Masters v. Masters

Markell, J., delivered the opinion of the Court. This is an appeal from a decree declaring the property No. 1814 Forest Park Avenue to be subject to a trust in favor of plaintiffs “to permit them and the survivor of them to use, occupy and enjoy the same” for their joint lives and the life of the survivor. [Italicized words not in the prayer of the bill.] Defendant, Jane Masters, is the widow of Elmo L. Masters, son of plaintiffs, Mr. and Mrs. Lee R. [and Verne M.] Masters. For brevity we shall follow the example of counsel by referring to Elmo L. Masters and his wife, defendant-appellant, as Elmo and Jane respectively, and to plaintiffs as plaintiffs or as the father and mother respectively. Elmo was born on July 7, 1911.

On January 1, 1932 he was injured in an automobile accident; as a result he was unable to work for about six months and was in a hospital for several months. His hospital expenses were $617.50, paid originally by his employer, American Stores Company, and refunded to it by his father, his two brothers and himself. A few days after the accident the father obtained employment with American Stores Company at $25 per week, of which $7 a week was deducted toward Elmo’s hospital expenses. The two brothers each contributed $100.

At this rate the father paid about $182 before Elmo returned to work, leaving about $235 to be paid by Elmo and the father after Elmo returned to work. Elmo and Jane were married on August 14, 1938. She was then about twenty-six, he about twenty-seven. They were then living with their respective parents.

For almost four years they did not announce their marriage. Jane testified, “Neither Elmo or I were earning enough money to live together and make a home, and under ³²² the circumstances we decided to keep our marriage a secret”. They both continued to work. Shortly after they were married they bought a shore. “Elmo and I had a kitty, and each week we deposited an equal amount into the kitty until we had enough for a down payment, and we purchased a shore down on the Magothy. * * * I could not say for sure [in whose name the title to that property was held] but I think it was in Elmo’s name because of the fact we were married secret. * * * We each had obligations to our parents, Elmo to his and I to mine. * * * That continued throughout. * * * At the time we had the shore paid for we decided that we would sell the shore and use that money towards a down payment for a house, and with that in mind we would put his father and mother in the house so that we would no longer have to contribute to their support.

That would be our means of supporting them.” They bought the house 1814 Forest Park Avenue. It was conveyed to them as tenants by the entireties by deed dated July 31, 1942. “They [the father and mother] were to live in there rent free and they were to keep the place in some kind of repair. We did not stipulate what they had to do or did not have to do. They were to live there rent free and the repairs would be the rent.” Elmo and Jane both continued working. “We shared expenses [of the property] fifty-fifty. * * * When the house was originally in the HOLC — after it was re-financed and put into the Fraternity Building and Loan it was ten something a week,” — $45.75 a month.

They had a mortgage on it at that time. Elmo and Jane contributed the money for that purpose. At the time they bought the house they publicily announced their marriage. They did not set up housekeeping. “We did not have that kind of money.

We went with my mother and father to board. * * * At that time we were paying $20.00 a week for the two of us.” No one else contributed anything towards the pfirchase price of the house. She does not remember what Elmo’s earnings then were, “but they were mighty small”. They paid ten per cent down as a deposit, and ³²³ the balance was a mortgage with the HOLC; Elmo and Jane made all of these payments to the building association from the time they started to buy the house. Elmo died on February 20, 1951.

The property was bought for $4,300 and some odd dollars. The shore property cost $995 and they sold it for what they had paid for it. Only between $400 and $500 of this went into the new property. The remaining $500 went to buy a used Ford.

The mortgage was originally $3,870. When they bought a new automobile in 1950 it was increased $1,500 to $3,900. It is now $3,400 and some odd. Life insurance to guarantee the payment of the mortgage (not increased when the mortgage was increased), $3,089.40, and also $5,000 of other life insurance, were collected by Jane.

