Zimmerman v. Frushour

Pearce, J., delivered the opinion of the Court. The bill in this case was filed by the appellee as administrator d. b. n. of Mary C. Frushour, deceased, against Clayton M. Zimmerman in the Circuit Court for Frederick County, alleging that said Zimmerman was the confidential agent of the said Mary C. Frushour from the year 1894 up to the date of her death in December, 1904, and that as such agent, he attended to all her business affairs during the whole of this period. It further alleges that during the month of March, 1897, said Zimmerman obtained from the said Mary C. Frushour by way of gift, but through an abuse of the confidential relationship alleged to exist, the sum of fifteen hundred dollars; that said alleged gift was not the free and voluntary act of said Mary C. Frushour, and was fraudulently procured, and has ever since been fraudulently withheld. The prayer of the bill is that the defendant be compelled to pay to the plaintiff the said sum of $1,500 with interest from March 29th, 1897, and for such other and further relief as the case should require.

The defendant answered the bill under oath admitting that he had received from Mary C. Frushour as a gift, on March 29th, 1897, the sum of $1,500, and that he had transacted many items of business for her during many years, but averred that the alleged gift was her free and voluntary act and that it was not obtained by any act of fraud on his part, or any abuse by him of any confidential relation existing between them. A large mass of testimony was taken before an examiner, and after hearing, a decree was passed setting aside the alleged gift, and requiring the defendant to bring into Court said sum of $1,500, to be paid to the plaintiff, and this appeal is from that decree. It appears that Mary C. Frushour entered the family of Ephraim J. Zimmerman, the father of the defendant, as a domestic, in the year 1862, when she was about 18 years of age, and continued in the service of that family until her death in ¹¹⁷ 1904. The defendant was born in 1867, and was married in 1888, when Miss Frushour left old Mr. Zimmerman’s house and went to live with the defendant, where she ever afterwards lived, and where she died.

The undisputed evidence, is that she was devotedly attached to him from his birth, and that her affection never faltered, but continued undiminished until her death. Mr. Thomas, who taught school near there, and boarded in the family when the defendant was an infant in arms, testified that “she cared for him and thought as much of him as a mother could think of a child,” and he spoke from a continuous experience of six years while boarding in the house. He continued to live near them always, after ceasing to board there, and testified that she was always treated as a member of the family and enjoyed as many privileges as Mr. Zimmerman’s daughter; and in answer to a question whether he knew anything of the relations existing between her and the defendant during the latter years of her life, said, “They were the same in her last years as they were when Clayton was a baby.” George West, a colored man employed in the defendant’s own family for a number of years, whose testimony was intelligent, and evidently unbiased, said: “She seemed to think as much of him as if he were her son, and just as much of his children, and that he always done things just her own way; he never done anything contrary to her way.” When asked to explain what he meant by the last expression, he replied, “if he were going to do any work about the house or place, and if she wanted it done different from what he intended to do it, he would do it, and I never heard him give her a cross word.” Hester Zimmerman, defendant’s sister, testified that; “she was as good to him as a mother; would not let him be abused in any way;” she said, even after he became a man, Mary would “watch after him for fear he would get hurt,” and in illustration of this, said that when he was about to climb upon the house to put on some yellow wash, she said he should not do it, and she would pay some one out of her own pocket ¹¹⁸ to do it; and on another occasion, the same was said by her when he was about to go down a well to clean it out. There is an allegation in the bill of complaint that this sum of $1,500 was obtained as a loan, and was not intended by Miss Frushour as a gift, but this is not sustained by a particle of evidence.

Samuel Gover did. testify that the defendant told him he had once borrowed some money from Mary, but that this was about the time he began farming; he also testified that on one occasion when he wanted some change to pay his hands, defendant told him he thought Mary could change some money for him as he had just given her her interest money, but when pressed to say if defendant spoke of interest on borrowed money, he said he did not, and he emphasized the fact that defendant had previously told him he attended to. her bank business, and that “he had just given her her interest not long ago;” and it appeared from the testimony of the officers of the bank in which Mary kept her accounts, that the semi-annual interest thereon was always paid through the defendant. The evidence shows that the only business Mary had was the management of her bank account, and that for this purpose the defendant was her duly authorized agent, and in this respect only sustained a confidential relation to her. The evidence also shows that she received regular agreed wages for her services up to a year or two before her death, but that when her health failed and she became unable to work, she declined to receive wages, and only received her board without charge. She was not educated, and perhaps might be classed as illiterate, but she could read, and could manage to write, though it is not clear that she could read writing.

Mr. Thomas, whose opportunities to know were ample, and who is in no manner interested, testified he had observed her reading books and papers, and had heard her relate what she read in the newspapers, and he mentioned the Bible, The Reformed' Church Messenger, The Examiner, and the Frederick Times, as books and papers she was accustomed to read. The history of this transaction must be gathered from the testimony ¹¹⁹ of others than the defendant, as he was clearly incompetent under the provisions of our Code to testify in this proceeding as to any transaction had with, or statement made by her, and this practically eliminates all of his own testimony of any importance. It had its origin in the purchase by the defendant of what is called in the testimony, “The Taylor property.” Calvin Thomas says, “The Reformed Congregation at Mount Pleasant, wished at that time to purchase the Taylor property, and Clayton (the defendant) was solicited, to attend the sale and make the purchase, which he did, after which the congregation found themselves unable to comply and the property was thrown upon his hands. He gave between $ i ,700. and $ 1,800 for it. ” Mr. Thomas was then a member of this church consistory and had full knowledge of all these facts, and Miss Frushour was a member of and a contributor to this church.

