Mead v. Gilbert

Annie Mead, late of North Beach Park, Anne Arundel county, died testate on September 8th, 1932, leaving to survive her five children, Martha M. Gilbert, born Mead, May Belle Gay, born Mead, Harry E., Charles J., and Robert S. Mead. Prior to her death she executed a deed dated August 25th, 1931, which was recorded on August 28th, 1931, by which she conveyed to Michael J. Lane and Bertha E. Lane, his wife, a tract of land improved by a cottage which she used as her summer home at North Beach Park. The acknowledgment of that deed was taken by Z. Elizabeth Fitzgerald, a notary public, who certified that "on this 25th day of August 191_ before the subscriber a Notary Public in and for the State of Maryland, personally appeared Annie Mead and wife and did acknowledge the aforegoing deed to be her act. In Testimony Whereof, I have affixed my official seal this 25th day of August A.D. 191_." On August 31st, 1931, by deed bearing that date, recorded September 2d 1931, Lane and his wife conveyed the same property to Robert S. Mead and Annie Mead as joint tenants.

The granting clause of that deed described the property granted in these words (in part): "Those pieces or parcels of ground, situate, lying, and being, in Anne Arundel County, State of Maryland, being the same land which the said parties of the first part Michael J. Lane and Bertha E. Lane obtained from Annie Mead by deed dated the ____ day of August 1931, recorded in the Land Records of ____ in Liber ____ at folio ____." In November, 1933, the other surviving children of Mrs. Mead filed the bill in this case against their brother, Robert S. Mead, individually and as executor of his mother's estate, for the purpose of having the two deeds to which reference has been made annulled, on the *Page 596 ground that the deed from Mrs. Mead was procured by fraud at a time when she was mentally incompetent to execute it, and that the deed from the Lanes was merely an incident of a single fraudulent scheme. The defendant answered, denied the fraud, a replication was filed, testimony was taken before an examiner, the case heard, and on February 15th, 1936, the court signed a decree annulling both deeds. From that order Robert S. Mead, defendant below, took this appeal. The testimony is not all conflicting.

There are some facts which are either admitted or undisputed, and they will be stated first. It does not definitely appear how old Mrs. Mead was at the time of her death, but it does appear that she was between seventy and eighty years of age, and that at the time of her death her oldest living child was about forty-four years old. On June 24th, 1902, she executed a will at Hampton, Virginia, in which she distributed her estate equally among her children, and in that will, Henry E. Mead, her husband, and Robert S. Mead, purport to be named executors. Robert at that time was about fourteen or fifteen years old, and in the probated will it appears that his name was written in the will in the place of another name which was there originally, but which had been erased.

There was no explanation of the substitution, nor any identification of the hand by which the substitution was written. It was proved by Robert S. and Henry E. Mead, who made affidavit only to the genuineness of Mrs. Mead's signature. She appeared to be on excellent terms with all of her children. From time to time she helped each of them financially; in the winter she lived in an apartment which Robert Mead, her son, occupied, apparently with his brother Charles, and in the summer she lived either at her cottage at North Beach Park or visited her daughters, who were married and had homes of their own, one in New Jersey, the other in the City of Washington.

When she occupied her cottage, Robert appears to have lived with her, and when he left the apartment for his mother's *Page 597 cottage, the wife of Charles would move into it and live there with him. Notwithstanding her generosity to her children, Mrs. Mead retained some property, and especially the house and lot at North Beach Park, which is the subject of this suit. Her health began to fail some time prior to her death; in August, 1931, she became very ill, and on the 26th day of that month she was removed to the Sibley Hospital in Washington, where she was attended by Dr. A. Magruder McDonald. On the day before she went to the hospital, she was in bed, seemed to be very weak, and apparently in great pain.

On that day her son came to her room, accompanied by a notary public, Mrs. Z. Elizabeth Fitzgerald, who was also a real estate operator, and, in the course of that visit, she executed the deed to Lane and his wife. The notary said that she, Mrs. Mead, produced the deed and that her son, Robert, held her up in bed while she signed it. The second deed from the Lanes to Mrs. Mead and Robert as joint tenants was not executed at that time, and Mrs. Fitzgerald, although she took the acknowledgment of the grantors named in it, testified that she had no recollection of having seen that deed or having taken the acknowledgments of it. When the deed to the Lanes was executed, Mrs. May Belle Gay was staying in the cottage with her mother, and there were present also Mrs. Gay's small son and a nephew.

