Reil v. Wempe

Urner, J., delivered the opinion of the Court. In September, 1922, George H. Wempe, a resident of Baltimore, learned that he had pulmonary tuberculosis, and that, if he remained in the city, he would probably live only six or eight months. To his physician, Dr. George J. Heck, from whom he obtained that information, he said that he wanted to know whether he could live or not, because he ⁴⁵¹ wished “to fix matters” so that the Reil family who “nursed him and took care of him” should receive his property, and that he did not want to have it go to “his people.” Mr. Wempe, who was a bachelor about fifty-seven years of age, was then living' as a boarder in the home of Mary Quinn, a member of the family he mentioned, and he continued to live there until the time of his death on March 13th, 1923. His health failed rapidly in the fall of 1922, and from January 13th, 1923, to the time of his death he was confined to his bed and was nursed by Mrs. Quinn and her mother, Mrs. Reil.

From November 1st, 1922, to January 20th, 1923, Mr. Wempe made various transfers of real and personal estate valued at approximately $12,000 to members of the Reil family, and since his death intestate the appellees, as his heirs and next of kin, have brought this suit in equity to have those dispositions annulled on the theory that they were procured by undue influence. The lower court so decreed, and this appeal has resulted. There is no dispute as to Mr. Wempe’s competency to make the transfers which the decree below vacated. It was his clear legal right to select the appellants as the objects of his bounty.

If he disposed of his estate in the free exercise of his own will and judgment, the court is not authorized to nullify his donations because of a judicial belief that they may have been too generous, or that they disregarded considerations of kinship which should justly have been recognized. Simpson v. League, 110 Md. 293 . In view of the unquestioned mental capacity of the donor, and there being no suggestion in the evidence that any fraud or deception was practiced, we have only to inquire whether he was unduly influenced in making the gifts in controversy. The intimate association of Mr. Wempe with the Reil family existed for many years before his death.

About five years before that event, when he had retired from his employment as route superintendent for a brewing company, and was living at the home of a brother-in-law, he became afflicted with a large carbuncle on his neck. He mentioned ⁴⁵² to Mrs. Neil the fact that he had been advised to enter a hospital for treatment, but said he was unwilling to do so, and she suggested that he come to her home to have the carbuncle treated, and consequently he went there daily for that purpose during a period of several months. Mrs. Beil’s daughter, Catherine, afterwards Mrs. Barry, dressed the carbuncle as often as four times a day. No charge was made for these attentions.

As an evidence of his appreciation, Mr. Wempe gave Miss Catherine fifty dollars in gold and is said to have also given her a diamond ring. About three years later he moved from his sister’s home to that of Mrs. Quinn on North Avenue, nearly opposite Mrs. Beil's dwelling. For his room and board he paid Mrs. Quinn nine dollars a week. He spent a great deal of his time in Mrs. Beil’s home and became very fond of all the members of the family.

The principal transfers in litigation were made ■ to her unmarried daughter, Margaret, but there appears to have been an understanding that she would divide the money and property she received with her sisters, Mrs. Quinn and Mrs. Barry, and her brother, Lawrence Beil, and his children, in certain proportions. The nearest relatives of Mr. Wempe were two sisters, a brother, and six nieces and nephews, none of whom were dependent upon him, and with all of whom he apparently was on friendly terms during the latter part of his life, although a number of years previously there had been an estrangement. There is evidence that he expressed a special interest in two of his nephews. The estate of Mr. Wempe was mainly derived from that of his mother, who died in 1901.

On November 1st, 1922, Mr. Wempe transferred to Mrs. Quinn five shares of the capital stock of the Consolidated Gas Electric Light and Power Company of Baltimore City. This gift was made, as Mrs. Quinn testified, because she “had lost some money in a certain concern, and he said he would not let me lose that money, and he said, ‘I’ll give you $500 because you were so good to me.’ ” ⁴⁵³ About two weeks later Mr. Wempe went alone to the northeast branch of the Calvert Bank, where he had a savings account in which there was a balance of $3,287.21, and caused the account to be entered in the name of Margaret A. Neil, in trust for herself and George H. Wempe, subject to the order of either, and the balance at the death of either to belong to the survivor. 'Mr. William T. Helmsley, who was manager of the bank’s northeast branch, testified in regard to the transaction as follows: “As far as 1 can recollect, Mr. Wempe spoke to me in reference to this matter some six years ago. At that time he had some affection of the neck, * * * and 1 did not see him again for a few wueks, perhaps longer. He came back and made a fifty-dollar withdrawal and asked me if I could either give him that in gold or a gold note, and he stated that he wanted that as a gift to someone who had nursed him; that this party had been very nice to him and he wanted to show how he appreciated it, and he said if T should ever want to transfer my account to some name so a certain individual could get my money, how could 1 go about it?

