Robb v. Horsey

Offutt, J., delivered the opinion of the Court. Joseph Robb, Jr., of Baltimore City died in 1910, leaving a last will under which his residuary estate was left to the Safe Deposit & Trust Company of Baltimore in trust to pay the net income therefrom to his sister Elizabeth Robb for her life, and at her death to his brother Arthur Laning Robb for his life, and at his death to such persons as he might by his last will appoint. Upon the death of Elizabeth in 1915, Arthur Laning Robb became entitled to the possession of the life estate, and apparently received the income therefrom until 1919, when he disappeared and was not heard of until August 28, 1921, when his wife, Florence F. Robb, met him on the boardwalk at Atlantic City. Following that meeting ²³⁰ Robb signed a paper which was sworn to but not attested, which read as follows : “This is to certify that I agree to let my wife Florence F. Robb draw the interest from the estate of my late brother Joseph Robb, Jr., in the hands of the Safe Deposit and Trust Co. of Baltimore, Md., Trustees, as it becomes regularly due.

The above to become effective from this date August 23, 1921, and to draw back interest checks from March 10, 1919. In the event of my death I hereby bequeath the principal of this estate to my wife, Florence F. Robb. “Arthur L. Robb, “1517 Commonwealth Ave., “Boston, Mass.” On August 26th, three days later, he executed, and his attorneys mailed from New York to the trustee, a power of attorney, authorizing Mrs. Robb to collect the income due him from the estate of Joseph Robb. The two papers were filed with the trustee, and it paid to Mrs. Robb $1,107.94 of accrued income, but for some reason not disclosed by the record refused to make further payments, “unless satisfactory proof should be adduced that the said Arthur Laning Robb was. still alive,” but.did make one further payment of $404.79 upon the execution of a surety bond by Mrs. Robb to indemnify the trustee against possible loss resulting to it from the payment. Following the execution of the paper dated August 26th, 1921, Robb disappeared again, and has not been heard of since that time.

On April 18th, 1934, Mrs. Robb filed in the Circuit Court of Baltimore City against the Safe Deposit & Trust Company of Baltimore, trustee, her bill of complaint, in which she prayed that the trustee be required to account for and pay over to her the accumulated income from the Robb estate. On May 17th the trustee answered that bill, alleging that it was defective, in that it did not pray process against the next of kin of Joseph Robb, Jr., who had made demands upon the trustee, claiming that Arthur Laning Robb was dead without having exercised his ²³¹ power of appointment and that the estate was distributable to them. On the same day the trust company, as trustee of the estate of Joseph Robb, Jr., and as executor of the will of Matilda Gill, a sister of Joseph Robb, Jr., filed a bill against Florence F. Robb, wife of Arthur Laning Robb, and all other persons having an interest in the trust estate, in which it prayed the court to assume jurisdiction of the estate, direct the distribution thereof, and in the meantime protect the trustee against the conflicting claims of the parties. On October 18th, 1934, the two cases were consolidated, and after testimony and a hearing on October 27th, 1934, the court, by its decree of that date, assumed jurisdiction of the trust estate, directed the trustee to pay over to Florence F. Robb all net income of the estate accrued prior to August 27th, 1928, canceled the bond theretofore given by Florence F. Robb, and reserved all other questions affecting the distribution of the balance of the income and the corpus of the trust estate.

After testimony and a hearing, it passed a final decree on February 18th, 1935, distributing the balance of the income and the corpus to such persons as would have been the distributees of Joseph Robb, Jr., at his death, and the personal representatives of those who had since died, upon the theory that Arthur Laning Robb had died without having exercised his power to dispose of the estate by a last will and testament. This appeal is from that decree. The contention of the appellant is that the trial court erred in concluding and deciding from the facts before it» that Arthur Laning Robb had died intestate, while the appellees assert the converse of that contention. The single question in the case is whether the trial court was justified in concluding from the facts proved in the case that Arthur Laning Robb had died without disposing of the estate by last will and testament.

There was no direct evidence of the death of Arthur Laning Robb, but all the evidence related to the proof of facts affecting the application of the rule that the ²³² long continued and unexplained absence of a person may permit the presumption that he is dead. The evidence is not conflicting, and the facts which it establishes may be stated indicatively. In 1919 Robb and his wife were living in Washington, inferentially, together. On March 10th of that year he left his residence ostensibly “to go to business,” but later in the morning of that day he telephoned his wife and told her that he had been called to Baltimore to see his sister Tillie, who was sick, and on the following day she received this letter from him: “Dear Florence: “You will be surprised at this letter.