When Robert arrived with the notary, he requested Mrs. Gay "to keep the children on the back porch as there was a little business that man had to transact," so that neither she nor the children were present while the deed was executed. The controverted issues of fact are: (1) Whether at the time she executed the deed to the Lanes Mrs. Mead was mentally competent to execute a valid deed or contract; (2) whether her son Robert stood in a confidential relation to her at that time; and (3) whether her execution of that instrument was procured by fraud. *Page 598 It is not disputed that Mrs. Mead was at that time very ill, although there is a decided conflict in the medical testimony as to the nature of her illness. Dr. Grafton D.P. Bailey, who had attended her for three years, said that she was suffering from cancer of the bladder and vagina, Bright's disease, and uremia, and that eventually she died from uremic coma. He had attended her shortly before August 25th, 1931, but on that day he happened to be away, and she was so ill that Dr. G.P. Ward was called in to see her.

Apart from stating that when he saw her Mrs. Mead "had abdominal pathology ailment," whatever that may mean, Dr. Ward expressed no very clear opinion as to what was the nature of the disease from which she suffered when he saw her. He did, however, state with assurance that when he saw her she "was capable of transacting any business as much as she had been in any of her previous five years," although he admitted that he had never seen her in those five years nor indeed at all prior to that day. Dr. A. Magruder McDonald attended her when she reached the hospital. He found, he said, no evidence of cancer, but it also appears from his testimony that he did not look for any.

His testimony as to what actually was found is somewhat confusing, as will appear from this extract from it: "In the course of her stay in the hospital we had certain laboratory work done and X-ray in that laboratory. * * * The X-ray report showed that there was apparently some obstruction in the small bowel, and that there was a chronic appendicitis and no obstruction in the small bowel. The laboratory work on her blood was absolutely normal in all phases in the blood chemistry." He found no uremia. In his direct examination he was asked to express an opinion as to Mrs. Mead's mental condition on August 25th, on the hypothesis that her condition then was the same as when he examined her. But since there was no evidence in the case to support that hypothesis, the objection to the question should have been sustained.

He further said that when he examined her he saw nothing unusual in her mental condition. *Page 599 Herman E. Burgess, a neighbor, said that whenever he saw Mrs. Mead she "had her own mind," that she talked "just the same as any one else talked," but he was not sure that he saw her on the day she executed the deed. Margaret V. Sinyard, also a neighbor, who saw her after her return from the hospital, said that she "seemed to be perfectly rational." Robert Lee Tucker, who managed a local grocery store, said that he had seen Mrs. Mead before she went to the hospital, he could not say precisely when, but not "very long," and that then "she seemed as good as ever she was" to him, "her mind was all right." These three witnesses also said that she had told them that she wanted her son Robert to have her property at the "Park." Dr. Bailey was recalled in rebuttal, and after having described her condition was asked: "Based on this condition and the testimony which you have read this morning of the people who saw her on that day, do you or do you not consider on that day her capable of making a valid deed or contract?" An objection to that question was overruled, and witness answered: "From the testimony of one or more witnesses previously taken I would say that she was not capable of making a valid deed or executing any instrument that would normally require the proper intelligence." A motion to strike out the answer was overruled. The question was improper and the objection should have been sustained. The testimony on which he was asked to base an opinion was conflicting; it included opinions and hypotheses; the witness was not required to assume the truth of the testimony, or the existance of any particular facts.

Quimby v. Greenhawk, 166 Md. 335 , 171 A. 59 ; Calder v. Levi, 168 Md. 260 , 177 A 392. He did, however, testify that she was uremic during the period of his attention to her and that that condition stunted the normal brain function. An objection to that testimony was properly overruled, since, as her attending physician, he was qualified to express an opinion as to any condition which he discovered as a result of *Page 600 his examination. Donnelly v. Donnelly, 156 Md. 81 , 84, 143 A. 648 .

