Johnson v. Heald

Construction of the Act of 1868, ch. 116, relating - to the Competency of Witnesses and the Examination of Parties. In any suit, action or'other proceeding,.where an executor is a party, he may, under the Act of 1868, chapter 116, on his own offer, or on the call of his co plaintiff or co-defendant, give in evidence, adversely to his opponent, any conversation he may have had with the latter in reference to the cause of action or controversy when it antedates the death of the testator; and if he does so, then the other party likewise, on his own offer, or on the call of his co-plaintiff or co-defendant, may testify in respect to such conversations or admissions, by giving such evidence as will fairly tend to contradict, explain or modify them; but beyond this he cannot go. Upon a bill filed by an executor to set aside certain gifts alleged to have been made by his testator, to a son and daughter, the executor was examined under the Act of 1861, chapter 109, on his own offer, and in the course of his examination, testified as to interviews and conversations between himself and the daughter, one of the donees. No interrogatory was put to this donee relative to those conversations, and no contradiction or explanation of them offered; she, however, became a witness on her own offer, and testified at large to the whole cause — to her father’s mental condition and capacity to make the gift of railroad bonds — to the previous gift of the house and furniture — to the writing on the envelope in which the bonds were placed, and then gave a detailed statement of all that occurred in reference to the secret gift of the "bonds between herself and her deceased father, when no other person was present. She was not cross-examined, and her whole testimony was excepted to on the grounds of her inoompetency as a witness. Held: That she was not competent to testify on any of these matters, and the exception to her testimony was well taken. [The argument upon the facts of the case, and the principles of law applicable thereto, as governing the transfer of property, where the donor and donee occupy confidential relations to each other, is omitted, inasmuch as the questions arising thereunder were not passed upon by the Court, the decision being- confined -to the determination of the incompetency of the defendant, Mrs. Johnson, under the Act of 1868, ch. 116, to testify on her own offer. — Reporter.]

Appeal from the Circuit Court of Baltimore City. The bill of complaint in this case, filed on the 24th of September, 1866, by the appellee against the appellants, and Jas. M. Frazier and the Northern Central Railway Company, alleged that James Frazier died on the 18th of July, 1866, having made a will on the 23d of December, 1863, in manner and form to pass real estate, which was duly proven, and on which letters testamentary were granted to the complainant; that said Frazier died in the eighty-fifth year of his age, and although originally a man of much vigor of mind and body, he had become, in the last year or two of his life, exceedingly infirm, and this condition of feebleness gradually so increased that, towards the last, he was quite incapable of intelligent transaction of business — his senses were greatly impaired, and his memory shared the decay of his physical faculties. That more than a year before 'his death, he had sunk into a state of hopeless imbecility, and lost all power of managing or taking care of his property, dr of resisting any influence which those by whom he was immediately surrounded might choose to exercise. That at his death, and for two and a half years previously, his household consisted of his son, James M. Frazier and his wife, Elizabeth, and of his daughter Charlotte M. Johnson and her husband, Charles R. Johnson, a master mariner, but who, on his return from sea in the latter part of the year 1864, also lived with his wife, in the same house; and that upon the said son, James M., and the daughter, Charlotte and her husband, the care of his person and the possession of a very large amount of property devolved. That although the said son and daughter were already greatly benefitted by the bounty of their father, who, while in health, had manifested no intention to give tb^m a preference over persons having an equal claim, they availed themselves of their position — Charlotte being impelled thereto by her husband — to appropriate to themselves large portions of their father’s property, when he was incapable of making a valid disposition of the same; and in order more effectually to get possession of his estate, the son, less than a year before his father’s death, and when he was incapable of making a valid deed or contract, induced him to execute a power of attorney to him, under which he got into his'possession large sums of money and valuable effects — part whereof he took to his own use, and another part, in execution of a mutual scheme and confederacy between himself and his sister Charlotte and her husband, ho transferred to them, or one of them, and that Charlotte arid her husband, with the connivance of the son, appropriated other property of their father to a still greater extent. The bill then particularly charged that the testator owned in his life-time registered bonds of the Northern