Measley v. Housman

Thomas, J., delivered the opinion of the Court. On the 24th of May, 1921, the appellees, George M. Housman, Wilson TIousman and G. Orville Bull filed in the Orphans’ Court of- Baltimore County a petition alleging that, under the will of Hester C. Baker, of Baltimore County, deceased, which was duly admitted to- probate by said court on March 22nd, 1921, the appellees were the residuary legatees and devisees, after the payment of the debts and funeral expenses of the testatrix and a legacy of $500 to Addie Blanche Measley; that the petitioners were the nephews of the testatrix, and that, after the inventory of the real and personal property and a list of the debts of the testatrix had been filed in said court by Isaac Shaver, the executor, the petitioners entered into the following agreement and supplemental agreement with the said Addie Blanche Measley: “This agreement, made this first day of April, A. D. 1921, by George M. Housman, Wilson Housman and G. Orville Bull, parties of the first part, and Addie Blanche Measley, party of the second part. “Witness said George M. Housman and Wilson Housman, of the first part, agree to pay Addie Blanche Measley $500 each, and G. Orville Bull, of the first part, agrees to pay Addie Blanche Measley $1,000. The said Addie Blanche Measley, of the second part agreed to accept this, with the amount of legacy named in her mother’s will of $500, as her share of all the personal and real property of which her mother possessed at her demise. “It is also agreed in the event of either party of the first part failing to abide by said agreement, then each party shall forfeit $3,000 to be paid to the party of the ³⁴¹ second part, and in the event of the party of the second part fails to abide by said agreement then a forfeiture of $3,000 shall be paid to each of the parties of the first part. “Witness our hands and seals day and year first written. “(Signed) “George M. Housman, (Seal) “Wilson Housman, (Seal) “G. Orville Bull, (Seal) “Addie Blanche Measley. (Seal) “Witnesses: “(Signed) Isaac Shaver, “(Signed) J. M.'Routson.” “Hew Freedom, Pa., April 4, 1921. “All of the parties to this agreement, George M. Housman, Wilson Housman, G. Orville Bull and!

Addie Blanche Measley, being present at the office of W. H. Freed, at New Freedom, Pa., have agreed and do hereby agree and consent that the within agreement shall be and is hereby endorsed to the effect that the money affected by this agreement shall be payable immediat ely upon its receipt from the estate of Hester O. Baker to the within-named beneficiaries and parties hereto, and that the heirs, if any, of the parties hereto shall be bound for the faithful performance of all and every the covenants and agreements in the within and foregoing agreement, same as and in all respects fully and like the parties hereto. “Witness our hands and seals, at New Freedom, Pa., this fourth day of April, A. D. 1921. “George M. Housman, (Seal) “Wilson Housman, (Seal) “G. Orville Bull, (Seal) “Addie Blanche Measley. (Seal) “Witness: “W. II. Freed, “Lida Freed.” ³⁴² The petition further alleged that, prior to the execution of said agreement, the said Addie Blanche Measley “expressed dissatisfaction” with the terms of said will, and that said agreements were entered into for the purpose of satisfying and settling all her1 claims to the estate of her mother, .and that she agreed to> accept the sum named in the agreement of April 1st, at the time mentioned in the agreement of April 4th, “in full of her share” of the real and personal estate of which her mother died possessed; that the time fixed by said agreements fox the payment of the sums therein mentioned is the time of the distribution of said estate, and that the petitioners are ready and willing to pay the same when the estate of the testatrix is distributed; that, notwithstanding said agreements, tihe said Addie Blanche! Measley on the 28th day of April, 1921, filed a caveat to said will of her mother; that said agreements are in full force and effect and operate as a bar to any proceedings by her to set aside her mother’s will, and that the penalty provided for in said agreements has been disregarded by her; that on March 30th, 1921, the said Addie Blanche Measley telephoned- to George M. ITousman, one of tire petitioners, and requested an interview with him; that said Housman saw her and talked with her, and later in the same day she visited him at his house ; that she said to him that she had received letters from different persons advising her to attack her mother’s will, but that she would he perfectly satisfied if she received from the estate $2,000 in addition to the legacy of $500; that in pursuance of these statements the petitioners went with her at her request to the home of Isaac Shaver, the executor named in the will, for the purpose of having the agreement proposed by her reduced to wilting; that said agreement of April 1st was accordingly prepared by Isaac Shaver and was signed-and sealed by the said Addie Blanche Measley and the petitioners, and said supplemental agreement of April 4th was prepared by Mr. W. H. Freed, of New Freedom, Pennsylvania, and executed Vy them, and the agreements, at her request, were left with ³⁴³ the said Freed for safekeeping; that at- the time of the execution of said agreements the said Addie Blanche Measley promised and agreed not to file a caveat to said will; that she knew at the time of the execution of said agreements that the gross value of" her mother’s estate was approximately $15,000 ; that by said agreements she released all of her interest in her mother’s estate;, and particularly her right to institute and maintain a caveat to said will.