And I told him the different ways he could go about that according to bank procedure.” In August or September, 1922, Mr. Helmsley said, “Mr. Wempe came to see me, asked to see me personally in my office. He told me that he had — that he believed he had some incurable disease; * * * He said 1 come to you in a confidential way; * * * I want to speak about certain matters that concern me. He told me he had some difficulty with his family of long standing, and that on account of their attitude towards him, he did not feel that he wanted any of his estate to go to them. * * * I said, ‘Why don’t you. leave a will, if that is the way you feel about it? ’ * * * and he said, No; 1 want this thing that after — if anything happens to me there is no question about who gets the money * * * In our conversation I told him that if 1 were in his place, I would go a little slow about changing an account over to any individual outside of his family. I said, George, I feel that you have some obligation to your family — your ⁴⁵⁴ brothers and sisters.

He said, 'That does not enter into it at all. I am asking you a question what I should do to transfer this money to a young lady whom I want to have every cent I have.” The court inquired: “Did he give you the name?” and Mr. Helmsley replied: "Yes; Miss Margaret Beil. He told me he had known this gii*l from her childhood up, and he could trust her and wanted her to have the money.” Continuing, Mr. Helmsley said: “There was an interim of about two- months, as I can recall. Mr. Wempe came in off and on and asked questions about it, and asked whether I was positive this thing would work without any lawsuit or trouble, and I told him that as fax as my experience went 1 never knew one of these accounts to he set aside only unless insanity could be proved.

He said: 'I Avant you to bear in mind I Avant this young lady to have my money under any circumstances and I am perfectly all right in talking to you about it.’ ” In referring to his family, Mr. Wempe told Mr. Helmsley that “in times AA'hen he was sick and needed a home they- did not seem to- Avant him,” and in regard to Mrs. Beil’s family he said that he had been associated Avith them for a number of years and “they had shown him every kindness and taken him as a member of the family when he was sick, he had a home there and they nursed him.” “The next occasion,” said Mr. Helmsley, “was when he came in some time the early part of November * * * and told me he had definitely made up his mind he wanted to transfer this account to Miss Margaret Beil’s name. * * * I again told him I Avould not act in haste if I was in his place. It was rather a serious thing to give all of his estate aAvay while he Avas living, without giving his family some consideration. He told me he thought this thing over at length, and this was exactly Avhat he wanted to do-. I gave him the card, and he asked me to- make out the card so there would not be any mistake about it, and I filled in the name and got him to sign that card and got him to take it home for her to sign.” It placed the account under the terms of the trust already described, which was ⁴⁵⁵ complete and irrevocable.

Milholland v. Whalen, 89 Md. 212 ; Littig v. Mount Calvary Church, 101 Md. 494 ; Mulfinger v. Mulfinger, 114 Md. 463 ; Stone v. National City Bank, 126 Md. 231 ; Farmer v. Farmer, 137 Md. 84 . On December 1st, 1922, Mr. Wempe executed a deed conveying' to Margaret Beil seven ground rents subject to his life estate therein reserved. The deed was prepared by Harry M. Benzinger, Esquire, who had been Mr. Wempe’s counsel for many years. When asked to state the circumtances under which the deed was prepared and executed, Mr. Benzinger testified: “Mr. Wempe had been to my office, T think, probably twice before and requested me to make this deed out, and 1 objected to making the deed out * * * .

I told him I thought it was very bad policy for a man to get rid of his property while he lived; that he might want to take it back again, and that it was not a good thing to do, and to go- home and think it over. And then he came back again and he told me he wanted to draw the deed.” According to Mr. Benzinger’s recollection, it was not until Mr. Wempe had called the third time to see him in reference to the deed that it was finally prepared. It was executed in Mr. Benzinger’s office. On the day after its execution it was recorded.