Central Railway Company to the amount of $10,000, standing in his name, and unregistered bonds of 1885, of the same company, to the amount of $20,500; and treasury notes of the United States, commonly called seven-thirties, to the amount of $25,500; and that said registered bonds were by the son, James M. Frazier, by virtue of a pretended power of attorney from his father, ordered to be made payable to bearer, and were thus delivered to his sister and her husband, on the 6th of July, 1866, only twelve days before the death of his father, who was then lying bed-ridden, helpless and utterly incompetent to comprehend any matters of important business — and that the other, Northern Central Railway coupon bonds, sometime during the last illness of said testator, -when he was too infirm to exercise care over his property, were wrongfully taken possession of by the said Charles and Charlotte and converted to their own use; and that the said seven-thirty notes of the United States were, about the same time, wrongfully taken possession of by the said James M. Frazier, and converted to his own use. The bill further charged that the said James M. Frazier, in May, 1865, prevailed on his father, then incapable of making a valid deed or contract, to execute to him without consideration, conveyances of certain parcels of fee simple and leasehold property, situated in the city of Baltimore, severally improved by buildings; and that on or about the 26th of August, 1861, the said testator executed to his daughter, Charlotte, a deed of the dwelling house where he resided at the date of the deed, and continued to reside until his death, and likewise a bill of sale of the furniture in said house, and that said conveyances were made to the said Charlotte by way of portion, to be taken into account pro tanto, in ascertaining and settling her share of his estate when the same should be distributed at his death. The bill also charged that at the death of the testatoi’, he was represented in blood by his two surviving children, James and Charlotte, the issue of his deceased son, Edward, and the several issue of his four deceased daughters by their respective surviving husbands, who were named as devisees in his will. The bill further charged that the property so taken possession of by the said James and Charlotte, in the last years of his life and during the period of his mental incapacity, was largely in excess of the portions or shares of his estate to which they were entitled under his will. The bill prayed discovery and an account, and the surrender of all the Railway bonds and United States Treasury notes as rightly forming part of the assets of the estate of the testator, that the house and furniture conveyed to the appellant, Charlotte, should be adjudged to belong to the estate of her father, and in the distribution thereof be treated pro tanto as a part of the share or portion devised to her, that the conveyances made to James M. Erazier should be annulled, and the property thereby conveyed and the proceeds thereof be treated as a part of the estate of James Erazier; the bill also prayed for writs of injunction, and the appointment of a receiver. Injunctions were granted as prayed, including an injunction against the Northern Central Railway Company to restrain it from recognizing the pretended transfer of the registered bonds. The appellants answered under oath, denying that the testator had fallen into a state of hopeless mental imbecility for more than a year before his death, or that he was bed-ridden some time previous to that event; the answer stated that he was a man of a very strong will to which he required every member of his family to bend, and this quality adhered to him to the end of his life; that he was therefore not to be influenced by those around him to do anything which he did not desire to do, or did not approve of; but he formed his own purposes, especially in regard to all matters of business or property, and carried them out with resolute determination. That his frame was powerful and vigorous, and his health remained good almost to the last; and so far from being bedridden, he came down stairs to dinner the day before his death; that he had a clear and vigorous mind, and a remarkable capacity for business, which was shown by his successful career, and up to the 8th of July, he was of sound mind and competent to execute contracts and to manage his affairs, although by reason of bodily infirmity, he required an agent to attend to his collections and other matters of business; that the appellant, Charlotte, was the youngest child of her father, and for many years the only surviving daughter and the only child who always lived with him; and that he was always deeply attached to her, that she first lived in his family and he afterwards lived in her’s. That in 1852, she was married to the appellant, Charles R. Johnson, who since the marriage had seldom been at home, and then for short intervals, -being constantly employed as captain in the merchants’ service, until about July, 1865, since when he had found employment on shore. The answer denied that the gift of the house and furniture was intended as an advancement to the appellant, Charlotte, and alleged that the house was originally built for her by her father, as he