O'Connor v. Estevez

Marbury, J., delivered the opinion of the Court. This is a bill of complaint filed by a husband and wife against the next of kin and heirs at law, and the administrator of an intestate who died seized and possessed, according to the records, of a farm in Charles County, Maryland, and crops, livestock and farming equipment located thereon. The purpose of the proceeding is to have the court determine the respective rights of the parties in such property. The complainants claim that it was agreed at the time of purchase between them and the decedent, James Leo O’Connor, that they should hold the property in common, that the property was purchased with a considerable contribution of cash made by them, that the mortgages placed thereon at the time of the purchase were paid off largely with the proceeds of the crops raised by them on the farm, and that the buildings on the farm were improved and constructed in part by them and in part by contractors who were given notes which were paid by the proceeds from the farm.

The defendants demurred, the demurrer was overruled, and thereupon they answered denying the pertinent allegations of the bill, and alleging that James Leo O’Connor died intestate, seized and possessed of ⁵⁴⁴ the real and personal property mentioned in the bill. Testimony was taken on behalf of the complainants only. The chancellor passed a decree that a one-half interest in the property be impressed with a • trust in favor of the complainants, directed the conveyance of such interest in the real estate to them, and appointed a trustee to make such conveyance in case of the failure of the defendants to do so. The decree also directed the defendant administrator to pay to the complainants one-half of the personal estate derived from the farm.

The theory of the chancellor was that the proof disclosed a situation which warranted him in holding that a constructive trust existed. The defendants contest this, claim there was laches on the part of the complainants in asserting their claim, and error in various rulings of the chancellor on the admissibility of evidence. The demurrer was properly overruled. The bill alleges an agreement between the decedent and the complainants to purchase the farm, it to be operated and developed by the complainants with financial contributions by the decedent.

It then relates the carrying out in part of the agreement by the purchase of the property for $6,200, $2,500 in cash and the balance secured by two mortgages. Title, as agreed, was taken in the name of the decedent, but the property was to be for the mutual benefit of decedent and the complainants as tenants in common. It then relates the cultivation and improvement of the farm by complainants, and the deposit of proceeds from the sale of crops in bank to the credit of the decedent in an account in which he also made deposits. From this account were paid current expenses of the farm, and from this account were liquidated the two mortgages against the property.

The court is asked on this statement of facts, to determine that the heirs and administrator of the decedent hold the farm and the personal property thereon for the mutual benefit of decedent and the complainants. This is a good complaint, alleging an express trust. It is not necessary that such a trust be in writing. It must be ⁵⁴⁵ evidenced, as to the real estate, by some writing, signed by the party enabled by law to declare such trust.

Statute of Frauds, 29 Car. II, Cap. 3, paragraph VII. The evidence does not have to be stated in the bill. Beachey v. Heiple, 130 Md. 683 , at page 693, 101 A. 553 ; Alexander’s British Statutes, Coe’s Edition, Vol. 2, page 743, and cases cited.

The facts set out in the bill are also sufficient to justify the court in declaring that a constructive trust exists. This does not have to be evidenced by writing. Statute of Frauds, paragraph VIII. The defendants rely solely on failure of proof.

They offered no evidence on their own behalf. They did not cross-examine the witnesses for the complainants. They objected to much of the evidence offered on the ground that it was given by parties to the cause in respect to transactions had with, or statements made by, the intestate, whose administrator and heirs are defendants. They cite as authority for their position Section 3 of Article 35 of the Code of Public General Laws, 1939, which forbids the acceptance of such evidence.

We are not unaware that this and similar statutes in other jurisdictions have been lately much criticized by eminent legal authorities. A notable instance of such criticism is found in Wigmore on Evidence, 3rd Ed., Vol. II, paragraphs 578-578a. A committee of the American Bar Association has also recommended its modification.

But the statute has been enforced in many decisions of this court, and the doctrine of stare decisis, as well as the constitutional limitations on the respective powers of the legislative and judicial branches of our government, forbid us now to change these decisons. If the rule of evidence is to be altered, the General Assembly, and not the courts, will have to indicate in what respect and how. In considering the evidence admitted over the objection of the defendants, we note the statement of the chancellor, appearing in the record, that whenever a question was objected to, it would be understood that an exception was reserved by the party against whom ⁵⁴⁶ an adverse ruling was made. This practice has been recently approved in the case of Buch v. Hulcher, 180 Md. 309 , at page 314, 23 A. 2d 829 .

The appellants cannot, however, now stretch this understanding to cover questions to which they made no objection. We have confined our review of the objected evidence to that which clearly appears to have been ruled on by the chancellor. A general objection to all of a certain kind of evidence is too uncertain and indefinite to justify us in considering that it applies to questions and answers which do not otherwise show a ruling by the chancellor. Speaking of such a general objection (exception in that case) this court said: “Under such an exception, the court is not required, and cannot be expected, to go through the testimony and pick out such questions as are objectionable because the witness is incompetent to speak of the subject referred to.” Smith v. Humphreys, 104 Md. 285, 286 , at page 289, 65 A. 57 , at page 58; Russell v. Carmen, 114 Md. 25 , at page 36, 78 A. 903 .

