Zimmerman v. Hull

Si.oaa, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Frederick County, vacating, annulling, and setting aside a deed of real estate situate in Frederick County made by Hester C. Zimmerman to her brother, Clayton M. Zimmerman, at the suit of Mamie E. Hull, daughter of the grantor and niece of the grantee. The appellee, Mamie E. Hull, is the wife of George J. Hull, to whom she was married in the year1 1900, and is the only child and heir at law of Hester O. Zimmerman, who died on December 29th, 1926, at the age of seventy years. The; appellee was born in 1880 and lived with her mother near Mount Pleasant in Frederiok County.

Ephraim Zimmerman, father of the appellant and grandfather of the appellee, died intestate in 1894, leaving three farms located in Frederick Comity, and a dwelling house and lot at Mount Pleasant in ¡hat county, and about fifteen thousand dollars of personal assets. Ho left surviving him his wife, Maria, and two children, a son, Clayton M. Zimmerman, the appellant, born about 1868, and a daughter, Hester O. Zimmerman, born in 1856. By an agreement between the widow and her two children the estate was divided among them equally as to value, each of the children taking a farm and one-third of the personalty, the widow taking a farm and the house and lot at Mount Pleasant and-one-third of the personalty. In 1904 the widow conveyed her farm to her son, the appellant, reserving therein an estate for her life, and conveyed the Mount Pleasant property to her daughter, Hester C. Zimmerman, with the reservation of a life estate.

In 1879 Hester O. Zimmerman was married to one David Holtz, from whom she was divorced in 1886. The appellee was the only child born of that marriage, and after the divorce resided with her mother until the year 1900, when she was married to George J. Hull, with whom she has since resided. The mother, upon procuring the divorce, resumed her maiden name. ²³² In 1905 the appellant and Hester C. Zimmerman, purchased a farm in Frederick 'County, known in this ease as the Cramer farm, for $14,500, the agreement for the purchase of which was made by the appellant, the major portion of the purchase money having" been furnished by Hester Zimmerman and her mother, Maria Zimmerman. By deed dated June 7th, 1916, Hester Zimmerman conveyed to the appellant, her brother, the farm which she had taken in the division of her father’s estate, the Mount Pleasant property which had been conveyed to her by her mother, and her undivided interest in the Cramer farm, reserving to herself a life estate in all the property conveyed, charging the Mount Pleasant property with an annuity of one hundred and fifty dollars payable to the appellee, so long as she should live, after the death of her mother.

It is this deed which the appellee seeks to annul and set aside on the ground that it was the direct result of fraud and undue influence practiced upon Hester O. Zimmerman by her brother, Clayton M. Zimmerman, the appellant, who it is alleged “had such control and influence over the said Hester C. Zimmerman and through devious ways and at various times so poisoned and prejudiced her mind against her own child that the said Hester O. Zimmerman assumed a most unnatural attitude toward her own offspring, and as a result of the control, dominion and influence of the said Clayton M. Zimmerman the said Hester C. Zimmerman made the alleged deed of June 7th, 1916 aforesaid, which your oratrix avers and so charges is null and void and should not be permitted to remain in force and effect, as it violates not only the rights of your oratrix, but the fundamental principles of natural justice.” It is alleged as a further evidence1 of the control and influence of the appellant that on the same day, June 7th, 1916, Hester C. Zimmerman made a last will and testament by which she gave, devised, and bequeathed all her property of every character and description to* her brother, the said Clayton M. Zimmerman, without even mentioning the name of the appellee therein. The testimony of the appellee shows that she lived with her mother until she was twenty years of age, and that she spent ²³³ muela time at the home of her uncle, the appellant, where she cared for the small children as they came along in that house; that frequently she helped to milk the cows and even worked in the fields; and that her uncle was rough and inhumane in his treatment of her. When she was fourteen years old she was injured by being thrown from a buggy, caused by the horse which she was driving running away, with the result that ever since she has had a double curvature of the spine. She says that Miss Albaugh, whom she was driving, had asked her to drive with her to the mill, that she did not want to go, and that she only went upon her uncle’s insistence.

His testimony is that he not only was not there, but that he did not know about the accident until the day following, when word v as brought to his, home. She says, that for about a year (her uncle says for nearly three years) she went every month or two to a doctor in Baltimore for treatment. It does appear that every time she was taken to Baltimore to see this doctor it was her unde who took her, and it is not easy to believe tliat an uncle who had no- feeling for her would have accompanied her and have apparently manifested such concern for her recovery. She testified, as did all -of the witnesses, that there existed between her mother and her uncle ties of the strongest affection, and that the uncle generally attended to her mother’s business affairs; that her relations, with her mother were always cordial and affectionate-, but that her uncle was constantly interfering, and that by reason oí his interference the requests made by her of her mother1 were often refused, all of which was denied by the unde and members of his family.

The testimony shows that the brother, together with other members of his family, visited the appellee’s mother frequently, usually on Sundays. The mother and the unde lived several miles apart, and each of them seemed to be attentive to their respective farms._ Without -contradiction from any one it appears from the testimony that Hester C. Zimmerman was a most industrious woman, of very decided character, strong in her likes and dislikes. Humorous witnesses for both parties testified that, once she made up- her mind to do anything, she -could not bo ²³⁴ swayed or turned aside. Besides being industrious, she was thrifty and frugal, and what others might regard as ordinary expenditures were to her extravagances.