For 1942 Elmo and Jane’s joint [state] income tax return shows net income, $3,634.83 [apparently, but not certainly, after deduction of the $2,000 exemption]. For 1943 [state or federal ?] her earnings [salary] were $1,569.47. For 1944, joint net income, $5,075.60; 1945, $4,596.40; 1946, $3,871.80 1947 [state], $4,798.49; 1948, $4,771.13; 1949, $3,746.80; 1950, $3,168.41. For 1945 and 1946, Jane’s parents, not Elmo’s, were listed as dependents, for 1948 and 1949 none.

For the years 1948, 1949 and 1950 Jane had not been working. Elmo’s mother testified that she is sixty-seven. “Elmo had gone around and looked at houses, and bought one, and I knew nothing at all of it. And after he bought it he said it was for me, and he wanted me to live there so that it would add fifteen or twenty years to my life so that I could raise all the flowers that I wanted. * * * For three months he tried to get us in. I did not want to take it because several of my friends said they did not think I should.” This conversation with Elmo “began about three months before I moved into the house.” Elmo had already acquired the property “before he told me”.

He did not tell her whether he owned it alone or he and his wife. “I am not sure whether I knew [he was married] at that time or not. I know ³²⁴ he said he sold the shore and bought it.” He said his mother was to move in there and stay the rest of her life. “He said I did not have anything to do at all except what I wanted to do. He said it was for daddy and me in our old age. * * * I never heard anything about the taxes but I did pay the water bill, the gas bill, the telephone bill, and all repairing, and he told me to go ahead and fix it up just the way I liked because he said, ‘Mama you are going to live there as long as you live and you can fix it up the way you want’.” Elmo had an automobile, which he acquired “when he took the last mortgage out on the house”, in January, 1950. It was a Nash, brand new.

How much he paid for it, his mother does not know. “He had another car to trade in.” Whether he paid cash for the car or bought it on payments, she does not know. A few days after Elmo died, Jane came to see his mother about the automobile. “She assured me she was going to do just as Elmo wanted her to do, and I did not want the automobile. All I wanted was what Elmo wanted me to have. * * * The house and the garden. I did not hesitate only that she said I had to sign it, so I signed — * * * A paper to release the automobile.” The mother and father both signed. “She told me she was going to do the same as Elmo wanted her to do.” Jane knew about this arrangement Elmo had made with his mother and father “from the beginning.

(The Court) Why do you say that? A. Well, because Jane once told me that before she and Elmo were married she was going to look out for her parents and he would look out for daddy and me. Her parents bought their house after they were married too. Q. You mean with the help of your son and their daughter?

A. Yes, sir.” Elmo paid for this property $4,200 or $4,250 in fee. “He was allowed $300 because the cellar was so bad but I paid for the cellar. * * * (The Court) Did you know about Elmo putting a mortgage on the property? A. Not until it was done. * * * (The Court) Tell us something about that, how you came to know about the mortgage? A. ³²⁵ Well, I think he told me that he had put a mortgage on it and other than that — I know I was not pleased. I remember that because I could not see why it should be on our place, but he said everything will be all right.

It is not going to interfere in any way whatsoever, and I know he got a new car with it because he told me that he had a right nice car to trade in. (The Court) Was that before he was taken sick? I understand he was quite sick for some time before he died. A. Elmo has carried a terrible high blood pressure I would say for almost two years.

He was going to the doctor all the time. He was sick in that way but Elmo did not think he could ever die but Jane told me herself she knew he was going to die a year before he did.” She did not know that Elmo had placed the property in the names of himself and Jane, or whether he had paid all cash, or had secured a mortgage when he bought the property. Elmo’s father testified that he is seventy-one. Elmo told him, just before he bought the property, “Dad, I own a shore.

I am going to sell it and buy you a home.” He did not say where he was going to buy it at that time. In the next conversation, probably a month or two months later, he said “I sold the place and I have bought you a home at 1814 Forest Park Avenue”, “I sold the shore for the down payment”. “And if I am not mistaken he said, T will have to pay $10.00 a week until it is paid out, and that takes care of everything but the water bill’. I said, ‘We will take care of the water bill.’ * * * He said we were to live there as long as we lived, pay nothing. I said, ‘Well, we will pay the taxes anyhow’.

