Zimmerman v. Bitner

28 A. 820, 79 Md. 115, 1894 Md. LEXIS 40

• Court: Court of Appeals of Maryland
• Decided: March 14, 1894
• Status: Published

Opinion

Robinson, J.,

delivered the opinion of the Court.

This is a bill filed by the heirs at law of John Bitner to set aside a deed of gift made by him of a valuable farm, containing two hundred and ninety acres of land, which, with the exception of a few hundred dollars, constituted the entire property belonging to the donor. The bill alleges that the most intimate and confidential relations existed between the donor and donee, and that the deed in question was procured by the importunities and undue influence exercised by the latter over the donor.

Before proceeding to consider the law as applicable to cases of this kind, we shall refer briefly to the facts and circumstances surrounding the execution of the deed, and the relation in which the parties stood to each other.

The donor was at the time of the execution of the deed of gift in his seventy-fifth year. He was very illiterate, unable to read or write, but at the same time seems to have been a person of ordinary judgment, — equal, perhaps, to the common purposes of life, and competent to execute a valid deed or contract. He was born in Pennsylvania, and lived with his father on a farm until the death of the latter, which occurred about twenty-four years ago. After his father’s death he lived with his sister, Catharine, on the home place, until ten years ago, when he bought a farm in this State, for which he paid §21,500, the voluntary conveyance of which is the subject matter of this litigation.

This farm he rented to one Zimmerman, who had married his niece, and for some years prior to the deed of gift to Zimmerman he lived with him and his family, spending, however, a part of each year with his sister, Catharine, between whom the most affectionate relations existed. On Thursday, the-of February, 1891, he was taken sick, and although, not seriously sick at that time, Zimmerman and his wife sat up with him all night; and what took place during that night, what was the subject-matter of conversation, and whether anything was said about the disposition of his property, the record does not disclose. On the next day, Doctor Mason was called to see him, and found him walking about the room with his coat off. Before the doctor had time to make any examination as to his condition, Bitner said to him, that he¡ was very sick, and if there was any danger of his dying, he wanted to know it, as there were some matters he wanted to attend to. The doctor did not, however, consider him seriously sick, and so told him. On Sunday following, the Doctor again called to see him, and upon examination found a slight congestion of the right lung; and thereupon rhe Doctor told him that he regarded him as a very sick man, and if he had any matters to look after, he had better attend to them. He then requested the Doctor to ask Mr. Smith, a highly esteemed member of the Hagerstown bar, to come and see him, as he wanted him r‘to write a deed and a will. ’ ’ The next day Mr. Smith and Mr. Middlekauff, a justice of the peace, went to Bitner’s house, and in his room the deed and will were both prepared by Mr. Smith, during the preparation of which Zimmerman and the justice of the peace sat in an adjoining room. Alter the papers were drawn, the justice of the peace was ’.ailed into Bitner’s room to take the acknowledgment of the deed, and Mr. Smith and himself attested the execution of the will. By the deed, Bitner conveyed his farm to Zimmerman, without reserving any interest whatever to himself, the consideration named in the deed being the nominal sum of five dollars, and love and affection. By the will, he bequeaths to Zimmerman his entire personal property, and then, by way of explanation, the testator says: “I thus give to the said J. Monroe Zimmerman, all my property and estate because he is married to my niece, and I have been living with them for many years, and have a high regard and affection for them, and desire they shall enjoy the same to the exclusion of my other relatives.”

On Saturday following the execution of the deed and will, Bitner died leaving surviving him his sister, Catharine, and a number of nephews and nieces, his heirs at law.