The evidence admitted over objection is that of Marina Estevez, one of the plaintiffs. She was permitted to testify that she made the first payment down on the farm of $1,000 to the Strout Agency in New York City; that she had visited the farm before, in company with Mr. Estevez and Mr. O’Connor; that an additional $1,500 was paid at the time the deed was drawn, of which she paid $325, Mr. Estevez paid $405, and Augusta Martinez, a domestic who had then been in her employ for a number of years, contributed $60. A part of the money Mr. O’Connor had borrowed on an insurance policy, and the rest was paid from his salary check. She also testified that Mr. O’Connor, after the purchase of the property, contributed to the support of her family, sending $75 every month for three months of the first year, the second year $60 a month, the fourth year $40 a month, and the rest of the years it has been $30 a month, until September or October, 1940, when he started sending $40 again.

She was also permitted to testify that when Mr. O’Connor visited the farm he never paid any ⁵⁴⁷ board. All of this testimony not only has to do with transactions had with Mr. O’Connor by one of the parties to the case, but it concerns the very transaction in suit here. We think the witness was incompetent to testify to these matters under the previous decisions of this court. Martin v. Munroe, 121 Md. 679 , 89 A. 319 ; Tillinghast v. Lamp, 168 Md. 34 , 176 A. 629 ; Garner v. Garner, 171 Md. 603 , 190 A. 243 ; Mays v. Mays, 176 Md. 159 , 4 A. 2d 121 ; Dowell v. Dowell, 177 Md. 370 , 9 A. 2d 593 , 125 A. L. R. 1008.

The refusal of this court to bar a widow from testifying in a case where there was no personal representative of her husband a party to the case (Weir v. Baker, 181 Md. 249 , 29 A. 2d 269 ) is not a relaxation of the rule of the statute, but merely a restriction of it to exactly what the statute says. This brings us to a consideration of the rest of the evidence, that to which no objection was made, or which was in our opinion properly admitted, over objection. That evidence consists of the remainder of the testimony of Marina Estevez, the testimony of her husband which was not objected to, and the testimony of their married daughter, as well as certain documentary evidence, consisting of the deed to the property, the mortgages, a letter from Mr. O’Connor, and certain notes which were signed by Mr. O’Connor and Mrs. Estevez. Mrs. Estevez testified that she and her husband, her five sons and her daughter, and a servant came to the farm in Charles County on July 9, 1932.

The family was of Spanish descent, had been in this country twenty-one years, and Mr. Estevez was a naturalized American citizen. They became acquainted with James Leo O’Con-nor in the spring of 1908 in New York City, where Mrs. Estevez and another woman ran an apartment house. Her husband was employed there. Mr. O’Connor had an apartment there.

On August 25, 1932, F. Philip Moran and wife conveyed to Mr. O’Connor, in consideration of $6,200, the two tracts of land in question in this case, located in Charles County, containing about ⁵⁴⁸ 400 acres, this deed being admitted in evidence without objection. The Estevez family resided continuously on the farm since its purchase. There were two mortgages placed upon the farm, one for $2,700 and one for $1,000, both of which were afterwards paid off. She was asked: “Who settled them; who.paid them off?” The counsel for the appellants said: “No objection to that,” and the witness answered: “Every time we sold a crop of tobacco; in 1939 we sold a crop and we paid the Cooksey estate”; and then upon being asked by counsel for appellants who she meant by “we,” she said: “Well we sold a crop of tobacco, my husband, we sold the tobacco with Mr. O’Connor’s permission.” Counsel for appellants then objected, but in view of his previous waiver this objection was much too late.

The witness then testified that the balance, after paying the mortgage, she put part in the Hughesville Savings Bank, that the money to pay the mortgages off came from the tobacco crops grown on the farm. Two barns have been built on the property and the main building has been renovated, and several other small buildings. This was done by her husband. He was not paid anything for this work by Mr. O’Connor.

Her two big sons did the work without being paid anything and her son George also. They hired one man to help. Later her younger son, George, got married, and then he got $40 a month and 5 per cent, of the crops. The money they used to make, they put in Mr. O’Connor’s bank account in the Hughesville Bank.

The witness identified the deposit book in which she deposited the proceeds and stated that Mr. O’Connor deposited his salary in the same account. He was a salesman for the Revere Copper and Brass Company in New York. Mr. O’Connor visited the farm several times during the year, in the spring, in July during his vacation, between July and December, and he always spent Christmas there. The witness also said that she sold some eggs and sometimes she put the money from the eggs and chickens in the expenses on the farm.

She had frequent correspondence by letter with Mr. O’Con- ⁵⁴⁹ nor, usually once a week, and a letter from him on January 29, 1933, to her, a few months after the place was bought, was admitted into evidence without objection. This letter is as follows: “Sunday — 1/29/33 “Dear Marina— “I have your letter and I can understand why you are feeling so bitter. I know that I have not been able to give you anything like what I should and you do not & cannot realize how much pain it causes me to know you are so unhappy. Certainly you do not deserve to be unhappy.

But I cannot seem to do any better. You asked me in your letter to advise you how we are going to meet expenses & that is why I referred to the matter. “I am sending you my salary check for deposit and also your check for February. You will notice that the salary check is reduced 10%. I knew that since before Christmas & it has been worrying me sick but I did not want to tell you or cause you to worry any sooner than I had to.

Everybody in our company from the president down was obliged to take a salary cut as our company is in very bad condition. And on top of all of my troubles I had to pay back taxes on the land I own in Baltimore as the authorities threatened to sell the land for taxes unless I paid. “I am sorry you wrote anything about fixing my property and it hurt me that you should have even thought that because you know it is yours as well as mine and you know that I have been pleading with all of you not to make any repairs that could possibly be put off & urging that we devote all of our efforts for the first year or so towards making conditions better for you. But I know that you too have been suffering & many times we say things we do