Hester Zimmerman’s statement of the transaction may be best given in her own words. She said, “In the spring of 1897 the Taylor property was to be sold. You heard the other part of Mr. Thomas’ statement, so it was throwed back on Clayton’s hands, and Clayton said he did not feel able to purchase it at that time, his health was in bad condition, and the property needed a great deal of repairing and he didn’t feel able to do it. Mary says to Clayton, ‘you buy that property.’ Clayton says,‘No, I don’t feel able.’ She still insisted on him to buy it.

She says, ‘now I want to make or give you as a present $2,000 on the property.’ She meant to buy it and repair it and all.' Clayton says, ‘No, I will not accept of that for it is too much.’ She says, T will make you a present of $1,500, and I want you to accept it,’ and Clayton accepted the $1,500 as a gift from Mary. She brought her bank book down, and says to Clayton, T want you to check $1,500 from the bank to pay on the property which is yours.’ She says to me, ‘Celia, you go along to the bank and see that he gets it,’ and Clayton drew up the check for $1,500. He turned round and says to me, ‘Now you see it is all right,’ and I says ‘Yes.’ He took the bank book to his house and ¹²⁰ showed Mary the transaction. She says, ‘Now I am satisfied, and I suppose I can make my home with you as long as I live.’ Clayton says, ‘Yes, so long as I have a roof over my head will I see to you while I live,’ and he did.” / The property was purchased by defendant for $1,741, of which amount $1,500 was the proceeds of the $1,500 check of Mary, and it appears from the bank account of Mary that she had at that time only $1,855 t° her credit. -It also appears from Hester Zimmerman’s account that when this check was given, Mary said she would take the rent of the Taylor house, $60 a year, and that this rent was accordingly paid her •from March 29th, 1897, until May, 1904, when she refused to receive it any longer, saying she felt she was then a burden upon Clayton, having before that become unable to work, and having ceased to work for wages.

The rent of this house it appears was collected by this witness from the various tenants and by her paid to Mary until 1904, when she refused to receive it, and directed witness to hand it to the defendant, which she did. The only other person present at the time of the principal transaction was the defendant’s wife, Mary B. Zimmerman, who is called Beattie in the testimony, and will be so designated here. She testified that she was married in 1888 and that Maty came from old Mr. Zimmerman’s to live in her husband’s family in 1889; that from the time she first knew Mary, “she was like a mother to him, more of a mother I always thought than his own; that even after we were married she laid out the clothes he was to wear, and seen after him as a mother would until these late years when she was not able, * * she done for our children same as a mother would; she corrected them and done more for them than I did. I always treated her as a mother, and went to her about things, and asked her how to do.” She said that after the consistory of the church refused to take the Taylor property which he had bought for them at their request, that he and Mary had a talk over the matter. “He said he did not feel like holding it.

She asked him if ¹²¹ she could make her home with him as long as she lived, and he said in answer, ‘as long as I have a roof over my head it shall be your home. She then wanted to make him a present of $2,000, and he said his health was so bad he did not feel like taking it, that he might be called off before she was, and she would not have enough left to bury her; and she said then, T will make you another offer of $1,500 which I want you to accept,’ which he did.” She then asked Hester Zimmerman to go with him to the bank, which she did, and when they returned he gave-her back the bank book, and she looked in it and said, “she was glad he had it; it was with them she had made it, and it was with them she wanted it to stay.” Both Hester Zimmerman and Beattie were -subjected to long and searching cross-examination, and while there was some confusion on the part of both as to some minor matters, there was nothing to justify the rejection of their account of the transaction in question. Their testimony upon this point is corroborated by the testimony of George West to whom we have already referred. He said that sometime during the summer of 1904 when there was no one present but Mary and himself, she told him she was getting old and helpless and was going to make her-home with Mr. Zimmerman the balance of her days without working; “that he had promised to care for her, that she had raised him from a child up, and the most she had was made in the Zimmerman family; that she had given him the best part of her money and if she lived long enough she expected for him to have it all; that they were the only ones that had cared for her.” In the fall of 1904, the defendant having recently purchased the Cramer farm, Hester Zimmerman testified that Mary looked across the fields towards that farm and said, “I am so glad Clayton has bought that farm; now I am going to make him a present of the balance of my money.” Beattie Zimmerman also said that after the purchase of that farm Mary said, “she had given him part of her money, and when he settled for the farm she was going to give him the rest of it, and then Mr. Zimmerman was going to provide for her in his will.” ¹²² If these three witnesses have told the truth about this transaction as we have stated their testimony, the transaction was a gift and not a loan.

None of them were impeached nor is there anything in the record to cast suspicion upon their truthfulness. The learned Judges of the Court below in the opinion filed, referred to “the eminent respectability of the lady witnesses for the defendant, the one his sister, and the other his wife,” and the simple truthfulness of the colored man, West, is transparent. Upon their testimony the Court below declared the transaction to be a gift, and in this conclusion we fully concur. That Court however held that because the defendant was the confidential agent of the donor; the gift, under what was stated to be the established doctrine of the English cases, must be struck down, because the donor had no independent advice, though it conceded that this Court of Appeals has never yet gone so far as the English cases.

The Court said that “for the peace of the community and the lessening of perjury, the doctrine announced in .the English cases should prevail, where there is a gift involving a considerable part of the donor’s estate, as in the present case.” The only question remaining therefore in the case is whether a gift from a principal to an agent, satisfactorily appearing to be the uninfluenced, deliberate, and intelligent act of the donor is to be held void merely because the donor had not independent advice. In none of the Courts in the United States is greater deference and respect paid to the decisions of the English Courts than in those of Maryland. The greater part of our people