Musch v. Underwood

Forsythe, J., delivered the opinion of the Court. The record in this case contains two appeals. William J. Underwood, administrator of the estate of Mary M. Musch, deceased, filed a bill of complaint against Howard H. Musch and Marie M. Musch, his wife. Each of the defendants filed a demurrer to the bill.

The Circuit Court of Baltimore City overruled the demurrers, and these appeals were entered. The bill of complaint alleges that Mary M. Musch, a widow, sixty two years of age died intestate, on April 8th, 1940. She left as her only heirs and next of kin, a son, the defendant Howard H. Musch, and a daughter, Alice Marie Underwood, who since has died, leaving a husband, the complainant, William J. Underwood, and an infant daughter, Charlotte Underwood. It is then alleged that, for more than twenty years prior to July, 1939, Mary M.' Musch owned and lived in her home at 2822 O’Donnell Street, Baltimore City.

Her son, Howard, lived with her until July, 1939, when he removed her to a new home he had purchased at 2704 Pelham Avenue, where she continued to live with him until her death in 1'940. In July, 1939, Howard H. Musch married Marie M. Musch. The bill further alleges that for more than five years prior to her death, Mary M. Musch was in bad health, and in 1937, became very ill, and was confined to her bed with dropsy and heart trouble for approximately six to nine months, and remained a very sick woman from that time until her death in April, 1940. That in ⁴⁵⁷ July, 1939, she sold her O’Donnell Street home for the sum of §1200.

Continuing, the bill alleges that on May 9th, 1940, which was shortly after Mary M. Musch’s death, counsel for the complainant called upon Howard H. Musch, who advised counsel “that he had his mother’s estate, which consisted of approximately §1500 in the Canton National Bank, about §500 from the Metropolitan Life Insurance Company, and the proceeds of the sale of 2822 O’Donnell Street, about §1200, and $100 in another bank; and that he and his said wife, Marie M. Musch, had used all the money in the mother’s estate, prior to her death, to purchase his home, 2704 Pelham Avenue, in July, 1939, which was loaned to him by his mother, Mary M. Musch; and that it was the mother’s wish that her estate be divided between him and his sister, Alice Marie Underwood, but now that Alice Marie Underwood had died, he did not believe her husband, William J. Underwood, should get any of the estate, and that he, therefore, intended to set up a trust fund of Alice Marie Underwood’s one-half share for her infant daughter, Charlotte Underwood, which he would not be able to do until he could arrange a loan on his home, which would require several weeks.” After those allegations the eleventh paragraph of the bill is as follows: “That Howard H. Musch, and Marie M. Musch, his wife, did by fraud and undue influence practiced upon Mary M. Musch, when she was ill with dropsy and heart trouble, and other ailments, caused her to loan the said Howard H. Musch and Marie M. Musch, his wife, the said sums of money and her entire estate, to all of which they, Howard H. Musch and Marie M. Musch, his wife, now claim title with the intent to defraud your Petitioner of the funds and estate of Alice Marie Underwood, deceased, her heirs and next of kin.” The bill then prays that the above mentioned sums of money be declared the property of the estate of Mary M. Musch, and “that a lien be declared in favor of the Petitioner against No. 2704 Pelham