often declared at the time it was built, but that he did not intend to give it to her as long as her mother lived. That her mother died on the 8th of August, 1861, and some weeks afterwards her father presented her with deeds of the house and furniture, without any suggestion or request on her part; that from that time she and her husband had used the house and furniture as her own, and that her right and title thereto was fully known, not only to the complainant, but to every member and relative of the family. The answer stated the circumstances of the gift of Railway bonds, as follows: That their amount was $30,500, coupon bonds, of which $10,000 were registered in the name of the testator, 11th of March, 1857; that when he gave his daughter these bonds, he came to her chamber and handed them to her, telling her that they were coupon bonds of the company and that they were for herself; that she thanked her father for his generous gift; took them and put them into her trunk in her own room, and had„had possession of them ever since; that said coupon bonds were subsequently, by the direction of her father and in his presence, placed in an envelope, on which there was the following endorsement: “ A present to Charlotte M. Johnson from James Frazier, Coupons, July 10th, 1864.” That the words “ from James Frazier ” were in the hand writing of her father, and the rest in her hand writing; that the gift of said bonds by her father to her, was entirely free and voluntary, without any request or suggestion of any kind from her or her husband; that her husband, as a shipmaster, was absent from Baltimore from October, 1860, to July, 1865, with the exception of about six days in the latter part of 1863, so that he was away from home upon long voyages in August, 1861, and in July, 1864, at the times when the house, furniture and coupon bonds were given to his wife. The answer denied indignantly the charges of fraud contained in the bill, and the charge of confederating and conspiring with James M. Frazier. It also denied that it was the intention of James Frazier, at any time, to establish an equality among his children and descendants. That while he gave legacies to all his grand-daughters, he entirely left out' his grand-sons from his frill, and left a child’s portion, in the residue of his estate, to four sons-in-law — three of whom were rich men — and the widow of a deceased son was entirely left out of the will, although she was poor and had a son fourteen years of age, for whom no provision was made. The defendant, James M. Frazier, likewise answering under oath, stated that the allegations of the bill of complaint, that James Frazier, towards the close of his life, was incapable of intelligent transaction of business, and that more than a year before his death, he sank into a state of hopeless mental imbecility, and lost all power of making or taking care of his property, or of resisting influences which those by whom he was immediately surrounded, might choose to exercise, were utterly and flagrantly false and unfounded; and, on the contrary, averred that, up to the day previous to his father’s death, he was in the full and conscious use of all his reasoning powers, of sound and disposing mind, memory and understanding, and that although his hearing had become somewhat imperfect, and his sight affected by advanced age and consequent physical debility, yet he was perfectly capable of comprehending the various transactions to which the control of so large an estate, and the management of its revenue gave rise, and such was the retentive powers of his memory, that he repeatedly, up to the time of his decease, notified the defendant, as his agent and attorney, on what particular days the respective dividends became due upon the stocks which he held, and never failed in designating the proper time to apply for them. That in conformity with an intention often expressed to him by his father; on the 6th of November, 1865, he executed and delivered to the respondent a letter or power of attorney whereby he was authorized and empowered to transact all business requiring the presence and name “of his father,” “to enter into and take possession of property belonging to him, to receive and receipt for all moneys due him, and to sign or endorse his name to all checks or orders for the payment of money to or on which his name was necessary to make good and valid;” that the power of attorney was signed by his father, and acknowledged by him before Thos. W. Griffin, Esq., a justice of the peace, who, together with the respondent’s sister, Charlotte, signed the same as witnesses; that the power of attorney was made by his father, ■without the slightest solicitation on the part of the respondent ; that at the time of signing and sealing the same, his father was in full possession of his mental powers; that he was perfectly conscious of the nature of the transaction, and aware of the character and effect of the instrument; that he was fully capable of making a valid deed or contract, and that all and every of the complainant’s allegations in his bill to the contrary, were utterly and scandalously false. The answer further stated, that after the execution of the power of attorney, in pursuance of the authority thereby vested in him, he received