Rice v. Himmelrich

Henderson, J., delivered the opinion of the Court. A bill of complaint to set aside deeds of certain real estate dated October 13, 1954, .from a sister, Fannie Rice, to a brother, Nathan Rice, was filed by a nephew and two grandnephews of the sister, now deceased. The chancellor set aside the deeds on the ground that there was a confidential relationship between the parties, and that “the respondent has not satisfied this court that the transaction was fair and equitable in all respects, untainted by undue influence, and the free and voluntary act of the grantor.” The appeal is from that decree. The appellees abandoned here the contention raised in the court below that the decedent, Fannie Rice, was incapable of executing a valid deed on October 13, 1954.

The grantor Fannie Rice died, unmarried, on October 1, 1956, at the age of eighty-six. She was the daughter of Augustus and Rebecca Rice, a well-to-do couple who had a place of business on Aliceanna Street until his death in 1901. Another daughter, Elizabeth, was the mother of Alfred R. Himmelrich, Sr., and the grandmother of Samuel K. Himmelrich and Alfred R. Himmelrich, Jr., the three appellees. By 1938 only Fannie, her brother Nathan, and her brother Emanuel, were surviving of her generation.

Neither Nathan nor Emanuel ever married. Emanuel died on February 15, 1952. For the previous ten years he had shared an apartment with his sister, Fannie, at the Riviera Apartments, where she had resided for some thirty-five years, and took care of all her business affairs. Her relationship with her brother Emanuel was always harmonious.

Her relationship with Nathan was described as “tempestuous”. On December 8, 1950, she conveyed five properties on Aliceanna Street to Nathan without consideration. At that time she was being ²³⁷ advised by her brother, Emanuel, and the deeds were drawn by the family lawyer, Bayard Williams, Sr., now deceased. Nathan sold the properties in 1952 for $20,000, and did not account to her for the proceeds.

Nathan was questioned extensively about this transaction at the trial, although the validity or propriety of these conveyances was not put in issue under the pleadings. The chancellor found his testimony vague and misleading. Nathan was ninety-one years of age at the time of trial, and of a somewhat irascible disposition. He insisted that the properties belonged to him, regardless of the state of the title.

Fannie had acquired title to four of the properties under the will of her mother, who in turn had acquired them under her husband’s will. The fifth property was acquired from a trustee in an equity proceeding. A ground rent on one of the properties was conveyed to her by Nathan in 1946. Nathan testified that the properties had been given him by his father in his lifetime for services rendered without adequate compensation in the conduct of the business.

He paid for the property purchased from the trustee. He always collected the revenues from these properties, and paid expenses. Fannie never complained about this. The appellees contend that Fannie and Nathan fell out when she learned she had deeded him the properties, tie admitted that there was a quarrel, but denied that this was the cause.

In the latter part of 1951, Emanuel became seriously ill, and Mr. Himmelrich, Sr., took over the management of Fannie’s affairs. This continued until August, 1952. Mr. Himmelrich then suggested that she open an agency account at the Safe Deposit and Trust Company (now Mercantile-Safe Deposit & Trust Co.). This was done.

She executed a will in October, 1952, under which a trust was created out of the residue. The Trust Company and Mr. Himmelrich were named as executors and trustees. Income of the trust was to be paid equally to the three Himmelrichs and Nathan, during the lives of Nathan and Alfred, Sr., and the survivor of them. After their death, the corpus was distributable to the great-nephews.

On January 1, 1954, Nathan and Fannie became reconciled. In March, 1954, Fannie suggested to Mr. Grasty of the ²³⁸ Trust Company that she would like him to meet her brother Nathan; that he had an estate larger than her own, and might want to avail himself of the services of the Trust Company. A meeting was arranged, attended by Mr. Grasty, Fannie, Nathan, Alfred, Sr., and Bayard Williams, Jr., who had taken over the role of family lawyer upon his father’s death. According to the testimony, Nathan did most of the talking and his attitude was critical and even truculent.

He claimed that the charges for management were excessive, and that he, with the aid of Bayard Williams, Jr., could handle Fannie’s affairs more economically. A few days later, Fannie formally closed the agency account. Thereafter Mr. Williams collected the rentals and other income of her estate under Nathan’s supervision. It was shown that all collections were deposited in her bank accounts, and statements rendered to her.

Once a month Mr. Williams drew a check for $1,500, payable to Fannie. Fannie executed powers of attorney to Mr. Williams and Nathan, to draw on her bank accounts. Nathan paid all her bills and expenses, including the wages of her cook, companion, maid and chauffeur. In August, 1954, Fannie executed a new will.

It recited that she had theretofore provided for Alfred, Sr., by inter vivos deeds. This was apparently a reference to a deed she executed to him without consideration in 1946, conveying the property on McCulloh Street where he conducted his oil business. The value of this property was said to have been some $23,000. Under the residuary clause of the will the residue was left in trust for Nathan for life, with remainders to her two great-nephews, Samuel and Alfred, Jr. Nathan Rice and Bayard Williams, Jr., were named as executors, and Mr. Williams as trustee.

A caveat has been filed to this will. In late 1954 and early 1955, Fannie gave $10,000 in cash to Samuel Himmelrich and his wife. Nathan drew these checks. He testified it was Fannie’s idea.

He cautioned her about giving money away while she was alive, but she insisted. She