Myers v. Myers , 185 Md. 210 ( 1945 )

After fifty years of married life Mrs. Myers became a widow on May 11, 1941. She died April 26, 1944. Throughout the three years of her widowhood she was the center of maneuvers and controversy among her five children about her property. The children quite lost sight of the fact that she was (and they were not) the owner of her property. This blindness to her existence, manifested in strange behavior, led to strange legal procedure. Four of her children (the plaintiffs in the instant case) on May 1, 1942, filed a bill to set aside, on the ground of undue influence her deeds to Edward and his wife and children. In effect, they thus asserted ownership of her property in her lifetime. Cf. Sellman v.Sellman, 63 Md. 520, 522-525; Upman v. Thomey, 145 Md. 347,361, 125 A. 860.

The same error permeates and confuses the instant case. The plaintiffs sue in their own names, without stating whether they claim under the deed of trust to the bank or against that deed, or whether Mrs. Myers died testate or intestate, and without making either the bank, as trustee, or her devisees (if any) parties. Such a suit can only be maintained in her right, by her successors in right.

In charging undue influence but not fraud, the plaintiffs charge too much and too little. In the absence of fraud or a confidential relation, the burden of proving undue influence over a person of sound mind is a heavy burden. In this case evidence of fraud is not wholly lacking. But, in view of the confidential relation between the mother and Edward, it is not necessary for the mother (or those suing in her right) to prove actual fraud or actual exercise of undue influence. The burden is upon the defendants to show that (a) the gifts were free and voluntary, untainted by fraud or undue influence and (b) the transactions were fair and proper ones. Upman v. Thomey, 145 Md. 347, 360,361, 125 A. 860; Tracey v. Tracey, 160 Md. 306, 318, 321,153 A. 80; Highberger v. Stiffler, 21 Md. 338, 353, 354, 83 Am.Dec. 593, quoting Story.

The defendants have not sustained either burden. The gifts were not untainted by fraud, and the transactions were not fair or proper. Mrs. Myers was deceived by Edward (1) (like King Lear) by the pretense that he "loved her most" and (2) by actively poisoning her mind against the plaintiffs.

In the 1942 case she testified: "I was going to deed Edward my home. I was going to do for the ones that had done for me. And Edward and his family have been wonderful to me, and their children, they can't do enough for me." After she became reconciled with her daughters in September, 1943, and left Edward and went to live with Mary, Edward did not go to see her. Her last illness lasted six days; the last three days she was in the Frederick hospital. Judge Woodward, who heard both cases, aptly says: "When Mrs. Myers became sick, Edward was told of her illness and, although every facility and inducement were offered by Mr. Loy, he refused to go to see her. He was informed that she was in the hospital but did not go to see her. The evidence covering the period of her illness discloses a callousness hard to believe in a son who had been given most of her realty, and conclusively shows that the surpassing love and affection that she thought he had for her did not exist to the degree that she had been led to believe."

Soon after his father's death Edward went to the banks and instructed them to notify his sisters that their mother would not endorse any more renewal notes for them. He then went to his mother and said: "Mama, the bank sent me home to tell you you are not to sign any more notes." This double-dealing worked. She testified that at one time she thought all her children loved her equally, "but now I don't. * * * After their father's death, and these notes came up, there was a change. * * * The notes changed everything."

There was, however, no breach at that time. Mother and daughters did not cease to visit each other until after she had made the trip to Ohio and back in August and Edward had moved in from across the street. Meanwhile, on one occasion, Mrs. Myers was present "when Ed told his sister she was a liar." Just before Mrs. Myers left for Ohio she spent the week-end with Mary.

At Edward's suggestion, Mrs. Myers asked Mary and Rebecca each to come and live with her. Each gave reasons, apparently substantial, relating to her husband's business, why she could not do so. When Mrs. Myers told Edward what they had said, he said, "If that is the way they feel about it I will come, and the Hell with them all." This benediction was pronounced some time before the family meeting at which Edward's proposal to buy the home was discussed.

At Christmas, 1942, Mrs. Myers acknowledged Christmas remembrances from Fred (Ferdinand), Mary and Rebecca by letters in which she said (referring to the 1942 case): "You all lied to help yourselves out. The Court considered bringing you all back into court for perjury." The poison in this statement, which has no foundation in the evidence or in Judge Woodward's opinion, evidently emanated from Edward.

Mrs. Myers was 74 when her husband died. She was in good health. She had no reason to assume that she would live only three years and would be ill or helpless only six days before her death. She testified: "I have plenty to keep me as long as I live." She could not have so testified if she had understood the legal and economic effect of her deeds to Edward and his family.

