Schmidt v. Johnston

Pattison, J., delivered the opinion of the Court. On the 1th day of December, 1916, Catharine Schmidt and John Schmidt, mother and father of the appellants Albert G. Schmidt and Luther Edward Schmidt, and the appellees, Marie Agnes Johnston and Walter L. Schmidt, con ²⁸⁶ veyed unto their daughter, then Marie Agnes Schmidt, three-lots or parcels of ground in the City of Baltimore, she to have and to hold the same in trust for her mother, the latter to be permitted to use and enjoy said granted property and to receive the rents, income, and profits therefrom for the term of her natural life, with power to dispose of said property by a deed, will, or otherwise, and, in case of sale, to> appropriate the proceeds thereof to her own use, and from and after her death the said lots or parcels of land, or so much thereof as remained undisposed of at that time, was to-become the property of all the children of the grantors living-at the time of the execution of the conveyance, as tenants in common. On the 30th day of January, 1924, Catharine Schmidt executed her last will and testament, by which she bequeathed to her sons, Luther Edward, Water L., and Albert G. Schmidt each the sum of $500. The rest and residue of her estate she disposed of as follows: “I give, devise and bequeath the rest, residue and remainder of my estate * * * of which I may die seized and possessed unto my daughter, Marie Agnes Schmidt, for and during the term of her natural life, with full power and authority * * * to sell * * * convey or otherwise dispose of all, or any portion of said property and estate and appropriate the proceeds of such sale to her own use and from and immediately after the death of my said daughter * * * I give, devise and bequeath one-third of said residue of my estate unto each of my three sons * * * their heirs, personal representatives and assigns equally, share and share alike.” And by her will she appointed her daughter, Marie Agnes Smith, the executrix thereof.- Catharine Schmidt died on February 5th, 1924, after the death of her husband, and after having disposed of one of the three parcels of land described in the deed of December 7th, 1916, leaving two of the said lots or parcels of land undisposed of, and leaving surviving her all of her said four children. ' On June 21st, 1924, the three sons executed unto their sister, Marie Agnes Schmidt, a deed conveying a life in ²⁸⁷ terest in the two lots of land conveyed by the deed of December 7th, 1916, which remained undisposed of at the time of the death of the mother.

This deed recited the deed of December 7th, 1916, and referred to the provisions therein contained that all the property undisposed of by her was to go alike to her four children, and stating therein that two of said lots were undisposed of at the time of the mother’s death. It also recited the fact that the mother had executed her last will and testament disposing of her property as above mentioned. It was then stated in the deed that “it was the evident intention of said testatrix that said Marie Agnes Schmidt should take a life estate in the property mentioned and described in said deed of trust, as well as the other property of said testatrix, but some doubt has arisen whether, under the true construction of said will, the said Marie Agnes Schmidt took an estate for life in the property described in said deed of trust,” and “for the purpose of carrying out the intention of said testatrix and vesting a life estate in the shares of” the sons “in said lots of ground mentioned and described in said deed of trust,” the deed was executed, in which the clause appeared: “'That for and in consideration of the premises and the sum of one dollar, and of natural love and affection which said parties of the first part (the brothers) bear toward said party of the second part (their sister) the said Luther Edward Schmidt (Alfred Gr. Schmidt and Walter L. Schmidt) do grant unto said Marie Agnes Schmidt for and during the term of her natural life, and no longer, all those two lots or parcels of ground mentioned and described ixx the deed of trust * * * but with no power of sale of said lots in. said grantee, said lots of ground after the death of the said Marie Agnes Schmidt to revert to said grantors ixx accordaxxee with the terms of said deed of trxxst.” Thexx follows ixx the deed a release whereby the sister, her personal representatives or assigns, are released from all claim axxd demand for and oxx accoxxxxt of all of said legacies paid by her to the grantors.

