Vocci v. Ambrosetti

Sobeloff, C. J., delivered the opinion of the Court. The origin of this litigation lies in a family quarrel between expectant heirs of an enfeebled old man. The appeal is from a decree setting aside a conveyance made by him to his daughter, with whom he was living when the deed was executed. The subject matter of the controversy is the property known as 1903 Monumental Road in Baltimore County, improved by a large and a small dwelling.

The property was purchased by the appellee in 1923, and it is the only real estate he ever owned. In 1945 he suffered a cerebral hemorrhage and paralytic stroke which left him weak and bedridden and in need of considerable attention. While it is agreed that he is not mentally incapacitated, the testimony portrays the appellee as a man emotionally dependent, vacillating and susceptible to influence from those around him. The appellee is a widower.

For two or three years following the stroke he lived with a daughter, Mary Vanuto, in the larger of the two houses above mentioned, but in January 1948 as a result of a meeting of his children he was transferred to the home of the appellants, his daughter Sadie Vocci and her husband on Central ⁴⁷⁸ Avenue in Baltimore City. There is evidence that he was then in extremely poor physical condition, his body being covered with scabs, sores and filth and his weight was only 89 pounds. The appellant, the daughter Sadie, claims that her faithful ministrations cured her father of these acute conditions and improved his general health. In the three years he was with her his weight increased to 135 pounds.

About March, 1949, after the appellee had been living a little more than a year with his daughter Sadie, on Central Avenue, she and her family and the appellee moved into the Monumental Road house which apparently had been unoccupied since early 1948. The house was greatly in need of repairs, which the appellants and their son made, partly with funds withdrawn from the appellants’ bank account, partly with their own monies and the labors of Sadie’s husband and son who are carpenters. On June 16, 1948, a few months after the father and his daughter Sadie and her family moved to Monumental Road, the father made a deed of the property to this daughter. It is absolute and unconditional in form.

There was no apparent lack of family harmony till the latter part of 1948, when the appellee’s other children— of whom there are altogether seven— discovered that the property had been transferred. The ill feeling between Sadie and her brothers and sisters grew in intensity, but no action was taken until June 3, 1951, about two and a half years after the discovery of the transfer. On that day the brothers and sisters acted with dramatic forcefulness. Without previous notice to the appellants or to the appellee, they came in a body to the Monumental Avenue house and over Sadie’s objection — she says over the father’s objection too — after breaking down the door they removed him to the home of his son Angelo.

On July 30th, counsel for appellee and his children other than appellant demanded reconveyance of the property. This being declined, suit followed. The appellee did not testify, but his pre-trial deposition was offered in evidence without objection. As ⁴⁷⁹ clarification of the factual issues surrounding the conveyance of the property it is far from satisfactory.

Divergent inferences may be drawn from its very obscurity. Appellants argue that the deposition reveals appellee as not in fact master of the lawsuit and his children other than Sadie as really controlling it. Counsel for the appellee, on the other hand, would have it inferred that the vague answers to some questions and the failure to answer others illustrate his dependence and suggestibility. The contention on behalf of the appellee, in short, is that a deed made by such a man to a daughter who is looking after him is presumed as a matter of law to have resulted from undue influence if not actual fraud and coercion.

How the appellee’s mental and emotional condition at the time of the deposition in September, 1951, compares with his condition when the deed was made more than three years earlier, in June, 1948, is uncertain. However this may be, he said through an interpreter in reply to his attorney’s questions, that he did not know his age, the number of the house in which he was living, the amount of his pension, when the deed was made by him to his daughter, or who was present when he executed it by marking an X-mark. Several times he was asked through the interpreter if he wished the property returned and he made no answer, but later indicated that he wanted the property returned to him so that it might be shared equally by all his children after his death. Nevertheless he testified at least twice that the reason for the transfer was that Sadie promised to keep him all his life.

Whatever may have been his state of mind when the transfer was made, certainly when the deposition was taken his position was that he was seeking a return of the property. Although at one point he denied saying that he did not want to go back to Sadie’s, he nevertheless later in the deposition made it clear enough that he did not then want to go back to her and preferred to remain with Angelo. It is noteworthy that the appellee did not complain in his deposition about the treatment Sadie had ⁴⁸⁰ given him. The only explanation he offered for his unwillingness to return to Sadie, who certainly had not consented to his being taken away, is “because I can’t walk.” The children who removed him from the Monumental Road home did not, however, plan for their father to remain permanently with Angelo.

