86 Md. 494 | Md. | 1898
delivered the opinion of the Court.
This proceeding originated in Circuit Court No. Two, of Baltimore City, by a bill in equity filed on July eighteenth, eighteen hundred and ninety-five. The bill w'as filed by Miss Fannie Brengel Frush against sundry defendants. It recites in substance that the plaintiff was the niece of one Luther M. Frush, who had died five days prior to the filing of the bill. That on July the eighth, or five days anterior to his death, which occurred on the thirteenth, he purported to execute a deed of trust conveying to one George A. Horner all the property, real, personal and mixed, of which the grantor was then possessed. That by the deed of trust,
The record is voluminous—it contains eight hundred and seventy closely printed solid pages, which have been patiently perused. It recounts with minute and graphic detail a family wrangle over a dead man’s estate; and it abounds with indications of the bitterness which such a contest usually engenders. To attempt to reconcile the flatly conflicting statements of many of the witnesses would be a hopeless task indeed ; and it would swell this opinion far beyond
William Frush, the father of Luther M. Frush, lived for many years on Madison avenue in Baltimore City. At the time of his death his family consisted of himself, his son Luther, who was a bachelor, his daughter Mrs. Leas, who was a widow, his daughter-in-law Mrs. Sarah E. Frush, the widow of a deceased son, and his granddaughter, Miss Fannie Brengel Frush, who was the daughter of Mrs. Sarah E. Frush. Mrs. Sarah E. Frush was the daughter of Dr. Leas. After the death of her mother her father married again, his second wife being the Mrs. Leas just mentioned—the daughter of William Frush. Thus Mrs. Sarah Frush became by marrying Mrs. Leas’ brother, Mrs. Leas’ sister-in-law, whilst prior to that Mrs. Leas by marrying Mrs. Sarah Frush’s father had become Mrs. Frush’s stepmother. When Dr. Leas married the second time, Mrs. Sarah Frush was a child ten years of age living at her father’s home. After she became a widow, Mrs. Frush with her infant daughter—now Miss Fannie Frush—left her father’s house and went to reside with her deceased husband’s father, William Frush. There Mrs. Frush and Miss Fannie made their home until the death of William Frush in eighteen hundred and ninety-two. When Dr. Leas died, his widow—the daughter of William Frush—returned to her father’s home. Upon the death of the wife of William Frush, about eighteen hundred and seventy-nine, Mrs. Sarah Frush became the house-beeper. Upon the death of William Frush, Luther Frush assumed his father’s place as the head of the household, and Mrs. Sarah Frush continued in the position of housekeeper for her brother-in-law. It was in this domestic circle that Miss Fannie grew from childhood to womanhood and the great preponderance of the evidence leads us to believe that
It is a fact about which there is no dispute that for years prior to June, eighteen hundred and ninety-five, Mrs. Green —the mother of four of the beneficiaries who get about half of the entire estate—was not on speaking terms, or at least, not on terms of intimacy, with her brother Luther ; and that the latter took but little interest in her children. He had a dislike for Horner, and repeatedly spoke of him in disparaging terms. He had expressed an intention to have the Safe Deposit and Trust Company settle up his affairs.
Without pausing at this juncture to trace the progress of his disease or to dwell on its obvious effect on his mental faculties ; and passing over, for the time being, the events that transpired between the time that his malady became more virulent and the date of his death; we come to the day the deed of trust was executed. That deed was a deathbed transaction and the dread of impending dissolution was evidently then upon him. It bears date July the eighth, eighteen hundred and ninety-five, and was signed and acknowledged late in the afternoon or early in the evening.
