Duttera v. Babylon , 83 Md. 536 ( 1896 )

McSherry, C. J.,

delivered the opinion of the Court.

The bill of complaint with which the proceedings in this case were begun is a creditor’s bill, and was filed by Martha A. Duttera against her step-mother and other defendants, most of whom are but nominal parties. It seeks to have vacated, annulled and set aside as fraudulent, and because procured by the undue inflnence of a yonng woman over an old man, a conveyance of a small parcel of real estate and sundry assignments of choses in action, which conveyance and assignments were all made by William Babylon, the father of the plaintiff, to Sarah Babylon, his second wife, and now his widow. The bill is founded on an alleged indebtedness claimed to have been due by the father in his lifetime to the daughter, and evidenced by a single bill purporting to have been executed by William Babylon, payable to the plaintiff, for twenty-six thousand and five hundred dollars. This single bill bears date the third day of March, eighteen hundred and eighty-seven. It was not signed by Babylon, but his name was appended to it, and what professes to be his mark was affixed. The body of the instrument and the name of the obligor are in the handwriting of Amos Duttera, the husband of the plaintiff, who signed it as attesting witness. On its face it sets forth that the sum of twenty-six thousand and five hundred dollars is the amount due to the obligee from her mother, Anna Barbara Bablyon, deceased, and it bears interest from its date. William Babylon was an aged man and a widower upwards of seventy-eight years old when this single-bill professes to have been given. He married his first wife, the mother of the plaintiff, in eighteen hundred and thirty-eight, and she died in eighteen hundred and eighty-six. Less than a year after-wards, and subsequent to the date of the single-bill, he married his second wife, a woman of thirty-two years of age, -and she is the only real defendant in the pending case. Before his death, which occurred in eighteen hundred and ninety-three, he made his will, wherein, after giving to his wife a small legacy of household furniture, he.declared that he had already conveyed to her the parcel of real estate above alluded to and had assigned to her certain mortgages and given her certain moneys, “ in lieu of all dower, rights or claims which she would otherwise possess in the property bequeathed and disposed of by this will.” He then directed all-his cash to be divided between his daughter and her two sons, and made the daughter residuary devisee and legatee. Prior to the date of this will, but after the date of the alleged single-bill, he and his second wife, the defendant, Sarah, conveyed by deed as a voluntary gift to one of the sons of his daughter, a farm of about one hundred and sixty-nine acres of land, valued at from eight to ten thousand dollars, and in like manner they also conveyed to the husband of the plaintiff a house and lot valued at six hundred dollars ; and he transferred to the plaintiff bank stock and a mortgage aggregating in value seventeen hundred and fifty dollars. Under the will, something over five thousand dollars will pass to the daughter and her two sons. The total value of the property which the daughter, her husband and sons received from William Babylon in his lifetime, after his second marriage, and under his will after his death, is nearly eighteen thousand dollars.

The daughter, suing by one of her sons as next friend, now seeks to have the conveyance and the transfers made to the second wife, in lieu of dower, as declared in the will, set aside, to the end that the single-bill for twenty-six thousand five hundred dollars may be paid out of the proceeds of their sale and collection; though thereby the widow who voluntarily parted with her potential dower-right in the farm given to one of the plaintiff’s sons and her potential dower-right in the house given to the plaintiff’s husband, in total ignorance of the existence of the alleged single-bill, would be stripped of every vestige of interest in William Babylon’s0 estate.

We do not deem it necessary to go into an examination of the facts which throw, to say the least, grave suspicion around the genuineness of the single-bill, because there are other grounds upon which the decree dismissing the bill and denying the relief sought by the plaintiff must be affirmed. The answer denies that this conveyance and these transfers to Sarah Babylon, which are now attacked and assailed were made under the dominion of an undue influence or with an intent to hinder or delay the creditors of William Babylon ; and it further denies that they operate to so hinder or delay such creditors. It also denies that the decedent was a debtor of the plaintiff. If, conceding that William Babylon made his mark to the single-bill, it nevertheless appears with sufficient clearness and certainty from the evidence, that there was no consideration to support the obligation, then, as is perfectly obvious, the single-bill does not establish a debt which constitutes the plaintiff a creditor of her father; and if she be not a creditor, she has not, apart from all other objections, a standing in a Court of Equity to impeach the transactions which, as creditor, and only as creditor, she seeks to nullify.

