Tracey v. Tracey

Offutt, J., delivered the opinion of the Court. Cornelius G. Tracey and Sarah E. Tracey, his wife, lived for many years on a farm of about 77 or 78 acres, which Mrs. Tracey owned, and which was located on the Yeoho Road near Upperco, in Baltimore County. After the death of her husband, which occurred in 1925, Mrs. Tracey continued to reside on the farm until December 2nd, 1928, when she went to live with her daughter, Hora Mae Alban, at Hampstead in Carroll County, where she remained until her death on March 20th, 1928. While at Mrs. Alban’s home, on January 28th, 1928, she executed a deed conveying her farm to Silas E., Joseph H., and Rezin Emory Tracey, Hora Mae Alban, Rachel Annie Martin, and Della O. Carr, who, with William Thomas Tracey, were her only children and are her heirs at law.

On June 7th, 1929, William Thomas Tracey and Susie Tracey, his wife, filed in the Circuit Court for Baltimore County, in equity, a bill of complaint against ³⁰⁹ the six grantees named in that deed and the husbands and wives, respectively, of such of them as were married, in which they asked (1) that the deed be annulled; (2) that the property described in it be sold and the proceeds distributed under the direction of the court- to such persons as might be entitled thereto; (3) that William Thomas Tracey be allowed out of the proceeds of such sale $1,384.37 or so much "thereof as the court might deem fair and reasonable compensation for work done and materials provided by him for Sarah E. Tracey; (4) that Susie E. Tracey be allowed out of the proceeds of such sale $2,120 for services rendered by her to Sarah E. Tracey; (5) that the court determine the rent payable by William Thomas Tracey under a certain lease from his mother to him; (6) that the defendants be enjoined from incumbering or aliening the property or interfering with the said William Thomas Tracey in the quiet enjoyment thereof pending the suit; and (7) for general relief. The defendants filed a joint answer to the bill, testimony was taken in open court, the case was argued and submitted for decree, and on Way 7th, 1930, the chancellor (1) decreed that the deed from Sarah E. Tracey to Silas E. Tracey and others was null and void, and (2) denied all other relief prayed, General Equity Rule 21, but without prejudice to the rights of the complainants to assert their claims to such relief in some other appropriate proceeding. Erom that decree the defendants have appealed to this court. As outlined by their bill of complaint and in the testimony adduced by them, briefly stated, the plantiffs’ contention is that, w'hen the deed was made, Sarah E. Tracey, while not mentally incompetent, was far advanced in years, enfeebled in body and mind by disease and the infirmities of age, and partially blind; that until the autumn preceding the execution of the deed the friendliest and most affectionate relations had existed between her and William Thomas Tracey, also referred to in the evidence as Thomas or Tom, her son, but that during that autumn, certain of the defendants had wrongfully induced her to believe that- Thomas, hereinafter referred to as Tom, had failed to properly account for the ³¹⁰ proceeds of certain crops which, he had collected for her use, had poisoned her mind against him, and that by constant importunity and pressure, which by reason of her mental and physical weakness she was unable to resist, they had induced .her to leave her horiie for that of her daughter, Mrs. Alban, .and, while there and subject to influences hostile to him, eventually to make the deed by which Tom was excluded from any share in her estate. .

On the other hand, the defendants assert that, while it was true that Mrs. Tracey did believe that Tom had abused her ■confidence, they did not induce that belief; that no confidential relationship existed between her and the grantees named in the deed; that the evidence was wholly insufficient to show that they exerted any undue or improper influence to procure it; but that, on the contrary, it showed that it was her free and voluntary act; and that, since it was not denied that .she was at the time mentally competent to execute it, it was a valid act. These diverse and conflicting views are based not so much upon any dispute as to the existence of the facts upon which, respectively, they are predicated, as upon a variance in the meaning which the_ parties, respectively, ascribe to them, •for there is no substantial dispute as to their existence. An examination of the record leaves little doubt that the ■execution of the deed was induced in part by a prejudice which Mrs. Tracey had conceived against Thomas, based upon her conviction that he had failed to account to her for moneys which he had collected as for her. Nor can there be-any substantial doubt that several at least of the appellants •fostered and fed that prejudice, and it may also be inferred that it was due to the incessant activity of three of them, 'Silas and Joseph Tracey and Albert Carr, that the deed was ■executed.

