Marden v. Scott

Parke, J., delivered the opinion of the Court. William H. Scott died testate in Baltimore on January 5th, 1926. He had executed and delivered to the appellant certain instruments of writing, under which she asserted title to the proceeds of a policy of insurance on his life in the Travelers Insurance Company for the sum of five thousand dollars and those of a similar policy in the Equitable Life Assurance Society for a like sum, and an equitable lien on two other policies on his life in the latter company to secure an alleged obligation of Scott to her in the sum of twenty thousand dollars. The executors of the assured denied the appellant had any claim to these policies or their proceeds, and demanded their payment as part of the assets of the testator’s estate.

The policies were severally payable to the wife of the assured, if living at the time of his death, and, if not, then to his executors, administrators, or assigns. The pri ⁴¹⁶ snary beneficiary died on November 23rd, 1916, and -at the assured’s death notice was given the insurance companies of the conflicting claims, and they each filed a bill of interpleader bringing the appellant and the executors into court for an adjudication of their rival interests, and, by consent, the proceeds of the two policies were paid into court, where the fund remains awaiting the result of the litigation. The decree in each of the interpleader proceedings made Margaret Marden, appellant, the plaintiff, and the appellees, who are the three executors, the defendants. The chancellor heard the evidence and decided in favor of the appellees, and directed the proceeds of the policies be paid to the executors.

Although there were two separate suits they were heard as one, and then a decree passed in each cause. The appellant prayed an appeal from the decrees, and they are both brought up on one record. The controversy is over two paper writings which are admittedly genuine, which were severally delivered, at the time of their respective execution, by William H. Scott, the testator, to the appellant, who kept them in her possession until his death, and then made them the basis of her original bill of complaint against William G. Scott, Samuel W. Scott and John O. Scott, in their several capacities as individuals, and as trustees and as executors of the estate of William IL Scott. By this last mentioned bill of complaint, Margaret < Marden seeks to have these two paper writings, and a third of later date, enforced by way of specific performance against the estate of the said testator, whether in the hands of his executors or trustees.

The decree in this cause was also adverse to the complainant, who has brought it up on appeal, which was argued as one case with those first mentioned. The causes have so much in common that it is difficult separately to discuss them; and we shall begin with the questions on the appeals from the decree passed as a result of the interpleader. In the interpleader proceedings the appellant’s testimony was taken subject to exceptions, and a motion was made at ⁴¹⁷ the close of the evidence to exclude her testimony, hut the chancellor overruled the motion, and no exception was taken to his action by the appellees; so her testimony must be considered with that of the other witnesses. Code, art. 5, sec. 40.

The proof is that the appellant and her husband, Dr. Tilghman B. Marden, lived in Baltimore, and were on friendly terms with William G. Scott for some years before his wife’s death in 1916. The appellant was then living with her husband and two children, and was about thirty-five years old, and William H. Scott was around sixty-seven years of age. The appellant’s testimony is that within ten days after Mrs. Scott’s death, at her home and in her husband’s presence, William H. Scott had told them of the two insurance policies on his life and payable at his death, and promised to give these two policies, which are the ones now in controversy, to appellant if she would “take care of him and look after him.” The appellant further stated that, as a result of this promise, she undertook and did look after and take care of him from that time until she was prevented by his family, and but for this interference she would have until his death. The period covered by these services extended from the year nineteen hundred and sixteen to some time in nineteen hundred and twenty-five, or about one year before his death in January, 1926.

Scott remained in his own home until October, 1917, when he removed to the Walbert Apartments, where he lived until May, 1918, and from there he went to a boarding house, and lived in it and two others until his death. He was confined frequently to his room, particularly during the winter, when he suffered from a chronic cold, was often indisposed, and was subject to a severe pain in his back, which was relieved by rubbing, and he craved company. The appellant did what he desired to relieve him of these conditions, by visiting and ministering to him frequently in his room when he was ⁴¹⁸ unable to go out, and by being Ms companion when he was well. The value of these services, and particularly her companionship, is not nominal, but is difficult to estimate, as .the services rendered were chiefly of an intangible nature and so not susceptible of easy evaluation.