Now, there is not the faintest trace of evidence in the somewhat lengthy record before us to indicate that Sarah Babylon exerted or attempted to exert an undue or forbidden influence over her aged husband. The mere inequality in their ages furnishes of itself, without more, no ground to base even a conjecture of undue influence on when it is remembered, as the testimony shows, that William Babylon was, though feeble in body, a self-willed and rather strong-minded man. This feature of the controversy, in the absence of any evidence bearing upon it, calls for no further comment.

Whilst a husband cannot, by voluntary transfers and conveyances to his wife, lawfully strip himself of his property to the prejudice of his creditors, a wife to whom transfers are made in lieu of a potential light of dower, and who has relinquished her inchoate dower in other property on the faith of the validity of such transfers, cannot be treated as a mere volunteer entitled to no consideration at the hands of a Court of Equity. Her inchoate right of dower in lands is a substantial and valuable interest which will be protected and preserved to her, though it is not such a right as may be bargained and sold. Reiff v. Horst, 55 Md. 42. Nevertheless its release by the wife may constitute, even as against the husband’s creditors, a valuable consideration for a valid payment to her by him of such a sum as a Court of Equity may, in a given case, deem reasonable. Reiff v. Horst, supra. And as to personal property, though the husband may lawfully, as against his wife, dispose of it during his life, yet she is so far interested in it that he cannot part with it. to her detriment if the transaction be but colorable or be attended by circumstances indicative of fraud upon her rights. Hays v. Henry, 1 Md. Ch. Dec. 337 ; Feigley v. Feigley, 7 Md. 562 ; Sanborn v. Lang, 41 Md. 113; Rabbitt v. Gaither, 67 Md. 94. A widow to whom a bequest is made by her husband in lieu of dower does not take as a donee or volunteer, but as a meritorious purchaser and contractor. Durham v. Rhodes and wife, 23 Md. 242. Hence, when such a bequest to her is assailed as unjust or injurious to creditors and in fraud of their rights, she will be allowed full satisfaction for her dower. Hall’s case, 1 Bl. 204; Gibson v. McCormick, 10 G. & J. 113. The property transferred to the second wife by her husband in his lifetime and declared by his will to be in lieu of dower was as effectively given in lieu of dower as if it had been be.queathed in the first instance by the will. There is nothing per se fraudulent in the fact that it was thus given, because she took it, not as a mere volunteer, but, being a meritorious purchaser, she took it for a valuable consideration.

Whether, regard being had to the rights of creditors, the amount thus given in lieu of dower was reasonable or not, is another question, and one which only a creditor can raise. As against the plaintiff if she were not a creditor, William Babylon had the undoubted right to give to his second wife in his lifetime or by his will after his decease, whatever he pleased that belonged to him. This being so, the underlying question in the case recurs: Was the plaintiff in fact a creditor of her father? There is no pretence apart from the evidence furnished by the single-bill that she was ; and the expressed consideration of the single-bill is disputed and assailed. The fact that the obligation is under seal interposes no objection that a Court of Equity cannot brush aside whenever it becomes necessary to investigate the validity and the good faith of any instrument which, in the exercise of its far-reaching jurisdiction, is properly brought before it. The form of an instrument can never preclude that Court from looking beneath the surface and inquiring into the real consideration, if any there be, for which it was given. This power confessedly existing, the inquiry becomes one largely of fact, and we now turn, for its solution, to the evidence contained in the record.