But the evidence submitted by the record fails to •show whether Mrs. Tracey was justified in her doubt- as to the honesty of her son' Thomas, nor does it directly appear that it was originally due to any suggestion of the appellants or any of them. That situation is unfortunate, because, if it had appeared that the charge was not only unfounded, but ³¹¹ liad been first made by the appellants or some of them, it would go far towards supporting the charge that the deed was the result of fraud or undue influence, while, if it was true in fact that Thomas had betrayed the trust which his mother had reposed in him, and that she had learned of that through her own inquiries, it would remove much of the suspicion that attaches to the deed from her to six of her children. Thomas acted as his mother’s agent and stood in a confidential relation to her, and, if and when it appeared that he had collected moneys for her, the bnrden was upon him to satisfactorily account to her for their disbursement-, and in this case he was probably the only person who conld have done that satisfactorily. IBnt neither he nor any other party to the suit was allowed to testify to any conversation or transaction had with the deceased, and, while in view of the varied relief sought by the bill, those rulings were correct, yet the result was to exclude the testimony of the only witness likely to have any- knowledge on the subject as to one of the most important issues in the case.

But, taking the record as we find it, some facts do emerge with reasonable certainty from the evidence, which may be thus stated: On the 10th or 15th of August, 1928, Mrs. Tracey, accompanied hy her daughter, Mrs. Alban, appeared at the First National Bank of Hampstead, and hy inquiry ascertained from its officials the state of her account with that bank. The only direct explanation of her reason for that visit to the hank was a statement of one of the witnesses that she had told him that she went “to find out about her bank account and she found that there had not been any money deposited there for quite a while, and she thought that, she said, she thought it had been.” Although it is not directly so stated, it may be inferred from the evidence that she wanted to ascertain whether Tom had deposited to her account the proceeds of a sale of certain wheat grown on the farm which he had made for her account. She found that no such deposit had been made, and while it does not appear that she made any comment at the time or that it affected ³¹² her relations with him then, something over three months later she stated that Tom had “robhed her.” On November 24th, 1928, a conference of her children was called at her home, apparently to hear Thomas account for money which he had collected for her, and she requested .Samuel A. Brooks, sheriff of Baltimore County, to attend that conference, telling him “that Mr. Tom Tracey had robbed her, and said she wanted Tom to explain before the rest of her children where this money had gone, this was money of Vernon’s this last crop.” Tom requested Grant Mays, a friend and neighbor, to be present at the same conference, and at the conference Tom appeared with his checks .and his accounts, which Brooks and Mays attempted to explain to Mrs. Tracey, but no witness present attempted to •say what the checks or accounts proved, or what explanation Thomas gave of them. Brooks testified that he could not say whether Mrs. Tracey understood either the checks or the .accounts, nor, indeed, did he say that he himself understood them, while Mays, referring to Mrs. Tracey, testified that •she “didn’t seem to understand it and none of the rest didn’t seem to understand it,” and she did not appear to be satisfied with Tom’s explanation.

Although it appears from the record that Tom did give an explanation, and did exhibit his checks and accounts, and did submit to an examination as to them by one or more of those present, it is silent as to what that explanation was, as well as to what his checks and accounts showed. It does appear that in 1921 he sent a check to a Mr. Zouck for $108 in payment of a note given by Mrs. Tracey, and, while it may be inferred that that was his check, even that fact is not clear, nor does the check itself, although offered in evidence, appear in the record. During the conference, Mrs. Tracey was very much “worked up,” was “highly nervous” and angry, and Joe, one of the sons, in her presence and in his presence, stated that Tom “was trying to rob his mother,” and he was also active in examining Tom as to the “day and dates” of certain bills which 'Tom presented. At the same conference Mrs. Tracey, refer ³¹³ ring to a claim made by Tom for blacksmith work, said: “I want Tom paid.

I provided that in the will.” It has been stated that Thomas Tracey acted as his mother’s agent. That relationship arose in this way: He lived across the road from her, and it was more convenient for him than for the other children to visit her and to attend to her needs. After her husband's death, the farm was operated by her grandson, Vernon Tracey, for her until 1927, when she leased it to Thomas under an agreement which in part provided as follows: “The said Sarah E. Tracey has rented to the said William T. Tracey her farm located in the fifth district of Baltimore County on the road leading from Hereford to Hampstead about one mile and one-fourth of a mile south of the White House for three years from the 16th day of September, 1927, with the privilege of five years. The party of the first part agrees to let the party of the second part have her farm and he is to furnish her a living and pay all taxes, and all fire insurance, but is not to pay any of her doctor bills, and he is not to have anything to do with the house she lives in, and both the party of the first- and second part agrees that if either of them fails to comply with the above agreement they shall forfeit and pay the sum of one thousand dollars.” After the execution of that lease, Thomas took possession of the farm and operated it while his mother still continued to occupy the dwelling on the farm; he supplied her with such necessaries as she required, he and his wife, Susie, cared for her, nursed her, and looked after her home, and he attended to such business as she had, until the dispute as to the bank account in August, 1928.