However, we are dealing with an express oral contract, and, in the absence of fraud in the equitable sense, it is not the.value of the thing promised that entitled the promisee fi a specific performance by the promisor, but the promisee’s complete performance, or ability, readiness, and willingness to perform, in the event his performance is prevented, in whole or in part, by the party to whom it is due. Pomeroy on Specific Performance (3rd Ed.), secs. 194-196. The parties to a contract' are free to fix any form of lawful compensation as a reward for the doing of anything not illegal. And so here, if the express contract be shown to have been made and performed in part, and its complete performance prevented, despite the ability, readiness, and willingness of the appellant, by the action of William H. Scott, the court, where as here the consideration is not of nominal value, has, in the absence of proof of fraud, no concern with the nature of any lawful thing done, its monetary value, or sufficiency as consideration for the promise made by William H. Scott.

There is no sufficient proof in this case that there was either fraud or duress in the making of the contract, and that these services were performed to the complete satisfaction of the promisor there can be no doubt, nor can there be any question that their interruption was not caused by any default of the appellant. The weight of the evidence makes this conclusive. Nor is there any proof that the express contract was not made as narrated by the appellant. The other party to it is dead, and the only other person present at its making is the appellant’s husband, who deserted her on March 27th, 1917, and from whom she obtained, on August 26th, 1920, an absolute divorce on the ground of desertion.

The effect .of the nonproduction of the former husband as a witness for the wife loses its adverse sigMficance from the con ⁴¹⁹ sideration that he was subject to the process of the court and was as accessible to one side as to the other, and was used by neither. However, the testimony of the appellant does not stand alone. It finds corroboration in the subsequent relation of the parties, and the declaration of the dead man made while the services were being’ rendered, and by a statement made a short while before his death, when he said that “hell and damnation” could not keep her out of that insurance. The circumstance that the declarations were usually accompanied by expressions indicative of his having provided for appellant by a testamentary paper are in accordance with the actual situation.

The promise was that appellant should get the two policies payable at his death, and the method of the fulfillment of this promise could he by assignment or by will. So it he kept, it was immaterial to the appellant how the promise he performed, and the most important corroboration of the appellant’s statement of an express contract is found in the first testamentary paper on the record. This paper was written in a boarding house where Scott was sick, and the appellant stated it was executed in performance of Scott’s previous promise to give her the two policies of life insurance for her services. The only persons who had any connection with this document were Scott, the appellant, and Virginia Ginn, the keeper of the hoarding house.

According to the appellant’s testimony, Scott began to write the instrument on a sheet of paper with “Atlantic City, N. J.” printed at the top, but he was unable to continue . and requested the appellant to complete the writing, which she did, and then Scott signed the document, Mrs. Ginn witnessed his'signature-, and Scott delivered it to the appellant who kept it in her passession. The writing was of this tenor: “Atlantic City, N. J., November 25th, 3938. “I bequeath to Margaret Marden all money in bank in my name, also personal belongings, furniture in storage, etc., in my name, also policies Travelers’, $5,000, Equitable, $5,000, policies in safe deposit. “Wm. H. Scott, “Virginia Ginn. “November, 1918.” ⁴²⁰ The two policies of insurance were not actually delivered to the appellant, nor endorsed so as to be payable to her, but were in a safe deposit box in the Calvert Bank, where they remained until about 1922-23, when Scott took them and placed them in the safe at the office of the business in which he was interested, and there the policies were found after his death. Scott informed the appellant where the policies were on deposit, at the date of this paper, and gave her one of the two keys to the box, with the statement that she could use the box, and that she could get the policies when she wanted.

She never did use the box, nor saw its contents.. The money in bank was not given to the appellant, and never passed into her control. She was not even told the amount, and all that Scott did was to meet her at the depository and inform her that one of its directors had advised against putting the deposit to their joint account, and the appellant acquiesced in the conclusion that it was not a good thing to do, as Scott would not be able to draw on such an account without the appellant’s signature. Of all the personalty mentioned in the paper writing of November 25th, 1918, Scott delivered to her a part of the furniture in storage and kept the rest for himself.

It was said, in the decision of this court on the former appeal between the parties, with respect to the sufficiency of the bill of complaint, that this paper writing was “on its face testamentary in form, and ambulatory in effect.” Scott v. Marden, 153 Md. 1 . The evidence does not overcome this presumption, arising from the wording of the instrument. The appellant’s explanation that she used the word “bequeath,” because she thought it would “sound like a legal term” is not sufficient. Scott was an experienced man of affairs, and he understood the word in its legal and popular usage, since he requested Mrs. Ginn to witness the paper as his will.

The instrument could not operate as a will, because there was but one witness. Its value in this case is purely evidential. It corroborates the testimony of the witness as to the express contract between Scott