Oxx the same day as the executioxx of the last-named deed, Mario Agnes Schmidt executed a deed to them containing ²⁸⁸ recitals like those in the deed to her from her brothers, whereby she granted and conveyed to her brothers all her estate-' in remainder in and to said lots or parcels of ground, subject to her life estate therein which was reserved by her. On the 16th day of July, 1929, the appellants Alfred G. Schmidt and Luther Edward Schmidt, with their respective-wives, filed a bill against Marie Agnes J ohnston and their brother, Walter L. Schmidt, in which the facts above stated were alleged, and in addition thereto it was alleged that it was represented unto them, the appellants, “by the defendant and by her duly constituted agent and attorney * * * that it was the intention of the said Catharine Schmidt, according-to the provisions of her said alleged last will and testament, that said Marie Agnes Schmidt should take a life estate in-the property mentioned and described in said deed of trust, as well as the property which said testatrix absolutely owned at the time of her death,” and that it was necessary for them to execute a deed to their sister “in order to carry out the-intention of said testatrix and vest a life estate in said property under said deed of trust” in her, and, “relying upon the-truth of these representations so made to them,” a deed was-caused to be prepared by the defendant, which was on the-21st day of June, 1924, executed by them, together with-their brother, Walter L. Schmidt, their respective wives not joining in the deed, whereby they conveyed to their sister, Marie Agnes Schmidt, now Johnston, a life interest in said' two parcels of ground, named and described in said deed, with the improvements thereon. That it was not until the 15th day of March, 1929, that the appellants discovered and were advised that said representations so made to them, and the recitals thereof in the deed, were “untrue and false in-fact.” The bill further alleged that the sister, “Marie Agnes-J ohnston, was, at the time of the death of the said CatharineSchmidt on February 5, 1924, about forty-five years of age and unmarried, and that prior to the execution of said deed’ on June 21, 1924, she represented unto” the appellants, “that she never intended to marry, that she could not go out ²⁸⁹ and earn a living, and that all the money and property which she had received from her mother and from her mother’s estate, consisted only of two houses in fee, one on Vine Street, and one on Conway Street * * * in Baltimore City, and the sum of $290.94, in cash, and that after the payment of the three legacies of $500.00 to each” of the appellants and Walter Schmidt, “'according to the provisions of said alleged will of Catharine Schmidt, deceased, it would he impossible for her to exist upon the income from said property, unless they would carry out the intention of the mother as expressed iu said will and execute said deed, and these representations were also a consideration” to the appellants “in the execution of the deed of June 21, 1924, as they believed said representations to be true, and would not have executed said deed except for said representations and tbeir belief in the truthfulness thereof, and yet in Hovember, 1926, they ascertained that said representations so made to them * * * were wholly false and untrue and were made by their sister to willfully and intentionally deceive them in order to procure from them the execution and delivery of said deed, for she had received from her mother before her death, the sum of $9,103.40, in cash, which she claimed as belonging to her; that she also upon the death of her mother claimed the absolue ownership of the property of her mother known as 114 U. Appleton Avenue, Baltimore, worth approximately $4,500, and that in addition thereto sho did actually marry in September, 1926.” That the two aforesaid properties have been in the possession of Marie Agnes Schmidt since the death of her mother in February, 1924, and she has been collecting and converting to her own use all rents, income, and revenue therefrom, “averaging $1,250 a year, less taxes, water rent, and insurance thereon.” It is then alleged in the bill that the deeds of Juno 21st, 1924, “should be declared illegal and void.” The hill then concludes with the prayers, first, that said deeds be rescinded and declared illegal and void; and, second, that Marie Agnes Johnston be compelled to account with the plaintiffs for their share or portion of all rents, in ²⁹⁰ come, and revenue from said property which have come into her hands since the death of their mother on February 5th, 1924. An answer was filed by the appellee Walter L. Schmidt, a brother, in which he averred that, at the time of the execution of the deed to'said Marie Agnes Schmidt, dated Juno 21st, 1924, he fully understood the terms, provisions, and meaning of said deed.

The appellee, Marie Agnes Johnston, in her answer, denied the alleged misrepresentations containd in the bill, which, as alleged therein, induced the appellants to execute the deed to her of June 21st, 1924,, and which, by the prayer of their bill, they asked to be set aside and annulled. The appellant Luther Edward Schmidt, a, witness called by the plaintiffs, was handed a copy of the deed executed by him and his brothers, dated the 21st day of June, 1924, and was asked if he, at the time of the signing of the deed, knew its contents, and his reply was “no.” He was then asked to tell the circumstances under which he signed it. He said he was asked by Mr. Budnitz to come to his office, which he did, and when there “he told me he wanted to talk over something about some papers he had drawn up, and it had been so long ago they had slipped his mind, and when he told me that, 1 said, I won’t sign any papers if some one comes in and gets what I should get, and he said, ‘Agnes is not that kind of a girl, she wants to do the right, thing.’ So I thought everything was all right, and we met there a couple of mornings after, my two brothers and sister and myself * * * that is when he said about these papers that he had overlooked, and said it was my mother’s intention according to the will that ■my sister should have the power over these properties the same as she got under the will, and my brother Alfred said, ‘You would not have to have it willed, the will would not have been necessary,’ so we all agreed, because-my sister, she was unprotected and we did not know how she was going to get along”, and we agreed that she “should have the interest. We did not know what she was getting. * * * We did not know anything about the will or contents, or anything ²⁹¹ how the property was fixed, and of course we thought we were following out my mother’s wishes and we did not know whether my mother left $50.00, or whether she left $50,-000.00.” This statement that he did not know anything about the will, or its contents, was made notwithstanding the fact that he had previously testified that the will was read to them by Alfred in the .kitchen of his mother’s home on the day following her death.

He signed the deed, as he testified, without it being read to, or by him, though he admitted he could read. That, at the time of signing the deed, he received the legacy of $500 bequeathed to him by his mother, and for which he signed the release contained in the deed. Witness further testified that, when he signed the deed, his brothers were not present, and at that time he did not see Mr. Yost, before whom the deed appears to have been acknowledged. This was the extent of Edward’s testimony as to the misrepresentations made by Mr. Budnitz, and nothing was said by him as to any misrepresentations made by his sister, except “she said she did not intend to marry,” but this he said “did not have anything to do with it.” The appellant Alfred G-.

Schmidt testified: “That he, after the death of his mother, met his brothers at the office oí Mr. Budnitz, and there Mr. Budnitz explained why he had requested them to call at his office, “and went on to say that there were several pieces of property that he had overlooked and he said while he drew up the paper some years back, and having so many other things on his mind, he had overlooked it. He said, according to your mother’s will, it was her intention for your sister to have the same interest in these properties (meaning those described in tbe deed of December I, 1916) as she has got under