They agreed to shift him from one son or daughter to another every six months — a weird arrangement for a disabled man. If inability to walk could be the reason for appellee’s refusal to return to the appellants, the reason would seem to operate with multiple force against shifting him periodically. Whether the assigned reason for not wishing to return was geniunely what influenced him, or was only a mask for some unexpressed reason, or reflected merely the confusion of the old man’s mind, we have no way of being certain. So far as appellee’s testimony could enlighten an inquirer as to this, the Chancellor who decided this case was in no better position than we to judge, for he never saw the old man but was limited to the written deposition.

The children who oppose Sadie insisted that they were justified in their action and indeed forced to it by Sadie’s neglect and mistreatment of the father. Their complaints against her and their description of the father’s condition in June 1951, when they took him from her, sounds very much like her own testimony about Mary’s earlier treatment of the sick man and his condition in 1948 when the children united in bringing him from Mary’s to Sadie’s home. As to the testimony other than the deposition the Chancellor was in a superior position to appraise it, for he did see and hear the witnesses. Aside from the palpably partisan and embittered testimony of the children there was testimony from three disinterested witnesses.

One of these, Mr. Hector Ciotti, a lawyer of standing, testified that he spoke twice to the appellee before the execution of the deed in the early summer of 1948. According to Mr. Ciotti, who conversed with him in Italian, the language the appellee ⁴⁸¹ understood best, the full purport of the deed was explained and comprehended. According to this testimony the appellee clearly realized that the deed would exclude the other children from participation in the property which constituted practically his entire estate, and he declared his desire for Sadie to have it “because she will take care of me as long as I live.” Anthony Deleonibus, another witness called by the appellants, had visited the appellee both when he lived with Mary where he said the appellee was poorly cared for and allowed to be in a filthy condition, and when he lived with Sadie, both on Central Avenue and Monumental Road, where he said he observed the cleanliness and kindness of the treatment. He quoted the appellee as telling him that he had given the houses to Sadie because “she has been taking care of me and I am satisfied to stay with her and I am really happy here.” The third disinterested witness was Leonard Spina, the next door neighbor on Monumental Road who furnished strong corroboration of the appellants’ claims.

According to him, Mary had treated the appellee “like a dog” when he became sick, while Sadie kept him clean, fed him well and made him happy. He also related that the appellee told him he gave the property to Sadie because nobody else wanted him and she (Sadie) was giving him the best of care. He described the dilapidated condition of the house when the appellants took over, and the personal labors of the appellants and their son in effecting improvements. If this were all the testimony, then notwithstanding the fact that the only witnesses unaffected by the passions of the controversy and interest in its outcome support the appellant’s version, we should be strongly inclined to subordinate our impressions of the facts and to uphold the able and experienced Chancellor who had the great advantage of observing the witnesses as they appeared in court.

There was, however, in addition to the testimony heretofore outlined, a considerable volume of testimony on the part of the brothers and ⁴⁸² sisters in which they undertook to recite various alleged self serving statements of the appellee made out of the presence of the appellants. These children may of course testify to what they claim to have observed and to any alleged conversations between them and the appellants. However, they undertook to tell of conversations they had with the father at various times the effect of which, if believed, must be damaging to the appellants. What the appellee failed to say in his deposition as to the circumstances surrounding the execution of the deed, his sons and daughters (other than Sadie) undertook to supply by repeating alleged statements made to them by the appellee.

Some of these were as late as the night before the trial and three years after the events to which they relate. Whereas, from the appellee’s scarcely articulate deposition nothing appears which suggests active solicitation on the part of the appellants to procure the deed, her brothers and sisters supply a long chain of testimony — distinct, clear and highly specific— as to conversations with their father about Sadie’s alleged nagging to obtain the transfer of the property. The Chancellor’s first reaction was against the admission of such testimony, in recognition of the established rule of evidence. Later, however, he reversed his ruling and allowed the members of the family to offer in support of the appellee’s case an avalanche of conversations they claimed to have had with him.

All of these occurred out of the appellants’ presence and many months — even years — after the appellee had passed into the custody of those hostile to the appellants. The ruling was made in the stress of a hotly contested trial when there was little time for reflection. The Chancellor was aware of course of the laws of evidence generally applicable to such testimony, but voiced his impression that there might be a more liberal rule in cases of this character. Appellee does not here defend the admission of this testimony of the sons and daughters who undertook to quote their father’s self-serving statements, but he argues ⁴⁸³ that the appellant cured the error by cross-examining the witnesses and by offering in evidence disserving statements of the appellee.

With this we cannot agree. The rule is stated by Wigmore, section 1362: “The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be