It also appears that she repeatedly expressed her satisfaction with the manner in which Tom and his wife cared for her, and that she was reluctant to leave her own home for that of any one of her children, and that she finally did so only after repeated requests by some of the appellants. It also appeared that between 192-1 and 1927, before she leased her farm to Thomas, she made a will in which she disposed of her entire estate, under which she left a nominal legacy to Emory, one of her sons, and the balance of her property in substantially ³¹⁴ equal shares to her other children except that to one or two, including Thomas, she left small additional legacies. On November 30th, 1928, shortly before she left the farm, Joseph and. Silas, her sons, and Mr. Carr, her son-in-law, appeared at the office of Mr. William P. Cole, Jr., a member of the Baltimore County Bar, and consulted him in reference to “a controversy with their brother Tom,” and, apparently as a result of that visit, Mr. Cole a few days later saw Mrs. Tracey at her home on the farm.

On that occasion Mr. Cole said “she was seated in a chair, in the center of the room clothed in pretty heavy garments, she had on, I remember, something that resembled one of those lumber jackets that the boys wear, tight up around her neck, like this (indicating). She had her head wrapped in a shawl, she was for all practical purposes, she was very, very thin, in fact nothing on her bones of her hand except skin and blood vessels, that was about all, physically she was about as near a wreck as anything you could possibly see, but she talked with me and talked very fluently and explained different matters that I was interested in. She didn’t know some things about the relationship with the son, I thought she should have known.” Nothing came of that visit, and although Joseph and Silas and Mr. Carr went to Mr. Cole’s office on several occasions after that, for some reason which the record does not disclose he terminated his connection with them in the latter part of January, 1929. On January 21st, 1929, the same three, Silas and Joseph and Mr. Carr, appeared at the office of Messrs.

Brown and Shipley, attorneys in Westminster, and requested Mr. Shipley of that firm to prepare the deed which is the subject of this proceeding, and “told him in substance the manner in which the conveyance was actually made.” Before he prepared it, he went to Hampstead by appointment and there met the same three gentlemen, who took him to Mrs. Tracey, then living with her daughter, Mrs. Alban, and, in the presence of Joseph and Silas and Mr. Carr, he interrogated her as to the contents of the deed he was to prepare. During that interview some reference was made to a will which she had ³¹⁵ made, and, at the suggestion of some one there present, Mrs. Alban produced a will executed by Mrs. Tracey from a desk or little cupboard in the room, and, at the suggestion of some one, hut finally at the request of Mrs. Tracey, Mr. Shipley or Silas dropped the will in a stove in the room and destroyed it. After the deed was prepared, Silas and Joseph and Mr. Carr called at Mr. Shipley’s office for it, and at his suggestion called upon Mr. John M. Shanks, a notary public, and asked him to accompany them to Mrs. Alban’s home “to take an acknowledgment of a deed for an old lady.” When he-arrived there they showed him the deed and explained that Mrs. Tracey was conveying the property' to certain of the children but not to all of them. He was then taken to the second floor to see Mrs. Tracey, and he “read the deed to her and she described the property, said it was obtained in that manner as set forth in the deed, and said it was her intention to execute the deed, that she had made a will, but that she realized there might he some expense or trouble in connection with the settlement of the estate and that she preferred to execute a deed.” The notary’s fee and the fee charged by Mr. Shipley were paid by Silas or Joe.

It also appeared that, by an order witnessed by Mr. Samuel A. Brooks, Airs. Tracey, on September 20th, 1921, changed an account standing in her name in the First Rational Bank of Hampstead so as to read: “In trust for myself and William Thomas Tracey, joint owners, subject to the order of either, the balance at the. death of either to belong to the survivor.” At the time of her death, which was caused by bronchitis complicated by the infirmities of age, Airs. Tracey was about eighty years old. She was ansemic, feeble, and for some time immediately preceding her death she had a cough, she could not eat, she complained that she was nearly blind, she was unable to attend to routine household duties, her meals were prepared for her, her apartment kept in order by others, and from time to time she was confined to her bed by illness.

Until she left her own home these services were usually performed by Thomas Tracey and his wife, but during the latter part ³¹⁶ of her stay there Susie Tracey was stricken, with some permanent and serious illness which left her helpless, and after that Tom was aided in caring for her by his daughter, Mrs. Bossom. During that period her other children, who had theretofore visited her at intervals, varying as to some from a few days to months and as to others from a few days to several weeks, became more attentive, so that towards the end of her stay at her own home at least one of them was constantly with her. During that period Joseph and Silas, also called “Ed,” were active in their efforts to prejudice their mother against her son Thomas, and Mrs: Alban was importuning her to leave the farm and live with her at Hampstead. In describing the effect of those activities upon her grandmother, Mrs. Stella Bossom testified in part as follows: “Well, she was always very pleased when I went in there, only except sometimes as I say when some of them come over and got to talking to her, she seemed kind of nervous and at different times when I always asked her how she felt and she said, ‘all right, but I am so nervous’; I said ‘Grandmother, why do you let yourself get worked up like that?’ and she said, ‘well, you can’t help it sometimes,’ and one time I remember along in July