By those deeds she stripped herself of all her real estate, reserving only a life estate and no power of revocation. With the exception of whatever remained of $7,300 of life insurance proceeds, the realty was substantially her entire estate. It was assessed at $18,000; what income it produced is not shown. No doubt she was accustomed to thrift. While health and strength permitted her to care for herself, she might have maintained herself alone on the income from $18,000. But after her husband's death she "had lived four weeks alone and couldn't make it." She could not assume continued health and strength. Out of the income from $18,000 she could not have afforded a domestic servant, to say nothing of nursing, medical and hospital expenses. In such circumstances a prudent trust company would not accept a trust without advising a reserved power of revocation or a special power to use corpus if necessary.

It is said that Mrs. Myers had the benefit of independent advice and fully understood the nature and effect of the instruments. She had no advice at all concerning her own legal rights and interests, as an individual. The only advice she received was advice about her status as a partisan in the controversy among her children. In the 1942 case the same counsel represented her and Edward. The difference between a will and a deed, and between a revocable and an irrevocable deed, were never explained to her. On the contrary, in stripping herself of all her property in February, 1942, she acted on misunderstood or mistaken advice in this respect. As this Court says, "the mother deliberately decided to make final disposition of her properties while she was still living, so that in the event any of her other children complained she could meet them in Court and have the complaint settled while she was still living." This is exactly what she could not do; in the untimely 1942 case the complaint could not be, and was not, settled. Sellman v. Sellman, supra; Upman v.Thomey, supra. The fact that "if my children don't treat me right, I am under no obligation to leave them anything," is no reason for stripping myself of my property by an irrevocable deed; quite the contrary.

The absence of a power to revoke a voluntary settlement or trust is viewed by courts of equity as a circumstance of suspicion, and very slight evidence of mistake, misapprehension, or misunderstanding on the part of the settlor will be laid hold of to set aside the deed. Lambdin v. Dantzebecker, 169 Md. 240,245, 181 A. 353; Coutts v. Ackworth, L.R. 8 Eq. 558, 564, 567;Phillips v. Mullings, L.R. 7 Ch. 244, 247. In the case of a drunkard or a spendthrift who desires to protect his wife and children against his own extravagance — or a wealthy man who desires to save taxes by parting with his property — a power of revocation would defeat the object of the settlement. But in the now common case of a widow with a small estate and an uncertain and inadequate income, the absence of such a power makes the transaction unfair and improper. In Whitridge v. Whitridge,76 Md. 54, 72, 24 A. 645, 650, this Court said, of an irrevocable deed of trust executed between parties in a confidential relation, "The deed contains no power of revocation. * * * In a word, she has been deprived of all control over her property, and has been reduced by the deed to the position of a mere annuitant upon her own estate." In the circumstances, this disposition was declared to be "highly improvident." 76 Md. at pages 83, 84, 24 A. 645. See also Thiedev. Startzman, 113 Md. 278, 291, 292, 77 A. 666. In the Whitridge case the annual income probably exceeded $18,000, and there was then no income tax. In the Thiede case the annuity of $900 was probably more — certainly more in purchasing power — than the income from $18,000 in 1942.

"Nothing can tend more to produce confusion and inaccuracy in the discussion of the subject than the treatment of actual undue influence and fiduciary relations as though they constituted one and the same doctrine." Pomeroy, Equity Jurisprudence, 5th Ed., Sec. 955. In the instant case the Court states two opposite doctrines, (1) the doctrine of fiduciary relations, and (2) the law of undue influence, in the absence of fraud or fiduciary relations. The former doctrine is held applicable; but the latter is applied, most rigorously, with mention, by analogy, of common law rights (if they be rights) to ruin a competitor, or to "reap the fruits of an old woman's whim, turned so quickly to regret," or to accept a conveyance "such as a wise man would not have made or as a man of honor would not have accepted." (Huguenin v.Basely, 14 Ves. Jr. 273, 387.) I can find no case in which any such right, in favor of a fiduciary against a trusting mother or other person, has been recognized by a court of equity.

After the confidential relation between Mrs. Myers and Edward came to an end, a similar relation apparently was soon established betwen her and her other children — with the same result. Again she purported to convey all her property irrevocably, this time in trust for the four children.

Neither Edward nor the other children have sustained the burden of showing that the conveyances to them were fair and proper. The evidence shows that all these conveyances were unfair to Mrs. Myers and improper. They were all moves in a contest among the children, made without regard for the interests or needs of Mrs. Myers herself and without understanding by her of her own interests or needs.

This case should be remanded for amendment of the bill and for addition of new parties, if necessary. On the present evidence all the deeds, including the deed of trust, should be set aside and the properties should revert to Mrs. Myers, i.e., to her heirs or devisees, as the case may be.