Undue influence is not, of course, every mere entreaty or pressing solicitation that may be invoked- to sway the conduct or to persuade the judgment of another ; but it is that degree of importunity which deprives one of his free agency— such as he is too weak or too feeble to resist, and such as will render the instrument executed under its supremacy not his free and unconstrained act. It often closely resembles and is near akin to actual fraud, and like the latter when most cunningly employed is exceedingly difficult to expose. From the very nature and secrecy of the wrong itself, it is rare that direct evidence can be procured to unmask it, and hence the results accomplished in a given case, the divergence of those results from the course which would ordinarily and naturally be looked for, the situation of the parties taking benefits under an instrument, alleged to be the product of its .dominion towards the person who has executed that instrument, their antecedent relations to and intercourse
Luther M. Frush was a man about sixty-eight years of age when the deed that is now being assailed was executed. For several months prior to his death he had been suffering greatly from a disease of the prostate gland that finally developed into cancer. In January preceding his death he was taken severely ill at his home on Madison avenue. He was weakened and his nervous system became involved. He required constant attention day and night. The attention was exacting and included services of the most menial character. During the day his sister, Mrs. Leas, and his niece, Miss Fannie, took care of him, and during the night his sister-in-law remained in his room and looked after him. We need not go into the details of this incessant watchfulness and care. His sister, Mrs. Green—whose four children are the chief beneficiaries—gave him no attention whatever, nor did any of her children. After he had rallied somewhat from this acute attack, he again went about. He took a trip to Atlantic City, but went in company with his sister-in-law, who carried with her a quantity of bed-linen which she used upon his bed to protect that of the hotel, and which she washed in her own room and with her own hands daily and then dried before a gas jet. The constant escape of urine required her to wash his underand his.outer
Upon his return from Atlantic City he had not improved and his physician, Dr. Bevan, advised him to ride out frequently in the country. When it became difficult for him to do this in his conveyance he used the street cars. Despite all this and despite the medical attention his disease grew steadily worse. It was a progressive disease. As it advanced it lowered his vitality, increased his irritability and correspondingly affected his mental forces. During all this time there is not the slightest indication of a change in his feelings towards his niece; nor is there any suggestion that his antipathy towards the Greens and the Horners had in the least been modified. About this period there appears the first trace or foot-print of the scheme that ultimately culminated in the deed of trust. When one of his nephews— one of the sons of his deceased brother William—called at his house to see him, Mrs. Leas informed the visitor, her own nephew, that his Uncle Luther was too indisposed to receive him—that he needed absolute quiet and rest. Assuming this to be true he remained in the dining-room a few moments until Mrs. Horner—one of Mrs. Green’s daughters and the wife of the trustee—entered; and upon her being told the same thing as to her uncle’s condition that Mrs. Leas had just stated to the nephew, Mrs. Horner exclaimed that she would not think of disturbing her uncle. Thereupon young Frush departed from the dining-room, his aunt, Mrs. Leas, saying to him that as he knew the way to the front door she would not accompany him. On his way through the hall he met Miss Fannie, to whom he narrated what Mrs. Leas had said, but he was informed by Miss Fannie that he could see his uncle, who was sitting up; and she immediately took him to the uncle’s room. He had scarcely taken his seat when Mrs. Leas and Mrs. Horner, who both supposed he had left the house, entered the room together and upon seeing him were considerably embar
We have stated the substance of the contents of the deed, and we have said that every provision of it, except the gift to Mrs. Leas and the small gift to Mrs. Frush, was directly the opposite of what'he had long before declared he intended to make. Not only is this so, as we have already suggested, but the very persons he disliked the most were made the chief beneficiaries and the one person for whom he entertained the warmest regard was practically ignored. The results accomplished by the deed are widely divergent from the course which would ordinarily and naturally have been looked for. The instincts of a just man and the promptings
Generally speaking a man may dispose as he pleases of that which is his own and he is under no obligation to assign a reason for his conduct. When it is assumed or conceded that he has made a disposition that he intended to make it must also be assumed or conceded that there were volition and intelligence in the act that was done. And
. Within a day or two after the deed had been executed it was suggested by Mr. Robert Green, the father-in-law of Mr. Horner, the trustee, that it would be advisable to have witnessess go out and ascertain the intentions of Mr. Frush as expressed in the deed, so as to be able to testify thereto in the event that the deed were assailed. Mr. Horner then conferred with his counsel, who advised him to the same effect. Accordingly Mr. Horner took -three witnessess to the Pimlico cottage on Thursday, July the eleventh, but the physician peremptorily prohibited them from entering the sick room. On Friday morning, the twelfth, they returned, and after Mr. Horner had first gone in the room and remained for ten minutes with the sick man, the witnesses were ushered in. Mrs. Leas was there before the witnesses entered, and whilst she was there this is what took place: “ Mr. Horner said to my brother, ‘Uncle Luther, I think Aunt Lizzie (that is Mrs. Leas), and I have got ourselves in troublehe said , ‘ They accuse us of making your deed ; would you mind if I bring some oí my friends in, of telling them that we did not, telling them you made it yourself; he said, none, not in the leastso Mr. Horner then went out and brought these gentlemen in.” Mr. Frush was