For some years prior to the execution of this deed of gift, the donee had' been the general agent of the donor, and as such was entrusted with, not only the general management of the farm and all improvements to be made thereon, but also with all other matters, such as buying fertilizers, the sale of the crops, and the receipt and deposit of the proceeds of sale. He was, in fact, the trusted and confidential adviser of the donor, and one upon whom he relied for advice and counsel in all matters concerning his affairs. So the case with which- we are now dealing is one in which an old and illiterate person makes an absolute deed of gift of all his property, with the exception of a few hundred dollars, to one who stood in the closest and most confidential relation to him. And dealing with such a case, there cannot be, it seems to us, any question as to the principles of law by which it is governed. And, although the law does not declare invalid a gift or conveyance of property to one standing in a confidential or fiduciary relation to the donor, yet Courts always watch with a jealous scrutiny all such dealings and transactions, not merely for the purpose of ascertaining whether the donor understood the nature and effect of the transaction itself, but also for the purpose of ascertaining whether the benefit received by the donee was procured by reason of the influence possessed by him and exercised over the donor. And it is well settled by a long line of authorities that when such a gift or conveyance is questioned, the onus is upon the donee to prove to the satisfaction of the Court that the conveyance was the free, deliberate and voluntary act of the donor, and made by him with full knowledge as to its effect and operation; in other words, that he knew that the, conveyance itself operated to divest him of all title to the property and to vest it in the donee.

A good deal has been said as to what constitutes a confidential relation within the operation of the principle, but Courts have always been careful not to fetter the operation of the principle by undertaking to define its precise limits. The cases of parent and child, guardian and ward, trustee and cestui que trust, principal and agent, are familiar instances in which the principle applies in its strictest sense. But its operation is not confined to the dealings and transactions between parties standing in these relations, bnt extends to all relations in which confidence is reposed, and in which dominion and influence resulting from such confidence, may be exercised by one person oyer another. No part of the jurisdiction of the Court is more useful, it has been said, than that which it exercises in watching and controlling transactions between parties standing in a relation of confidence to each other. And being founded on the principle of correcting abuses of confidence, it ought to be applied to every case in which a confidential relation exists as a fact — where confidence is reposed on the one side, and thej resulting superiority and influence on the other. Billage vs. Southee, 9 Hare, 534 ; Tate vs. Williamson, L. R. 1 Eq., 528, and L. R. 2 Ch. App., 55.

The broad principle, says Vice-Chancellor Wood, on which the Court acts in cases of this description, is that wherever there exists such a confidence, of whatever character that confidence may be, as enables the person in whom confidence or trust is reposed, to exert influence over the person trusting, the Court will not allow any transaction between the parties to stand, unless there has been the fullest and fairest explanation and communication of every particular resting in the breast of the one who seeks to establish a contract with the person so trusting him. Tate vs. Williamson, L. R. 1 Hq., 528.

Tested by these well established principles, tjie relations existing between the donor and donee in this case were beyond question of such a character as to cast the onus upon Zimmerman, the donee, of proving that the deed of gift was the voluntary and deliberate act of the donor; that he knew at the time he signed it he was thereby divesting himself of all interest in the property, and was, in fact, transferring his entire interest to the donee. And this the donee has wholly failed to do. There is no evidence in the record to show that the deed was ever in fact read to the donor. Mr. Middlekauff, the justice of the peace, says he was called into the room to take the acknowledgment of the deed, and that' it was not read over to the donor in his, the witness’ presence. Nor is there a particle of evidence to show that any explanation was made to the donor as to the effect and operation of the deed, or that he understood its import and meaning. Mr. Smith, who prepared the deed, and whom it is but faff to presume knew all the facts and circumstances surrounding its execution, who knew at least whether it was read over to the donor, and whether its legal effect and operation was explained to him, and whether he understood it, and' whether any reasons were assigned by the donor why he made Zimmerman his beneficiary to the exclusion of his own sister and other relatives, is not even examined as a witness. And though the bill charges that the deed was procured through the acts, importunities and undue influence of Zimmerman and his wife, neither of them is examined or offer to testify. But this is not all; after the case had been argued and submitted to the learned Judge below, finding the proof defective in these particulars, he wrote to the counsel, one of whom was Mr. Smith, the draughtsman of the deed, and suggested that additional testimony ought to be taken, and referred to the fact that Zimmerman himself had not testified, and offered to remand the case at the instance of either party. But these suggestions and this offer on the part of the Judge, the donee, through his counsel, declined to accept, and replied by saying they preferred to have the case decided upon the testimony already taken. Here was an invitation to the donee to go upon the witness stand and to make a clean breast of the transaction, — to explain the circumstances surrounding the execution of the deed, and to deny, if he could, the charge that it was procured by the importunities and undue influence of himself and his wife, — and yet this invitation he declined. We cannot escape the conclusion that the refusal on the part of the donee to testify in regard to facts peculiarly within his own knowledge, and to offer evidence which it was in his power to produce, was because he felt and knew the evidence would be unfavorable to him. In the recent case of Bishop Ames’ will (Hiss vs. Weik, 78 Md., 452), against the probate of which a caveat was filed on the ground of fraud and undue influence practised by Mr. and Mrs. Hiss, the beneficiaries under the will, and in the trial of which neither Mr. nor Mrs. Hiss offered to testify, we said: “It is a generally accepted rule of law that the suppression or non-production of pertinent and cogent evidence necessarily raises a strong presumption against the party who withholds such evidence where he has it in his power to produce it.” And this we said in a case where there was a caveat to a will, and the burden of proof was upon the caveators. Here we are dealing with a gift to one standing in a confidential relation to the donor, and upon whom the burden of proof is to show to the satisfaction of the Court that it was the voluntary act of the donor, and was not procured by any influence exercised over him by the donee.