and accounted to his father for all dividends accruing from stocks, all rents and income from his real and leasehold estate and other property; that he attended, under the instructions of his father, to the sole exchange and transfers of his stocks, and constantly acted in strict conformity with the power and trust with which he was invested; that during the whole period of the agency thus voluntarily conferred upon him by his father, he had acted with the most scrupulous good faith; that he had never appropriated to his own use any money or property belonging to his father’s estate, except what was freely and without solicitation given to him by his father. The answer also admitted the gift of the Railway bonds by the -testator to his daughter Charlotte, averring that in December, 1865, the respondent heard his father say, in response to a question put to him by Charles R. Johnson,, that he had given the bonds or coupons to Charlotte. The answer further stated that on or about the 22d of February, 1866, while sitting with his father, he remarked to the respondent that “ inasmuch as he had given to his daughter, Charlotte, his Northern Central Railway bonds, he would now give to the respondent all of his seven-thirty United States bonds, then deposited in bank, (meaning the Second National Bank of Baltimore.”) He said to the respondent, “take them and make good use of them.” The respondent warmly expressed his gratitude to his father for .so generous and liberal a donation, but at the same time intimated his apprehension that his father’s designs and his own motives might be misconstrued, and that difficulties might arise out of the transaction. To this remark of the respondent, his father promptly responded: “ Who can make trouble ? I can do as I please with my own property, as I have earned it all myself.” After a brief interval, on the same occasion, he again said to the respondent, “ keep those seven-thirties in your own name, and then you will be sure to have them; your sister, Charlotte, has her bonds in her own possession ; ” that about the 15th day of August last past, the respondent, having determined to return to the State of Kentucky, withdrew said bonds from bank, and had ever since retained them in his own possession; that at the time of said withdrawal, there were four seven-thirty bonds of the denomination of five thousand dollars each, four of said bonds of the denomination each of one thousand dollars, and three of said bonds each of' the denomination of five hundred dollars; that the said bonds were voluntarily and freely given to the respondent by his father, without any solicitation, importunity or unfair dealing on the part of the respondent; that at the time when said gift was made, and when the said property was taken into possession by the respondent, his father was sound in mind, fully sensible of the nature of the transaction, and cognizant of any step taken by the respondent to render his title to said property perfect. The answer further stated that in the month of May, 1865, the testator, in accordance with a previously expressed purpose, by deeds of gift duly executed, acknowledged and recorded, conveyed to the respondent, by the name of James Erazier, Jr., four several parcels of ground, with the improvements thereon, situated in the city of Baltimore, the locations of which said lots were properly designated in the complainant’s bill; that said deeds Avere voluntarily made by the respondent’s father, AA'ithout any request or solicitation on the part of the respondent; that his father was at the time of their execution, fully capable of making a ATalid deed or contract; that the deeds were each and all made and executed in good faith; and upon a valid and legal consideration, and conferred upon the respondent a perfect title in laAV and equity to the property sought to be conveyed, and that all the allegations to the contrary in the complainant’s bill, AA'ere utterly false and unfounded. That at the time of the alleged conveyance of the house and lot on East Baltimore street, by his father to his sister, Charlotte M. Johnson, the respondent Avas residing in the State of Kentucky, and had no personal knoAvledge of the circumstances attending the same, but he had heard his father say, that he had given the house and furniture therein contained, to his said sister. The answer denied all and all manner of unlaAvful combination and confederacy wherewith he Avas charged by the bill of complaint, jecially all connivance, collusion and confederacy Avith Oiianus B. Johnson and Charlotte M. Johnson, as alleged in the bill. A commission Avas issued and a great number of AAdtnesses AA’ere examined. The complainant was likewise examined, under the Act of 1864, ch. 109, and the defendant, Mrs. Johnson, became a Avitness on her OAvn offer. After hearing, the Court, on the 6th of February, 1869, passed a decree dismissing the bill, in so far as it sought to set aside the conveyances from James Frazier, the testator, to Charlotte M. Johnson and James M. Frazier, respectively, annulling the gifts of the Railway bonds and the United States seven-thirties, and adjudging that they belonged to, and were part of, the estate of the testator. From this decree Charles R. Johnson and Charlotte M. Johnson appealed.