Amos Duttera, the husband of the plaintiff, who, as we have said, attested the execution of the single-bill, was called by the plaintiff as a witness to prove that William Babylon made his mark to the instrument. He testified at large as to his having drawn up the paper; as to his having written Babylon’s name and as to Babylon having made his mark. He further testified as to attesting the mark and described his delivery of the single-bill to Babylon and Babylon’s delivery of it to the witness’ wife, the plaintiff. He also gave evidence as to certain endorsements found on the back of the single-bill which purport to be credits of payments thereon. The single-bill having been thus identified by Duttera and having been filed as an exhibit, he was interrogated, on cross-examination, as to who were present and what was said by Babylon at the time the paper was drawn up and signed ; but these questions and the answers thereto are excepted to as not competent or admissible, because not properly within the scope of legitimate cross-examination. These exceptions are not tenable. It was competent to inquire, on cross-examination, into the details of the events testified to in chief by the witness, and to develop and unfold the whole transanction about which he had been interrogated but partially. One of the main purposes of a cross-examination is to elicit such parts of a transaction imperfectly or not fully disclosed as may qualify or explain that portion of it which has been given, so that the whole and entire occurrence may be exhibited precisely as it took place. To allow the witness merely to state such facts as tended to support the theory of the party who calls him and then to preclude an inquiry into other events forming part of the same transaction might, and probably would, result in suppressing or stifling, rather than in laying bare, the truth. 1 Green Ev., sec. 446 ; Howard v. Oppenheimer, 25 Md. 367 ; Griffith v. Diffenderfer, 50 Md. 478. Upon cross-examination the witness testified that just before the single-bill was drawn up, a conversation, which led to its execution, took place between himself, his wife and her father. In this conversation William Babylon spoke about marrying again, whereupon his daughter, the plaintiff, said: "Father, I am surprised at your thinking about getting married so soon after mother’s death. The best thing we can do is to make a settlement.” Her father then asked her what she wanted, and she replied: “ Twenty-six thousand dollars from mother and Johnny, and five hundred dollars for the year Amos and I worked for you and never received any pay.” To which William Babylon made answer: “ I think that’s pretty steep, and I have made up my mind that I would not give away any of my estate during my lifetime.” Whereupon the plaintiff said : “ That is not what you promised mother. Give me your obligation and 1 will not press the payment of it during your lifetime.” He said: “That is a horse of another color,” and then the single bill was drawn up, and when it was read to him, Babylon remarked: “ Now I can spend as much money as I please, and be my own master.” When the witness was asked “ what was the object in view in taking this note,” he answered : “ Just to get what he promised his wife to give his daughter.” And when asked how the amount of twenty-six thousand dollars was ascertained, he said : “ Mrs. Duttera and myself estimated his property at thirty-nine thousand dollars, and estimated twenty-six thousand to be two-thirds of that.” Now, it is perfectly obvious that the amount fixed in this single bill as the amount now claimed by Mrs. Duttera to be due to her by her father, represented no indebtedness by him to her at all. A rough estimate of Babylon’s worth was evidently made and the obligation was drawn up for two-thirds of that amount, not because that sum or any other was really due, but because the daughter and her husband assumed that the daughter would be entitled to that proportion of her father’s estate ; and they were both apprehensive that he would marry again, as the testimony just quoted indicates, and that the second wife might get possession of his property. That Babylon himself never supposed he was contracting a debt is apparent from his unwillingness to sign the paper until he was assured its execution would not interfere with his disposal of his property as he pleased. The pretence that the sum named in the single bill-represented the amount which Babylon had received from.his first wife and what he promised her to pay to his daughter is wholly insufficient to constitute a consideration that will support the obligation. If Babylon received any money from his first wife, of which averment there is no' evidence but the most vague hearsay, he received it long before the Act of i860 was passed and when, therefore, he had a right to treat it as his own (Diggs v. McCullough, 69 Md. 592); and he either never promised her to repay it, or, having promised, he never did repay it, and she died without having received it. If he promised his first wife that he would pay the money he received from her to his daughter, that promise was a mere nudum pactum. In either event there was no money due to the daughter from her mother, as the single bill on its face asserts. The testimony of Duttera utterly explodes the theory of there •ever having been the relation of debtor and creditor between Babylon and his daughter ; and places her in the attitude of claiming payment of a debt where no debt is due. But there is another aspect of the plaintiff’s case that ought not to be passed by without some comment. Knowing as she did all the circumstances attending the execution of the single bill and keeping its execution a profound secret from her stepmother, and being aware that her father believed he had the perfect right to spend his money and to do what he pleased with his property notwithstanding she held the bond, she permitted him to give to herself, her husband and her sons, in his lifetime, nearly twelve thousand dollars worth of property, in a large part of which would have been included the dower right of the second wife had she not united in the deeds, and then, after his death, whilst holding on to what she thus received, she is endeavoring to strip his widow of every farthing given to her in .lieu of the very dower' right which the second wife relinquished to the plaintiff’s husband and son. Such an attempt does not commend itself to a Court of Equity.

As then, the appellee does not hold without a consideration or in the capacity of a volunteer, the property which she received from her husband ; and as the appellant is not and never was a creditor of her father, the Circuit Court for Carroll County was clearly right in dismissing the bill of complaint and in refusing to grant the relief prayed under it. This being the conclusion to which we have come, we affirm the decree appealed from.

(Decided June 17th, 1896).

Decree affirmed with costs above and below.