In regard to Mr. Wempe’s physical condition at that period Mr. Benzinger testified: “lie said he was going to make a die of it, and when he came to execute the deed he had all the indications of it.” But in regard to the grant- or’s mental condition Mr. Benzinger said it was “clear as a bell.” In answer to' a question as to whether Mr. Wempe stated “what the prior consideration was which moved him to make the deed,” Mr. Benzinger said: “Yes; the treatment that he had received at the hands of the Beil family. Q. And what did that treatment consist of? A. He said they had been everything to him that his own parents and brothers could have been.” Early in November, 1922, Mr. Wempe called to see his sister, Mrs. Coxon, who lived at Overlea, and asked her to pay a loan of $1,900 which he had made to her in 1914, and ⁴⁵⁶ for which, she had given her promissory note. On December 23rd Mrs. Coxon gave her brother a check for $2,100 in payment of the note and interest.

The check was endorsed by Mr. Wernpe and by Margaret Neil and deposited to the credit of the account in the northeast branch of the Calvert Bank. On January 10, 1923, Mr. Wernpe went with Margaret Neil to the Safe Deposit and Trust Company’s office, introduced her to the custodian of its vault, and had her name entered on its books as one entitled to have access to his safe deposit box. There were in the box two certificates of Consolidated Gas Electric Light and Power Company stock, for five shares each, which Mr. Wernpe endorsed, and which Miss Neil, at his request, on January 16, 1923, surrendered to the corporation in return for certificates in the names of her brother, Lawrence, and her sister, Catherine. The new certificates were placed in the safe deposit box, and Miss Neil later delivered them to the transferees, as Mr. Wernpe had directed.

A promissory note of Adam A. Bittner and wife for $1,000, held by Mr. Wernpe, was assigned by him to Margaret Neil on January 20th, 1923. Mr. Bittner, who is a police officer, testified: “I went to' see Mr. Wernpe and he was in bed * * * and he looked very bad, although I felt satisfied that he knew what he was talking about. And I said, ‘No doubt, you sent for me for some money’ * * * ‘No,’ he said, ‘I am going to die, and the reason I sent for you,’ he says, ‘that money that you owe me, I don’t want you to pay to anyone a,t all.’ He said, ‘I don’t want you to pay that to anybody at all but Miss Margaret Neil,’ and she was standing there. Q. Did he say why he wanted you to pay that to Miss Margaret Neil ?

A. He says, ‘She has been faithful to him during all his sickness,’ and then he was getting very weak. * * * ” This interview occurred about four weeks before Mr. Wernpe died. ■ Some time in December, 1922, Mr. Charles Trageser visited Mrs. Neil’s home, as he testified, and had a conversa ⁴⁵⁷ tion with Mr. Wempe, in which his conveyance * of ground rents to Margaret Reil was mentioned as having beeu reported in the “Daily Record,” and Mr. Wempe said: “Yes; he had made a disposition to Margaret Reil. He thought Margaret was a good girl, and that she would carry out his wishes as he intended.” Several times previously, “months before,” Mr. Trageser said, he spoke of “transferring his property, dividing it among the Reil family. * * * ELe told me that the Reil family had been very good to him, that none of his people had done anything for him, and that he wanted to repay them in some shape or form.” All of the witnesses to whom we have referred were wholly disinterested. Their testimony tends strongly to prove that the transfers which are sought to be vacated were made by Mr. Wempe in the exercise of a competent, independent, and deliberate judgment. The assignment of his bank account was discussed repeatedly with an official of the bank, and the conveyance of his ground rents was the subject of several interviews with his counsel, and in each instance the strength and persistence of his purpose prevailed over the earnest advice he received against the action which he contemplated.

Those dispositions were made by a man of mature years and experience, and of undoubted mental capacity, to a girl nineteen years of age whose only influence upon him appears to have been that of helpful kindness. The opinion of this Court in Barron v. Reardon, 137 Md. 313 , refers to the “influence of affection, attachment, or gratitude, which does not make a gift void, and the more especially when it is but the execution of a long cherished purpose.” There is