The prayer of the petition was that said caveat be dismissed by the orphans’ court, and that court passed an order requiring the, said Addie Blanche Measley to show cause why the prayer of the petition should not be granted. On the 8th of June, 1021, Mrs. Measley filed an answer to-said petition, .in which she alleged that her mother did make a, will which was duly executed by her, and that before leaving the cemetery, on the day of her mother’s funeral, Isaac Shaver announced that the will would be read at her mother’s house; that she went from the cemetery to her mother’s house, and that then and there the said Isaac Shaver read what- purported to he her mother’s last will and testament; that- thereafter she expressed dissatisfaction with the terms of said veill to George M. Housman, and (not knowing the true state-of facts in regard to the destruction of .said will by her mother) “offered to compromise and to take an equal share-with the said George M. Housman, Wilson Housman and G. Orville; Bull”; that sin; was told that that could never he, and was persuaded by the said petitioners, “through their fraud and deceit” to enter- into said agreement, “they * * * well knowing at the time * * that the said alleged will of rlie decedent had been destroyed by her in her lifetime and that the said Hester C. Baker did in point of fact die intestate” ; that she, the said Addie Blanche Measley, “had no-knowledge whatsoever of the destruction of said will, which was well known to- the- said George JVI. Housman^ Wilson Housman and G. Orville Bull, and no-t knowing of the destruction of ,said will, * * * she signed the agreement men ³⁴⁴ tioned in the petition”; that said agreement and her signature thereto were procured by the fraud and deceit of said petitioners, and that she signed said agreement because she thought her mother had died testate and that said will was valid, “when in point of fact said will was invalid and her mother died intestate.” The petitioners filed a general replication to the answer of Addie Blanche Measley, and thereafter, upon the application of the petitioners, the orphans’ court sent to the Circuit Court for Baltimore County for trial the following issue: “Was the agreement” of April 1st, 1921, and “the supplemental agreement” of April 4th, 19>21, “or either of them, * * * procured by fraud or deceit exercised and practiced upon the said- Addie Blanche Measley by -the said George M. IIousman, Wilson Housman and G. Orville Bull, or By any one of them ?” At the trial of the case in the circuit court, the appellees (.defendants below) produced William H. Freed, who testified that he was the cashier of the First National Bank of New Freedom, Pennsylvania, where he resides, that he knew the parties to the suit, that he had the agreement in question, which he produced, .and that the parties interested therein gave it to him fox safe keeping in his office on April 4th, 1921, at which place and time the supplemental agreement on the hack of the original agreement was made. On cross-examination he stated that the supplemental agreement was drawn up and signed in his office at his house on April 4th, 1921; that no one of the parties thereto “dominated the conversation, but all took part in the discussion” ; that he “typewrote” the supplemental agreement on the hack of the original agreement, and “had kept it ,at his bank practically ever since.” The defendants also produced Isaac Shaver, who testified that he lived at Freeland, Maryland, and was named as executor in Mrs. Baker’s will; that the paper handed to him in court was an agreement made by the plaintiff and the defendants, all of whom signed it in his presence on ³⁴⁵ April 1st, 1921, and that his signature appears thereon as a witness.