Conditions at the theatre have become unbearable and I am asking a change. I have decided today. I am leaving for Philadelphia and New York where I have good prospects. “When I locate I’ll send for you. Use the $720.

My interest checks from Safe Deposit and Trust Company, South Street, Baltimore, will reach you. Endorse my name and under it yours as you will get the money all O. K. I am enclosing a power of attorney. “There is no woman in this—only I’ll go crazy if I stay in Washington. “With all my love, I am, as always.” At that time he was manager for a theater in Washington, where a woman referred to by Mrs. Robb as Lenora Bouchard, Buchyard, or Bourchyard, was also employed. After she received that letter, Mrs. Robb neither saw nor heard from her husband until by chance she met him on the boardwalk in Atlantic City on August 23, 1921, nor, so far as the record discloses, was he seen or heard of by any other person during that period. When Mrs. Robb saw him in Atlantic City, he was accompanied by the Bouchard woman, and from that circumstance she inferred that when Robb disappeared in 1919, Miss Bouchard disappeared too, and that Robb “ran away” with her.

When she met her husband in Atlantic City, Miss Bouchard ran away, not with, but from Mrs. Robb, and Robb seemed “too frightened to speak.” As a result ²³³ of that meeting Robb and his wife at once went to a notary public’s office, where he signed the paper dated August 23rd, 1921, and promised to send her an additional or supplementary power of attorney, which he subsequently did. After that interview Robb apparently went to New York, for he mailed the second power of attorney to Baltimore from there on August 26th, and also on August 27th a letter from him to John P. Horsey, an attorney at law, who was also his brother-in-law, in which he said in part: “Saw Florence at Atlantic City and promised to send her a properly executed power of attorney to collect various moneys from the Safe Deposit and Trust Company. Sent same to her today and also letter and power of attorney to Mr. Gibson of the trust company. Will you please look out for this matter and avoid any notoriety?

Am making my headquarters in Boston. With an advertising company and make a goodly number of New England towns every month. The work is hard but I like it. I had quite a struggle—but will make good yet.

No longer on Commonwealth Avenue and a brief personal in the Boston Transcript A. L. R. will be appreciated. Please send your personal to the Transcript early in the week. Give my love, if they’ll accept it, to my sisters.” After the receipt of that letter nothing further was heard of Robb, and again he disappeared completely. A “personal” advertisement was inserted in the Boston Transcript as suggested by Robb, but he made no reply, mail sent to him at the address he gave in Boston was returned unopened, but no other serious attempt to locate him appears to have been made, at least by the trustee, until after this suit, when the trustee did make some inquiries as to the whereabouts of Robb and Lenora Bouchard, or Buchyard.

This belated inquiry was also fruitless, and when this case was tried over thirteen years had passed since Robb had been seen or heard of to the knowledge of his wife or those of his relatives who testified in it. In 1921 a niece of Mrs. Robb, from whom Robb had borrowed $1,000, unsuccessfully em ²³⁴ ployed a detective agency to locate him, and shortly after his disappearance Mrs. Robb reported it to the police, and also communicated with a sister of Lenora Bouchard in an effort to locate her, but received no information concerning either her husband or the Bouchard woman. These facts must be considered in connection with the obvious inference that when Robb disappeared in 1919 he acted in furtherance of a fixed and deliberate purpose of concealing himself so effectually that neither his wife, his family, nor his friends or associates could discover his whereabouts. That purpose was briefly interrupted by the chance encounter with his wife at Atlantic City, but he used that meeting to deepen the mystery of his disappearance by misleading her as to his address, and after that it was complete.

Upon these facts the respective contentions of the parties resolve themselves into a choice of conflicting presumptions. On the one hand is the wife, who in support of her claim asserts that, since her husband was alive in 1921, it must be presumed, in the absence of proof of his death, or of reasonable diligence in attempting to find him, that he still lives. On the other are those who will take the estate if Robb died intestate, and they assert not only that, since Robb has been unheard of for more than seven years, that he must be presumed to be dead, but that it must also be presumed that he died without having exercised his power of appointment under the will of Joseph Robb, Jr. The general rule undoubtedly is that one who has been continuously absent from his home for seven years, unheard of by those who would naturally and. in ordinary course have received news of him if he were living, may be presumed to be dead. Wigmore on.

Evidence, sec. 2531; Jones on Evidence, secs. 61, 62; Tilly v. Tilly, 2 Bl. 444; Stevenson v. Howard, 3 H. & J. 554, 556 ;