Marmaduke v. Dyer

Collins, J., delivered the opinion of the Court. This is an appeal by Hazel D. Marmaduke, Temple B. Marmaduke, her husband, and William W. Dyer, appellants, from a decree setting aside a deed executed by Frieda Dyer, appellee. William W. Dyer had been married to Frieda Dyer for nineteen or twenty years. Both had been married before.

On November 2, 1939, he purchased a house and lot in Prince George’s County, he says, with his own money. He placed the title in the name of his wife, Frieda Dyer, alone. The property was used as a home by Frieda and William until shortly before the filing of this suit. Frieda Dyer had a daughter, Elsa Louise Boyce, by a former marriage and William Dyer had a daughter, Hazel D. Marmaduke, also by a previous mar ⁵²⁸ riage.

On April 7, 1942, Frieda executed a will in which she left all her property to her daughter, Elsa Louise Boyce. In this will she made the following statement: “I am doing this at the request of my beloved husband, William W. Dyer, who says that he will be happy to see my daughter, Elsa Louise Boyce, receive all my real, personal and mixed property; as my husband and I have lived very happily together.” At the bottom of the will the following appeared: “The undersigned, William W. Dyer, husband of Frieda Dyer, the above named testatrix, having read the foregoing will of the said Frieda Dyer and being well informed of the contents thereof and being well satisfied, does expressly consent that the said Frieda Dyer may give, devise and bequeath by said will more than one-third of her real, personal and mixed estate to others, and does hereby consent to all the terms and conditions of the said will. Dated this 7th day of April, 1942. William W. Dyer (SEAL).” On February 18, 1953, Mr. Dyer called his daughter, Mrs. Hazel Marmaduke, on the telephone and asked her to come to his home.

She drove the Dyers to Hyattsville where they went to an attorney’s office. The attorney was out and it was suggested that they go to a real estate office to see a Mr. Charles L. Ervin. Mr. Ervin was asked to draw a deed conveying the house and lot to Frieda Dyer and William W. Dyer, her husband, as tenants by the entireties. He suggested that they transfer it to a straw party and have the straw party transfer it back to the Dyers as tenants by the entireties.

Mr. Dyer suggested they use Mrs. Marmaduke as the straw party. The deed was prepared. When Mr. Ervin learned that Mrs. Marmaduke was a married woman he stated that it would be necessary for her husband to join in the deed. As Mr. Marmaduke was not present they decided to return with him the following day to complete the transfer of the property.

On February 19, 1953, the Dyers and the Marmadukes returned to Mr. Ervin’s office where the deeds were executed and acknowledgments taken before a notary, Mr. John P. Ritchie. Mrs. Dyer ⁵²⁹ could not sign her name and could only make her mark when her hand was guided. The next day, February 20th, Mr. Dyer took his wife to see Dr. Andren, a psychiatrist, and told him how his wife was acting. Dr. Andren, together with his associate, Dr. Starr, after examining her made out commitment papers for Mrs. Dyer.

This commitment was not used. She was taken about March 1, 1953, to Kings County Hospital in New York for examination. There, a Dr. Springer, after ten days or about March 10, 1953, committed her to Creed-moor State Hospital on Long Island. She was still there at the time of the trial in this case.

On October 29, 1953, Frieda Dyer, non compos mentis, by Elsa Louise Boyce, her daughter and next friend, appellee here, filed a bill of complaint against William W. Dyer and the Marmadukes, appellants here, asking that the deed from Frieda Dyer and William W. Dyer to Hazel D. Marmaduke and the deed from Temple B. Marmaduke and Hazel D. Marmaduke to Frieda Dyer and William W. Dyer, as tenants by the entireties, be declared void. After a hearing in open court, the chancellor signed a decree granting the relief prayed and vesting the property in Frieda Dyer. From that decree the appellants appeal. This is an equity case in which the chancellor had the atmosphere of the hearing, the appearance and demeanor of the witnesses before him, their manner of testifying which, of course, is denied to this Court on appeal.

It has been stated many times here that the findings of facts so made by the chancellor should not be reversed unless we are convinced that such findings are clearly wrong. Mr. William W. Dyer testified that in January and February, 1953, his wife was “not so good” mentally. She was forgetful, and at one time when she went to a building association to withdraw money, she withdrew more than was necessary to pay the electric bill, which was the purpose of her trip to the building association. One day she went to a store to make some purchases, taking money with her.

After she returned home she ⁵³⁰ could not find the money and did not know what she had done with it. Mr. Dyer later found it under the bedclothes. On February 5, 1953, fourteen days before the deeds were executed, Mr. Dyer took his wife to see Dr. Watts in Washington. He told Dr. Watts that his wife was rather confused, had difficulty with her memory, had crying spells, became somewhat childish and that, whereas she had formerly been rather meticulous in her housekeeping, she was then very careless.

She could not cook and he had difficulty in getting her undressed for bed. Dr. Watts, after examining Mrs. Dyer, referred her to Dr. Henry E. Andren, a specialist in the field, of psychiatry. About 1951 Elsa Boyce wanted the Dyers to sell their home and buy a house in New York and live near the Boyces. The Dyers visited the Boyces in New York in January, 1953, at which time Elsa asked them to dispose of the property in Maryland.