The plaintiff, Mrs. Measley, then produced Mrs. Adella Foust, who testified that she lived at Ecikloe, near Ereeland, Maryland, and had known Mrs. Baker and her daughter, Mrs. Measley, for five years; that Mrs. Measley and her husband lived on the farm of Mrs. Baker; that about 2 o’clock in the afternoon of the day on which Mrs. Baker died she went to Mrs. Baker’s house, and that Mrs. Bull, the mother of G. Orville Bull, Mrs. George M. Housmau and Mrs. Measley were there. Mrs. Gore testified that .she knew Mrs. Baker and Mrs. Measley; that after Mr. Baker’s death Mrs. Measley’s husband farmed the place fox Mrs. Baker. Mrs. Wilson testified that she knew Mrs. Baker and her daughter, Mrs. Measley, and .that after Mr. Baker’s death Mrs. Measley and her husband moved to Mrs. Baker’s to live. Isaac Shaver, who was- called as a witness- by the plaintiff, testified that he lived at Ereeland, that he was a. retired school teacher, and had taught both Mrs. Baker and her daughter, Mrs. Measley; that about 2.30 iu the afternoon of the day Mrs. Baker died (March 16th, 1921), while he was out on his son’s farm, lie was visited by Mr. George M. Housmau and Mr. Benjamin Bull, father of G. Orville Bull, who brought him a paper shoe box which they said contained the “'valuables” of Mrs. Baker, and then left him; that he went to the house and examined the contents of the box, which consisted of several certificates of deposits in banks-, a will, a gold watch, three rings, a mortgage for $1,400, a note for $500' in favor of Mrs. Baker, and probably some tax bills-; that he found the envelope, “in which the will was sealed when she signed it, open”; that when he examined the contents- of the envelope, lie found that a part of the will was missing; that the part that was torn out and missing was. the part which reads “I give, bequeath and devise to- my nephews, George M. Houseman, Wilson Houseman and G. Orville Bull, all the rest and*residue of my property, real, personal ³⁴⁶ •or mixed, wheresoever situated, which I now own. or may hereafter acquire and of which I shall die seized or possessed, share and share alike”; that the part of the will that was tom out was not' in the envelop©;, it was detached and was not brought to him; that after an early supper at his son’s home he drove over to Mrs. Baker’s house, and that when he got there he met George M. Housman “in the driveway outside” and told him of the condition of the will and showed it to him; that as Benny Bull was with George Housman when the envelope was delivered to him they telephoned to him and waited for him to arrive before beginning to search for the missing part of the will; that when Benny Bull arrived they went upstairs aud opened an old desk belonging to Mrs. Baker which contained a number of papers, and found the missing part of the will among them; that they matched it and found it to he the part that 'had been torn out of the will, and that he ,put it in the envelope which contained the balance of the will and took it home with him; that after lugot home he procured some “transparent stickers” from his son’s store, fitted the missing part of the will into the will and put the stickers on; that on Saturday after the funeral he went back to Mrs. Baker’s house and read the will and then placed it in the envelope from which he had taken it. and put the envelope in his pocket; that after he read the will, “I made the remark of the condition of the will to the folks in the room; that that was the condition in which I received it,” and that Mrs. Measley, G. Orville Bull.

George M. Housman and Wilson Housman were in the room. He also testified that he did not remember telling Mrs. Measley. or any one else in her presence, that a part of the will had been tom out and was missing; that on April 1st, 1921, at the request of the plaintiff and the defendants, who called on him at his home, he drew up the contract of that date; that .after they had reached an agreement and the contract was drawn up, he took Mrs. Measley in a private room 'and asked her if she knew what she was doing and if she was satisfied, ³⁴⁷ and that she said she understood the contract and was satistied, and that they then signed the contract in his presence and the* presence of the other witness; that he'did not remember telling Mrs. Measley on that occasion that a part of the will had been torn out; and that he “qualified” as the executor named in the will. On cross-examination he testified that when Mr. George M. liousman and Mr. Benny Bull brought him the shoe box containing the papers and valuable® of Mrs. Baker they told Mm that they had found them in a desk upstairs in Mrs. Baker’s house, and that they ascertained that he was the executor from a letter from him to Mrs. Baker; that he recognized the envelope in the box as the one in which he had placed the will, and then sealed and deli vered it to Mrs. Baker; that on the outside of the envelope was written, “Last will and testament of Hester O. Baker”: that when he took the envelope out of the shoe box one end of it had been torn opon; .that when they subsequently found the missing part of the will, “he matched it” and found that it was a part of the will as it had been written by him in his-handwriting; that when he read the will to the family after the funeral Mrs. Measley was in the room, and that after he read it he held it np- “and said this is in the condition this instrument of writing came into my hands”;