shh intended to he included in the-deed. She pointed out to him the boundaries of the parcel of land she was directing to he deeded. Joshua Sheriff worked for her from 1858 to 1866, which includes the period when the deed was made. He had charge of the market garden, and generally paid its proceeds to her.

He considered her a business woman. She generally attended to her business herself; or if she was unable to do it, she gave directions about it. He says she was the principal hanker. He thought her mind good, and never knew her to be irrational.

He lived on the place for three years after ³⁵⁴ 1866, and had no reason to think her mind not good. Charles and Kate Kerby, who lived with her, testify similarly. Mrs. Grrony lived with her as a housekeeper after Kate Kerby left, and testifies she was a business woman. Louis Dyer, who knew her for many years, and attended part of the time to her market garden, speaks to same effect.

The proceeds of the market garden were always paid over to her. Kate Kerby testifies to her having had' a fall and an attack of paralysis about the same time; but. says her mind was never affected but once, and then only for about twenty-four hours. She also says she directed her personally as to the housekeeping during her