Weaver v. King, Admr.

Collins, J., delivered the opinion of the Court. Charles Wesley Weaver, now seventy-three years of age, filed in the Circuit Court for Anne Arundel County an amended bill of complaint alleging that for about thirty-five years prior to 1938 he resided in the District of Columbia and for about one year prior to that time he had been receiving an old age pension of thirty dollars ($30) per month, dependent upon his residence in the District of Columbia. He was also receiving additional income for attending to the furnace of the house where he roomed in Washington. He alleged that in 1938 his brother, William Morgan Weaver, became separated from' his wife and desired to move from Washington to ²⁸⁵ his house at Chalk Point in Anne Arundel County and that he did not desire to live there alone; that at that time William made a bargain with the plaintiff that if he would surrender his residence, pension and employment in Washington, leave there and move with him to Anne Arundel County and live with him, he, William M. Weaver, would support the plaintiff for the latter’s lifetime; that in consideration and on condition of this promise, the plaintiff surrendered his residence, pension and employment in the District of Columbia, moved with his brother, William, to Anne Arundel County where the two lived together; that he rendered services to his brother as housekeeper, caretaker of the house and grounds and as personal assistant without compensation until the death of William Weaver on January 2, 1944, when he died a resident of Anne Arundel County, Maryland, leaving a large personal estate and owning the house there.

He further alleged that his brother was survived by his widow, Edna Weaver, and his daughter, Virginia Cave, as his only heirs at law; that letters of administration on his estate have been granted in Anne Arundel County. Since the death of William Weaver, his daughter, Virginia Cave, has died. He further alleged that William Weaver told him that he had provided for the plaintiff’s support for life in a will located in a specific safe deposit box and showed the plaintiff where the keys to the box were kept, but when this box was opened in the plaintiff’s presence, it contained no will or other provision for his support and as far as he knows, William Weaver died intestate. Plaintiff alleges that he is destitute and has no means of support and that the reasonable cost of food, lodging, clothing, medical attention, and sundries is one hundred dollars ($100) per month.

He asked that the real and personal estate be charged with the cost of reasonable maintenance and support for life; that the real and personal estate be charged with the expenses of litigation and reasonable counsel fee; that the administrator be enjoined from distributing the net proceeds of the estate, and that Edna ²⁸⁶ Weavér and the administrator' of Virginia Cave be ehr joined from receiving any of the net proceeds of the real and personal estate of his brother or from alienating or encumbering any of this pending the determination of the suit. He also asked for other and further relief. Answer was filed denying the material allegations of the bill and after testimony was taken in open court, the Chancellor by decree dismissed the amended bill of complaint, and an appeal is taken to this Court from that decree. In order for the appellant to recover, it is necessary that he prove the contract, bargain, agreement, or promise based on a consideration.

This Court said in the case of Neal v. Hamilton, 159 Md. 447 , at page 449, 150 A. 867 , at page 868: “The disfavor with which the court regards an oral agreement for services which are to be compensated after the promisor’s death by devise and bequest, and the necessity that the terms of such a contract be not only certain and definite, but be also affirmatively established by clear and convincing testimony, are based upon weighty practical considerations and grounded in a wise policy which should be consistently followed. Mundorff v. Kilbourn, 4 Md. 459 ; Soho v. Wimbrough, 145 Md. 498, 510 , 125 A. 767 ; Semmes v. Worthington, 38 Md. 298, 318 .” Hardesty v. Richardson, 44 Md. 617 , 22 Am. Rep. 57 ; Dowell v. Dowell, 177 Md. 370 , 9 A. 2d 593 . The proof of an alleged agreement of this sort must be definite, certain, strong, and convincing and such that no material part thereof is left to conjecture and speculation.

Soho v. Wimbrough, supra, 145 Md. at page 510 , 125 A. 767 . By reason of Code, Article 35, Section 3, the plaintiff was denied the right to testify as to any transaction had by him with the deceased and was therefore unable to testify as to the alleged agreement or promise made by his brother. There is no other witness who heard such an agreement or promise made, or heard the deceased say that he had made such an agreement or promise. It is not disputed that the two brothers lived together .in Anne Arundel County from 1938 to the death of Wil ²⁸⁷ liam Weaver in 1944.

It is also shown that at the time that Charles Weaver left Washington, he was receiving thirty dollars ($30) per month from the Public Assistance Division of the Board of Public Welfare of the District of Columbia and that he earned six dollars ($6) per month for attending to the furnace in the boarding house where he lived; also that shortly prior to September 1, 1938, William Weaver and his wife separated and William and Charles moved to Anne Arundel County. By a witness, Mrs. Laura M. Owens, who lived near them in Anne Arundel County, the plaintiff showed that the deceased did his own marketing, cooking, and cleaning up the kitchen and that the plaintiff cleaned up the bedrooms, made up the beds and did the sweeping and dusting and at times cut the grass; also that the deceased