Hot only has the donee failed to offer any evidence to rebut the presumption arising from the confidential relation in which he stood to the donor, but there is another fact, — and a suspicious one, it seems to us, — and that is That the donor should want both a deed and a will prepared at the same time. He was, as we have said, without any education, unacquainted with legal forms, and unused to the transaction of legal business, and it seems highly improbable that he should suggest the necessity of making a deed and a will. There is, of course, a wide distinction between a deed, which is irrevocable, and which transfers the title to the property upon its execution and delivery, and a will, which is revocable and does not take effect till the testator’s death. But we can hardly suppose that such a distinction suggested itself to a person of the donor’s capacity and intelligence. On the contrary, it is more probable that it was the suggestion of some one else. But be that as it may, we rest the affirmance of the decree below on the ground that the donee has failed to offer any evidence to rebut the presumption arising from the relations of the parties against the validity of the deed. To sustain a voluntary deed, upon the proof before us, would be to break down the safeguards which Courts of equity have thrown around the dealings and transactions of parties standing in a confidential relation to each other; and instead of shutting the door to temptation, it would invite persons to secure benefits to themselves, to the detriment of those, the confidence of whom they had betrayed.

The case of Eakle et al. vs. Reynolds, 54 Md., 305,relied on by the appellant, differs widely from the one now before us. In that case the uncle conveyed to a favorite nephew a farm valued at between twelve and fifteen thousand dollars, but he was careful enough to reserve a life estate to himself. Prior to the deed of gift he had made three wills, in each of which he gave legacies to other relatives, making his nephew the residuary devisee. He had lived with his uncle from early childhood, and for some time prior to the execution of the deed he had occasionally transacted business for him, and during his uncle’s sickness had the general management of the farm. Whatever suspicion attached to the execution of the voluntary deed in that case, the donee proved that it was the free and voluntary act of the donor, and that the latter signed with full knowledge of its import and meaning. Mr. Syester, then a member of the Bar, who prepared the wills and the deed in question, testified that the donor fully understood the legal effect and operation of the deed, and assigned the reasons which induced him to make it. Amongst other things, he said he was afraid that the legacies bequeathed

(Decided 14th March 1894.)

in the will would be considered as charges upon the farm, and that to pay them, Ms nephew would be obliged to sell part of it, and this he wanted to avoid. He further Said, that a large part of his property was the.result of the joint labors of Ms brother William, the father of the nephew, and he thought the father’s interest ought to go to Ms son, and he wanted his part to go to him also. All such proof, however, is wanting in this case.

Decree affirmed.