He said, ‘No, you pay nothing. That is all taken care of in the building association’. He said, ‘It is insured, and if anything happens to me why it is paid for’. I believe that is all I knew then. * * * I would say between three and four months” after that they moved into the property. “I talked to [Jane and Elmo both] lots of times and different times [after we moved in] but Jane always told me that that house was bought for us as long as we lived.” ³²⁶ Jane, when asked what was the condition of the property at the time it was purchased, said, “Well, to be quite truthful it was filthy”.

The only thing Jane and Elmo did in the way of repairs was to put in a bucket-a-day water heater, before Elmo’s father and mother moved in. The father and mother made the other repairs. Plaintiffs testified that extensive repairs and improvements were made to the property, including the papering and painting of the entire house, exterior as well as interior, the installation of doors, mop boards, and new shutters, the completion of the staircase which was in an unfinished state, the cementing of the cellar, the installation of stationary wash tubs, a gas heater and a “bucket-a-day”, the rewiring for electricity of the entire house, the installation of new electrical outlets, lights on the porch and door bells, the installation of a connection with the city sewerage system to replace the cesspool which had been previously used by the occupants of the house, the installation of two hardwood floors and the refinishing of another floor, the cutting of an archway between the library and the parlor, the building of an enclosure for the back porch, the enlargement of one of the bedrooms, the installation of a grape arbor and a rose arbor. The father testified that the cost of these repairs and improvements was “in the neighborhood of $2,500 and $3,000”.

Judge France suggested possible agreement between counsel as to the amount of expenditures for improvements, and distinction between improvements and repairs, and, if necessary, further testimony after decree. A witness called by appellant testified that the property is now worth $10,500. Elmo became seriously ill in 1950. He had been ill for several years.

He was in the hospital three times in the last six months of his life. Feryl Lee Masters, now twenty-five, a grandson of plaintiffs, whom Elmo’s mother “raised from a baby”, who was regarded by plaintiffs as their son and regarded them as his parents, lived with them the whole time they occupied the Forest ³²⁷ Park Avenue property. When he was married, his wife Nancy came to live there. When he first started to work after he left school he gave plaintiffs half of what he earned.

By the time he was nineteen or twenty he was earning considerably more and started to give them $30 a week. When he was married he gave $45 a week. He and his wife got their food. By January, 1951 Elmo had become unable to keep up payments on the property.

Feryl made three payments of $50 each in January, February and March, 1951, the first to Elmo, the second and third to Jane after Elmo’s death. In January, 1951, about a month before Elmo’s death, a meeting was had at Elmo and Jane’s home, between Elmo and Jane, Feryl and his wife and Feryl’s lawyer, to arrange some agreement, to be signed by Elmo and Jane, and Feryl and his wife, and no one else, whereby Feryl could make payments of $50 a month to Elmo and would “have the right either to buy the property or have the money repaid interest free”. No progress was made at this meeting, as Elmo became quite ill, the meeting adjourned and soon after Elmo went to the hospital for the last time and did not become well enough to discuss the matter. The lawyer, Mr. Caswell Nuger, testified that in the course of the conversation Elmo “made a statement to the effect he wanted this house to be the home for his parents as long as they lived”.

Feryl testified that if he bought the house Elmo’s parents “were to stay there — that is the reason I was to take the house over. Q. [by plaintiffs’ counsel] You mean subject to their life interest? A. Certainly.” On cross-examination, he testified that “after my grandparents’ death if he [Elmo] sold the house he would repay me out of the house”. That particular provision “dealt with the fact that if he was not able to pay me the money and I did not desire to buy the property he would pay me back”.