Mrs. Fitzgerald testified that on the afternoon of the day when Mrs. Mead executed the deed to the Lanes, Robert Mead called for her and she went with him to his mother; that she found Mrs. Mead lying on a day bed, clad only in a dressing gown; that when the witness asked her how she felt, she said that she was feeling "pretty bad," and produced the deed which she had with her on the day bed. She said that Mrs. Mead was capable of executing such an instrument, and also said that Mrs. Mead told her that she had been trying for a long time to have the papers executed, that she wanted Robert to have the property because he had stayed with her. The witness said that neither Lane, nor any one else, accompanied her and Robert to the Mead home, and she was corroborated in that by Robert, but both May Belle Gay and her nephew Robert L. Gilbert testified that a man did accompany them to the house, and Robert identified the man as Lane. Lane, although present during the taking the testimony, was not called and did not testify.

Mrs. Fitzgerald's testimony is weakened by the extraordinary fact that although she recalled in the most meticulous detail what occurred when she took Mrs. Mead's acknowledgment of the deed to the Lanes, she had not the slightest recollection of ever having taken the acknowledgment of the Lanes of their deed to Robert and Mrs. Mead, and had no recollection whatever of any such deed, although she admitted that she certified the acknowledgment. Robert L. Gilbert, a grandson, then fifteen years old, said that when he saw his grandmother on the day she signed the deed she was moaning; that she did not talk to him except to say good morning; that he thought she was dying. He further said that when Robert and Lane came, his uncle Robert found him on the back porch and said: "I thought I told you kids to get to hell out of here and he put us out and locked the door." Mrs. May Belle Gay was permitted without objection *Page 601 to testify that when the deed was signed her mother's condition was "very bad"; that she "was very sick and complained about being in agony with pains"; that she did not improve during the day; that she was in such agony that she "just kept crying with pain." Mrs. Martha L. Gilbert testified, also without objection, that she saw her mother the morning after she arrived at the hospital. That then her condition was "too bad to talk to her"; that she gave no sign of recognizing the witness; that she stayed two weeks at the hospital; that for three days her condition was very bad; that after that, while "she did not exactly improve, it just seemed her mind cleared a little, she knew us when we went in, but very little talking she did." When she left the hospital she stayed with Mrs. Gilbert four or five weeks, and then "Robert Mead from the Beach came up and got her and took her down; she was not able to travel, she should not have left, she was in no condition, took her down to North Beach." She also testified that: "For her business part, Robert Mead took over all her business; he had charge of her business ever since she lived at the Beach; he did everything that was needed to be done, none of us ever did anything about it. * * * "You testified a little while back that your mother's business affairs were handled by your brother, do you still say that is a fact in view of your present statement that you do not know whether your brother Robert received these rentals or whether paid direct to your mother?

A. It may have come in mother's name. I know if any houses to sell, she would always wait home and wait for his advice before doing anything. "As a matter of fact your mother had a great deal of confidence in your brother Robert? A. Always had, yes." Charles J. Mead, a son, who also saw her on August 25th, 1931, said: "She was suffering from pain?

A. Enough for me to go to a doctor. I ran eighteen miles for a doctor. Second time I have ever seen her that way. "Did she go to the hospital the next morning?

A. Dr. Bailey had been attending to her right along. Dr. Ward *Page 602 said she had appendicitis and would have to go to the hospital right away. * * * Did she talk to you? A. She kissed me and said `How are you, Son?'" Dr. J. Percy Wade, a specialist in mental diseases, called as an expert, after having stated that he had read the medical testimony in the case, was asked: "What is your opinion, after reading their testimony, and considering all the circumstances of the case, as to the capacity of Mrs. Mead, the decedent, to make a valid deed or contract, on the day she made the deed in this case, and give your reasons in full?" An objection to that question should have been sustained, for the reasons stated above in dealing with a question asked Dr. Bailey, and also because it asked the witness not only to express an opinion as to Mrs. Mead's mental condition, but also to exercise a power committed to the court alone, that of resolving the conflict in that testimony. Quimby v. Greenhawk, supra .

He was then asked: In your experience does uremic condition affect the mentality? and answered, "It frequently affects the mentality, loss of memory, they are stupid and depressed frequently." An objection to that question was properly overruled, since as an expert on mental disease he was qualified to describe the effect of the physical condition, ascribed to Mrs. Mead by Dr. Bailey, upon the mental processes of a person in her condition. Dr. Ward, who attended Mrs. Mead on August 25th and 26th, 1931, gave testimony which in some measure was in conflict with that of the other witnesses as to her condition on those days. He said in part: "She was very interesting to talk to, on questioning her about her past history she was very free in giving it, normally free, a woman between seventy-five and eighty, her memory was good, she could relate different instances of her medical life very