Some of the witnesses said that on the farm she did a man’s work. 'She and her daughter lived together apparently on good terms until the daughter’s marriage. It is contended by the appellant’s witnesses that she did not approve of the marriage, though it is testified that she not only attended the wedding, which was at a ehurch located on a lot adjoining the place of her. own residence, but assisted in the wedding preparations. Several witnesses testified that the mother had said she knew nothing about the wedding until the invitations were issued. The uncle also says he knew nothing of it until that time.

The opinion of the court below, to refute the claim that the mother did not approve of the marriage, lays stress upon the fact that she did attend and assist in the preparations for the wedding. Our reading of the record convinces us of one salient fact, and that is that, even if the mother did approve of her daughter’s choice at the time of the marriage, she soon grew to dislike the husband, 'and that, from that time on until the death of Hester O. Zimmerman, the latter had very little to- do with him, and the relations between the daughter and her mother lacked the intimacy and cordiality that had existed prior to the marriage. George J. Hull testified to a quarrel which he had with his mother-in-law on the occasion of a visit to the house at Mount Pleasant about 1903 or 1904, three or four years after his marriage to the appellee, when he resented some bitter remarks made by the mother concerning his wife, the appellee. In the spring of 1916 the appellee had gone to the Frederick City Hospital for treatment, where she remained three weeks.

While there she had her husband ask her mother to come to the hospital to' visit her. In answer to the question whether she came, she said, “no, sir. Said she could not leave her mother. That was her excuse.

Q. Your mother and yo-ur uncle came to your home after you left the hospital, that’s right? A. Yes, sir. Q. Did your mother give any reason then for not coming to the hospital ? A. Well, I asked ²³⁵ why she didn’t come and she said she couldn’t leave her mother, and I said, ‘Well, you could come up here.’ They called my husband three o’clock that morning and said they were coming up, and we were so glad she was coming to see me.

So I got up and prepared for them, and my uncle and his son came up and said they hadn’t very long to stay. After while my uncle picked up his hat and walked out, and my mother said she had something to say to my husband, and ho says., ‘What is. it ?’ and she says, ‘You said you didn’t do your duty.’ He said, ‘Ho, I didn’t say it that way. I said, Do you think you did your duty not to come to see your daughter ?’ I walked out and she went out the door and of course I wasn’t very well yet. So my husband called my uncle back and he said, ‘Uncle Clat, what did you do this for?’ and he says, ‘You know how she is.

I can’t do anything with her. You’ll have to do the best.’ In a week or ten days the transfer came out in the paper.” Of this incident George J. Hull testified as follows: “Q. Do you remember, George, when your wife came back from the hospital, Miss. Celia did come up to the place where you were living to see her? A. Yes, sir.

Q. Who was with her when she came up? A. His wife, Miss. Celia, and Clayton and Clayborne. Q. Didn’t you have a controversy with Mrs. Hester Zimmerman on that occasion?

A. Hot so much of a one. I don’t know whether you would call that a controversy or not. Q. Didn’t she say she didn’t like your conversation with her over the telephone ? A. She claimed I insulted her.

I said, ‘How did I insult you?’ She said, ‘You told me I didn’t do my duty.’ I said, ‘I didn’t.’ I said, ‘I called you over the phono to go see Mamie at the hospital and as a mother don’t you think it is your duty to. go see her ?’ That’s what I said and that’s the words took place. Q. Didn’t she there in the presence of Mrs. Zimmerman and Clayton and Clayborne say she was going to remember you about it, you would never get any of her money? A. Ho, sir. Q. She didn’t?

A. Ho, sir. Q. What did she say then? A. She said, ‘I don’t want any trouble hereafter.’ Q. Didn’t she further say that you would never get any of her money ? A. ²³⁶ No, sir; threw it ip to me I didn’t help build the bam; I didn’t help raise the barn.

Q. (Court) : What year was that, Mr. Hull? A. That was in 1916, one week after Mrs. Hull came home from the hospital; she called me out of bed. Q. What month of the year ?

A. That was May.” There is no- direct evidence in this case of any importunities or suggestions made by the appellant to his sister for the conveyance to him complained of here. The closest connection of any concrete fact with the conveyance itself which might have influenced or caused Hester C. Zimmerman to make the deed to her brother,which excluded her daughter, at the time of its execution, was the incident testified to by her daughter and son-in-law a week or ten days before the deed was made. It is not unreasonable to believe that she then made up1 her mind to do the thing which she did within ten days thereafter. There is nothing in the record from which we can infer either that her brother was chargeable with the unfortunate controversy, or that he took advantage of the resentment which she manifested then, to- himself profit from it.

There is a closer connection between this incident and the execution of the deed than there is between the lifelong affection of the brother and sister and the transfer of the property. It is in evidence that before the deed was made, she told her brother she was going to convey her property to him, and the only thing in the record which shows an expression from .him on the subject is that he said he would not accept from her an absolute deed, and would not accept any deed unless