Owings v. Owings

Hammond, J., delivered the opinion of the Court. The appellants, a son and daughter of an aged mother, seek to reverse the decree which set aside a deed of trust from their mother to them as trustees, for her benefit for life, with remainder to the daughter and the transfer of one of the mother’s bank accounts to them as trustees and of another to them individually. The appellee, Mrs. Owings, who said she was seventy-three but, according to her daughter, was seventy-nine, had lived some thirty-five years in one side of a double house she owned in Westminster. The other side was rented.

Her husband, from whom she seemingly had been separated or divorced, had died. In December 1960 she had a stroke and one leg became weak and she suffered falls. She went to the home of her son, Theodore, where she stayed for about a month. Her daughter-in-law was not physically able to continue to lift her when she fell and give her the care she needed otherwise while the son was away at work.

Mrs. Owings’ doctor had told the children, in her presence, that having had one stroke she was likely to have another, which would be completely disabling and that a deed of trust would enable the children to administer their mother’s property. The doctor also recommended that Mrs. Owings go to a nursing home. On January 7, 1961, the secretary of a lawyer who, at the ³⁶¹ request of the children, had prepared a deed conveying the double house in trust, took the deed to the son’s house where, in the presence of the son and daughter, she read it to Mrs. Owings, who signed and acknowledged it. The trustees signed it.

The next day Mrs. Owings was taken to the nursing home. She went unhappily, complained while she was there, and after four months left by herself and went back to her home. The deed of trust recited that the grantor “being of advanced age” feels she can no longer properly manage the house and desires her children, the trustees, to “care for and manage the same for her use and benefit, during her lifetime * * The trustees are directed to pay the net rental income to Mrs. Owings “or to her use, benefit, support or care” during her life and for her burial expenses. A power to sell is given and power to use the principal of the proceeds of sale and the interest therefrom for the same purposes as the rental income.

At the grantor’s death the daughter is to receive the house or what remains of the proceeds of sale thereof, free of trust. Mrs. Owings says that although the deed was read to her she did not understand anything in it and never did know what was in it until her lawyer told her after she got out of the nursing home. She testified that the secretary who brought the deed to her told her that under the deed the children “will always look after you.” She says she was weak, depressed because she did not know if she would ever walk again, and “I signed it to please them.” The secretary, and the son and the daughter testified that Mrs. Owings did understand what the deed meant. While in the nursing home Mirs.

Owings called the secretary to find out if there was anything in the paper she signed that could make her stay in the home. The day after Mrs. Owings went to the nursing home, the son took her bank books and transferred her funds, totalling some $5,500, into two> new accounts. The first was a checking account in the names of the son and daughter as trustees, opened with a deposit of about $2,500'. The other account was a savings account of $3,000 in the names of the son and daughter individually.

At the trial both the son and daughter testi ³⁶² fied that they did not know the savings account was not in trust form. The son collected the rents from his mother’s house from January to October 1961 and deposited them in the checking account. From that account some $2,300 was checked out, all for the maintenance and expenses of Mrs. Owings, leaving a balance of $679.63, according to the testimony of the bank clerk. The savings account was not disturbed.

In late 1961 Mrs. Owings and her son disagreed on who should be a tenant and she, without consulting him, rented to a tenant of her choice and thereafter collected the rents herself. Mrs. Owings’ testimony was that she never authorized the transfer of her bank accounts — there was no contradiction of this statement — and indeed knew nothing of it until, at her lawyer’s suggestion in late 1961, she went to the bank to investigate. The bank clerk corroborated Mrs. Owings’ claim, saying that she seemed, shocked and was very upset to find out she had no accounts. The testimony of the son and daughter was that their reason for causing the execution of the deed and the transfer of the accounts was to be able to care for their mother while she lived and to insure that what remained would go to them because for several years Mrs. Owings had told them she would, if necessary, turn her property over to anyone whn would take care of her.

In the early winter of 1961 Mrs. Owings consulted her lawyer. On January 3, 1962, a bill of complaint against the son and daughter was filed, seeking to avoid the deed and regain the bank accounts. The prayers were that the “alleged Deed of Trust be declared insufficient and that the money in her account in the Union National Bank be ordered returned to her.” A demurrer to the bill was sustained. An amended bill was likewise held bad on demurrer.

Its prayers were that the deed be declared void and the money ordered redeposited in the complainant’s name. A demurrer to a second amended bill (signed only by the complainant) was overruled. This bill contained no prayer for relief other than a request that the court “when it again sustains the Demurrer to this Amended Bill of Complaint, pass an order requiring the Defendants to pay the costs ³⁶³ in these proceedings and to pay the costs of preparing the papers for the Court of Appeals” because she is without funds to pay such costs. The appellants say the second amended bill was bad because it did not state a cause of action and did not specify the relief sought “as required by Rule 370 a of the Maryland Rules of Procedure.” We think the allegations of the challenged bill that the son took her bank books without her knowledge or consent, withdrew her money and that while she was “injured and unwell,” in the home of her son, she was induced without knowing what she was doing to sign the deed, were enough to set forth with reasonable certainty, clearness and accuracy the nature of her claims against her children, that because of her condition and the surrounding environment and actors she had been induced by dominance to transfer property she would not voluntarily have transferred.

The failure to include prayers for relief in the final draft of the bill of complaint is not fatal, we think, under the circumstances. Although an amended bill, complete in all its parts and plainly intended as a substitute for the original bill and so accepted by the parties, will be taken as the only bill before the court, the general rule is that an original and amended bill are treated as one entire bill and as constituting, in fact, but one record and, after a bill has been amended, thereafter the proceedings are on the original bill so amended. Walsh v. Smyth, 3 Bland 9 , 20; Miller, Equity Procedure, Sec. 188; Conroy v. Agricultural Assn., 165 Md. 494, 504 . This rule has been applied to prayers.

Upman v. Thomey, 145 Md. 347, 361-362 ; England v. Gardiner, 154 Md. 510, 513 . We think the prayers for relief in the earlier bills may be read into the final amended bill. Judge Boylan held that the deed was of no effect because it was not acknowledged by the trustees. We think the signing and acknowledgment by the grantor, and the timely recording of the instrument met the applicable requirements of Code (1957), Art. 21. “It has long been settled that if two parties enter into an indenture or agreement intended to be signed and sealed by both, but in fact signed and sealed only by one, that ³⁶⁴ it will be the covenant of him who has signed and sealed.” Western Md. R. R. Co. v. Orendorff, 37 Md. 328, 335 ; Eastern Ave.

Corp. v. Hughes, 228 Md. 477, 479 . See also 1A Bogert, Trusts &