Frieda did not want to do this. When they returned home Frieda said that Mr. Carr, who had drawn her will, had told her that she could change the will at any time. She wanted to change the deed. Mr. Dyer then called his daughter, Mrs. Marmaduke, who took them to Mr. Ervin and Mr. Ritchie, as aforesaid.

Mrs. Dyer told Mr. Ervin what she wanted done and he then suggested the straw party. Frieda asked Mr. Dyer’s daughter, Hazel Marmaduke, to be the straw party. At the time of the hearing Mr. Dyer was in the Soldier’s Home and receiving rent from the property in dispute. Mrs. Hazel Marmaduke testified that both her father and step-mother spoke to Mr. Ervin and Mr. Ritchie, the notary, about what they wanted done about the deed.

She saw nothing unusual about Frieda’s actions in Mr. Ervin’s office. After the deeds were signed, she and her father and step-mother went to lunch and then to a department store where Mrs. Dyer bought a hat and two dresses. At that time she said Mrs. Dyer made a comment that “Elsa would not like what she had done” about the deeds. She further said that after Mrs. Dyer came back from visiting the Boyces in New York in January ⁵³¹ she was very upset because Elsa wanted her to sell the house.

Mr. Marmaduke testified that at the Ervin office Mrs. Dyer was nervous but did not do or say anything that led him to believe she did not know what she was doing. Mrs. Evelyn Dyer, called as a witness by the appellants, testified that she was a half sister of Mrs. Marmaduke. Before Mrs. Dyer went to New York in January, 1953, she was cheerful and happy. She saw Mrs. Dyer shortly after she returned home.

She was nervous and upset because Mrs. Boyce had urged her to sell the house. Mr. Charles L. Ervin, who drew the deeds, testified that Mrs. Dyer told him she would like to transfer the title of the property. He noticed nothing unusual or peculiar about her actions or her conversation that led him to believe that at the time she signed the deeds she was not mentally capable of transferring property. He admitted that he thought it unusual that she could not write her name and that Mr. Dyer had to guide her hand when she made her mark.

During the time they were in his office “they sat off to the side.” Mr. John P. Ritchie, the notary, testified that he took the affidavits on the deeds. At that time he had no conversation with Mrs. Dyer but did not notice anything unusual about her actions or demeanor. He claimed he was the one who guided Mrs. Dyer’s hand when she made her mark and not Mr. Dyer. Mrs. Lily McKay, called by the appellee, testified that she had known the Dyers since December, 1943, and that she lived next door to them.

In 1952 she noticed a change in Mrs. Dyer’s condition. She would start to talk and then state “1 don’t know what I am going to say.” In the summer of 1952 Mrs. Dyer came to her house and told her she could not remember, that her head was not “working all right.” Before 1952 she would wear clean clothes. Afterwards she very seldom saw her when her clothes were clean. They were “really dirty.” She could not carry on an intelligent conversa ⁵³² tion.

In February, 1953, she saw Mrs. Dyer in the yard in her “nighties” using the yard instead of the bathroom. She saw her do this another time. She would hang her “washing” on the line and it did not look like it had been washed. Prior to 1952 the Dyer home was always neat and clean.

At one time when Mrs. Boyce was at the Dyer home she hung some blankets on the line. Mrs. Dyer took one of them down and walked around the yard dragging it back of her. Mr. McKay corroborated his wife’s testimony. Mrs. Anna Forney, sister of Mrs. Dyer called by the appellee, testified that she lived across the road from the Dyers.

A year before February, 1953, Mrs. Dyer would come over to her house in the wintertime with very little clothing on. At that time Mrs. Dyer wrote a letter to one of her other sisters in Arizona and it could not be deciphered. In July, 1952, she was very mortified about Mrs. Dyer’s personal appearance. She would have on stockings which did not match and shoes which also did not match.

She was never clean, she did not cook anything and her home was indescribably dirty. She could not carry on an intelligent conversation. At that time Mr. Dyer told her that he did not know what he was going to do with her. Mrs. Dyer’s condition became progressively worse.

Mrs. Elsa Boyce testified that she noticed a change in her mother’s condition in 1952. She came down from Long Island to see her whenever she could. About Easter, 1952, Mrs. Dyer would go to the store and forget why she went there. She did not keep herself neat and clean.

In July, 1952, there were no sheets on the bed, the room was untidy and there were no blinds or curtains at the windows. The house was not clean. Mrs. Dyer’s clothing was dirty and she would not talk to her when anyone else was present. Formerly Mrs. Dyer had been able to take care of things about the house.

In January, 1953, Mrs. Dyer visited her in New York with Mr. Dyer and they spent about a month with the Boyces. During that time she could not remove her clothing without be ⁵³³ coming hysterical. She cried a great deal, could not cut her food, her clothing was soiled, and she had not had a bath for a long period of time. She had to be told when to go to the bathroom.

She could not conduct a conversation. It took three of them to get her to bed at night. During that visit she took her mother to see a Dr. Springer and he gave her some nerve medicine. She would not undress or dress herself, wanted to eat with her fingers, instead of with utensils.

Mr. Dyer told her at that time that he did not know what he was