The chief purpose of the gathering seems to have been to procure from Luther Frush his reasons for ignoring Miss Fannie. If she had had no claims to be an object of her uncle’s bounty; or if there had been no reason to make it probable that her uncle would provide for her in the final disposition of his property; there was obviously no necessity for extorting from him, whilst the shadows of death were gathering around him, motives for the doing of an act that was a natural act for him to do. And just here the anxiety of Mr. Horner to bolster up the deed overreached his discretion, and the dying man gave motives for his conduct that are fabrications and not facts. Where an act unjust in itself, unexpected when the whole past conduct of the person doing it is considered, and utterly at variance with his asserted intentions consistently expressed, needs, in order to be upheld as free and voluntary, an explanation of the motives that induced its performance; if the motives assigned are in reality untrue and there is no pretence that there are any others, the conclusion is irresistible that the
He gave three reasons for disinheriting Miss Fannie; and these were, first, that she was not affectionate and congenial and never had been; second, that she had gone to Philadelphia or New York on one occasion against his wishes; and third, that she had said she did not want his money. And then he added in response to one of Mr. Horner’s questions, that he had often ordered her to leave the house. There is another reason, given through Mrs. Leas, and it is this, that Miss Fannie had asked her uncle for a piano. The first of these reasons is utterly without foundation in fact. Apart from the interested witnesses there is not a human being who has testified that Mr. Frush ever dreamed that his niece was not affectionate towards him. She was as dutiful as a child. She washed his false teeth every morning; washed his face, helped to dress him and frequently during the day cleansed his cancerous nose with a quill. And this she did continuously until and including the day the deed was made. She denies that she went to New
As soon as the deed of trust had been executed and placed on recprd a marked change in the household followed. Mrs. Sarah Frush was supplanted by professional nurses who were employed to do what neither Mrs. Green nor Mrs. Horner would or did do, but what Mrs. Frush and Miss Fannie had for months most faithfully performed. Mrs. Frush no longer directed the domestic affairs, but the successful masters of the dying man assumed and asserted control. Up to the time the deed was executed neither Mr. nor Mrs. Horner nor Mrs. Green remained over night at Frush’s house. After the deed had been signed some one of them or some one of Mrs. Green’s children was always present. “They never left him alone after that," says the colored servant whom the appellees produced as a witness. They evidently believed that a deed of trust could not be successfully assailed ; and their whole demeanor indicated that they felt secure until the suggestion that the three witnesses ought to be assembled was made. When these witnesses did appear the day before his’ death, Mrs. Green tells us in her testimony that Mrs. Frush put this question to them : “ Gentlemen, are you going to s'wear the rights away of a poor orphan girl,” and that she, Mrs. Green, addressing Mrs. Frush, said: “ Haman, stand back, stand back. You have made a gallows to hang me and my children on, and you have got your head nowin the halter.” Obviously that halter was the deed of trust, and Mrs. Green gloated
We come now to the question of mental capacity. To render a deed or a will invalid because of the want of sufficient capacity to execute it, it is not necessary that the grantor or the testator should be insane. Where he fully comprehends the nature of the business in which he is engaged, and has sufficient capacity to make a disposition of his estate with judgment and understanding in reference to the amount and situation of his property and the relative claims of the different persons who ought to be the object
There is one witness and but one outside of the Green and Horner families and their servants and Mrs. Leas, who undertakes to give any evidence touching Frush’s alleged declarations in regard to Miss Fannie, and that witness is Miss Dotterveich, one of the defendants. We feel constrained to place reliance upon the great preponderance of evidence that is in conflict with that of Miss Dotterveich. It seems most singular that Frush should have made the declarations that this young lady rehearses—evidencing great hostility to Miss Fannie—at the very time his conduct towards her and his treatment of his niece were the very opposite of that which would have been natural had he entertained the sentiments imputed to him.
We have wholly rejected the testimony of George Horner, the trustee, given in anwer to the general interrogatory. Mr. Horner was placed upon the witness stand by the plaintiffs under a subpoena duces tecum, requiring him to produce a certain paper showing the amount and details of the property which had gone into his possession as trustee. He was asked whether he had the paper, and upon his replying in the affirmative, the paper was produced and filed. The plaintiffs then dismissed him without asking a single question pertaining to the merits of the case. The defendants’ solicitors then stated that they had no cross-interrogatories to propound; but they requested the examiner to put the general interrogatory prescribed by Equity Rule No. 39. This was done and Mr. Horner proceeded, against the protest of the plaintiffs’ solicitors, to give a circumstantial and detailed account of his acquaintance with Frush and his interviews with him and to testify, from written memorandum, fully and at large to the whole merits of the controversy.
For the reasons we have given, we think the learned Judge of the Court below was in error in dismissing the bill of complaint. And because, in our opinion, the deed of trust of July the eighth, was procured by the exercise of undue influence, and was executed at a time that Luther M. Frush was not mentally capable of making a valid deed or contract, the decree appealed from will be reversed and the cause will be remanded that a new decree may be signed annulling and setting aside the deed assailed in these procedings.
Decree reversed and cause remanded, the costs above and below to be paid out of the estate of Luther M. Frush.