Leonhardt v. Leonhardt

Pattison, J., delivered the opinion of the Court. This is an appeal from an order dismissing the hill of complaint, filed by the appellant, Adeline W. Leonhardt, administatrix of Frank Kuerschner, deceased, against Theodore Leonhardt, the appellee, and the Savings Bank of Baltimore, in which it was alleged: “That on or about the fourth day of December, 1928, the said Frank Kuerschner had on deposit in a savings account in and with the, Savings Bank of Baltimore, the sum of four thousand dollars, and on that day, while the said Frank Kuerschner was physically and mentally unable to withdraw said funds, the defendant,, ¹⁵² 'Theodore Leonhardt, on what purported to be an order signed by mark of said Frank Kuerschner, obtained a withdrawal of said funds from said defendant, the Savings Bank of Baltimore, and a redeposit of the same in the name of said Frank Kuerschner, in trust for himself and said Theodore Leonhardt, joint owners, subject to the order of either, balance .at the death of either to belong to the survivor.” Both Theodore Leonhardt and the Savings Bank of Baltimore answered the bill. Leonhardt in his answer denied the allegations that Kuerschner, at the time of the execution of the order upon which funds were withdrawn from the bank, ■was physically and mentally unable to execute such order, or tiiat the order was fraudulently procured by him. The bill .as against the Savings Bank of Baltimore w-as dismissed by the plaintiff.

Thereafter the case proceeded against Leonhardt alone, and the answer of the bank is not in the record. At the beginning of the year 1928, and for some time prior thereto, Frank Kuerschner with his family, consisted of him.self, wife, Johanna, Adeline’ Leonhardt, the appellant, his adopted daughter, and her son, Harold, then about grown, lived on Rutland' Avenue, in the City of Baltimore. Because of some difficulty with'his daughter and her son, they left his home,- leaving him alone with his wife. At this time Hr.

Kuerschner was about eighty years of age, and his wife only a few years younger. In February, 1928, they moved to the home of Theodore Leonhardt, a nephew of Mrs. Kuerschner, and there resided until on or about the 29 th day of July of the same year, when Mrs. Kuerschner, while crossing- one of the streets of the city, was struck by an automobile, and as a result, thereof died on the 6th day of September following. Thereafter. Frank Kuerschner lived with Leonhardt and his wife until his death, on the 6th day of December, 1928, after an illness of about two weeks, during which time he was a (tended by Dr. George I. Young, who first made daily visits to his home, but later called to see him twice each day.

At the time of the death of Mrs. Kuerschner, there was a deposit in the Savings Bank of Baltimore in the name of "Frank and Johanna Kuerschner, which was thereafter, on ¹⁵³ September 27th, 1928, withdrawn by Kuerschner and the account closed. Whereupon, on the same day, an account was opened at the bank by Frank Kuerschner with a deposit of $4,783.42. This account was thereafter on October 1st, 1928, credited, with $15.93 interest, and on October 2nd there was a withdrawal therefrom by Kuerschner of the sum of $499.35. XTo other withdrawals were made until December 4th, 1928, when there was withdrawn therefrom the two sums of $150 and $4,178.67, upon the two orders of Frank Kuerschner, directing the bank to pay said sums to Theodore Leonhardt, or bearer.

These orders were executed by Kuerschner making his mark thereto, and were witnessed by Dr. Young. The first was dated December 3rd, and the second December 4th. Upon the withdrawal of said sums, $150 was paid over to Kuerschner, and the sum of $4,178.67 was redeposited in said bank “in the name of Frank J. Kuerschner in trust for himself and Theodore Leonhardt, joint owners, subject to the order of either, balance at the death of either to belong to the survivor.” This last deposit was pursuant to an order addressed to the Savings Bank of Baltimore, signed by Frank J'. Kuerschner by his mark thereto, and witnessed by Lewis J. Langham, directing said bank to so enter the deposit upon its books.

Beneath this order, on the same sheet, is a certificate, dated December 3rd, 1928, signed by Dr. Young, certifying that “Frank Kuerschner, the owner of savings account book XTo. 753282, was duly known to him, was of sound and disposing mind and made his mark” to said order, which was witnessed by him. On December 6th, after the death of Kuerschner, the account so opened was closed by the withdrawal of the fund by Theodore Leonhardt. The sole question in this case is one of fact, and that is, was Frank Kuerschner, at the time of the execution of the order of December 4th, upon which the balance of the fund was withdrawn from the bank, mentally able to execute the same ? It is true that Kuerschner was an old man and was the recipient for a short time only of the favors and kindness of ¹⁵⁴ Leonhardt and his wife.

Neither Leonhardt nor his wife was related to him by blood, though Leonhardt was the nephew of Kuerschner’s wife. So far as the record discloses, Kuerschner had no blood relatives. The appellant,