It also applied in the event he sold the house “after my grandparents’ death”. Nancy Masters testified, “Elmo began the discussion — by stating that the property * * * had been bought some years ago ³²⁸ for the purpose of providing a home for his parents in their old age, and also for the purpose of being an investment for himself and his wife. In the course of the discussions he stated that in the event anything should happen to him * * * the mortgage insurance which he carried would clear off — would clear the payments on the mortgage.” Plaintiffs, besides testifying themselves, produced thirteen witnesses who testified to statements made by Elmo at various times or by Jane before or after his death. These thirteen witnesses were: (1) Caswell Nuger and (2) Nancy F. Masters, Feryl’s wife, who testified to the statements above mentioned at the meeting in January, 1951 just before Elmo went to the hospital.

(3) Feryl Masters, who besides testifying regarding the January, 1951 meeting, testified that before his grandparents moved in Elmo “told Mama and Dad, that is whom I called my grandparents, that he wanted them to have the house, that he had bought it for them to live in the rest of their lives, and on numerous other occasions I have heard him say the same thing”. (4) Martin L. Bassford, who testified that on a blackberry picking trip, Elmo, “told me that he had bought this place for his mother and father to live there the rest of their lives”, and also “He said T wanted to buy my mother and father a home for the rest of their lives, that is what I sold it [the shore property] for’.” (5) Mrs. Melva C. Bassford, wife of the witness last mentioned, who testified “that on one occasion, when she, her husband and baby were brought to the home of plaintiffs by Elmo and Jane for the purpose of having their baby’s picture take on a bear skin rug belonging to plaintiffs, Elmo stated that ‘he had bought this home for his mother and father to live in because the time would come when his father would be pensioned and would not be able to work any longer, and he expected them to live there as long as they lived’,” and also “that on another occasion, when Elmo came to her home for the purpose of making out an income tax return ‘he spoke ³²⁹ of the house at that time with the same intention that it should be for his parents as long as they lived’.” (6) Emmett E. McDonald, who testified that “Elmo stated that ‘he had bought it for his mother and dad so they could have a place to live in in their old age’.” (7) Mrs. Dorothy McDonald, wife of the witness last mentioned, who testified that “Elmo said that he had bought the house for his father and mother, and they were to live there the rest of their lives’,” and also “that, at the time of Elmo’s funeral, Jane, ‘told me Mr. and Mrs. Masters were to live there the rest of their lives, that is what Elmo wanted’.” (8) Mrs. Ole Wood, who testified “that on one occasion Elmo said ‘he had bought the home for his mother and father for the rest of their lives and that he wanted his mother to be out there’,” and also “that on another occasion, when Elmo was at the Union Memorial Hospital, he said ‘he had bought his mother and father a home for as long as they lived, and he hoped that they would always live there as long as they both lived’,” and also “that on the occasion when she was present at the funeral home on North and Pennsylvania Avenues at the time of Elmo’s death, Jane said she had no one, and she was all alone, and she said she would like to carry out Elmo’s wishes regarding the home for Mr. and Mrs. Masters to live there as long as they lived, and she made that statement in front of another witness that is here today.” (9) Mrs. Alice Floyd, who testified, “Well, Mrs. Wood was there [at the funeral parlor at the time of Elmo’s death] and they were talking, and Jane said she wanted to do just what Elmo wanted to do for his mother and father, and then on another occasion I heard her say * * * not the same day but it was at the time Elmo was at the undertakers, and she told Mrs. Masters that she wanted to do for her and Mr. Masters just what Elmo wanted. Q. Did she say what that was? A. Well, anyone would take it she wanted them to stay in the home.

That is what he wanted. She also told her not to be worried because she wanted to do just what Elmo wanted to ³³⁰ do for them”. (10) Verne L. Masters, plaintiffs’ oldest son, who testified “that Elmo stated that his purpose in buying the property was ‘that they were to have a home until they died in the home that he bought’ and that they often discussed it, and Mrs. Jane Masters was present several of the times, at least several of them that he discussed it, and she not only acquiesced in it but several times she agreed that was so. Q. What was so?

A. That