Charles E. Whitehurst died on January 30th, 1924, intestate. On February 7th, 1924, letters of administration upon his estate were granted by the Orphans' Court of Baltimore City to M. Morris Whitehurst and J. Herbert Whitehurst, brothers, and to Anna L. Whitehurst Taylor, mother, of the deceased, who duly qualified. On August 8th, 1924, Claire J. Ulrich Whitehurst, the alleged widow of the deceased, filed a petition alleging that she was the widow of the deceased and as such was entitled to administer his estate, and that the letters of administration theretofore granted had been improvidently granted and should be revoked. On September 3rd, 1924, the administrators filed an answer to said petition denying that the petitioner was the widow of the deceased, and asserting that he died unmarried. Pending *Page 612 these proceedings in the orphans' court an alleged settlement was reached, and a deed was executed by the plaintiff herein to the said Anna L. Whitehurst Taylor on January 9th, 1925. In this deed there are recitals of the death, intestate, of the said Charles E. Whitehurst; and the claim of "Claire J. Ulrich" to be his widow and to have the right to share in his estate and to use his name; and the desire of the grantor to sell all of said rights "and particularly any right that she may now have or thereafter acquire as the alleged widow of Charles E. Whitehurst, in the estate of said Charles E. Whitehurst * * *"; and the willingness of said grantee to purchase the same; and in consideration of the premises and the sum of five dollars the grantor grants, conveys and releases to the grantee all the rights recited, and particularly all the right, title and interest in and to any part of the estate of Charles E. Whitehurst, and any claim or right of action against said estate as the alleged widow of said decedant. The deed is signed by the grantor in three different ways, viz: "Mrs. Claire J. Ulrich Whitehurst," "Mrs C.E.W.", "Claire J. Ulrich"; and it is "accepted for the estate of Charles E. Whitehurst, by M. Morris Whitehurst, administrator." On January 31st, 1925, the net estate, amounting to $271,716.48, was distributed to Mrs. Taylor. Subsequently, on October 17th, 1925, the bill of complaint in this case was filed by the alleged widow against Mrs. Taylor on the ground of fraud in procuring the said settlement. The defendant demurred to the bill, the demurrer was overruled, and on appeal to this court the ruling of the chancellor was affirmed.
In the opinion of this court, reported in 151 Md. 621, the allegations of the bill are sufficiently set out. The answer of the defendant filed December 30th, 1926, denies the material allegations of the bill. On February 16th, 1927, the death of the defendant was suggested by the petition of her executors, and on March 3rd, 1927, the executors were substituted as parties defendant.
The chancellor, after considering the many depositions *Page 613 filed, and the mass of testimony taken before him, found against the validity of plaintiff's claim to be the widow of the decedent, and dismissed the bill. This appeal is from that decree.
The two questions we have to decide are: (1) Was plaintiff the lawful wife of Charles E. Whitehurst? (2) If she is the widow of the decedent, did she effectually convey and release her interest in his estate by the deed of January 9th, 1925?
The answer to the first question depends upon the genuineness of an alleged agreement between the plaintiff and the said Charles E. Whitehurst to become husband and wife on the night of April 9th, 1923, claimed by plaintiff to be evidenced by the writing of their names in a prayer book. The prayer book offered in evidence contains a ceremony for mixed marriages. (In this case the plaintiff was a Catholic and Whitehurst a Protestant.) At the part of the ceremony, page 449, where the man takes the woman to be his wife, appear the words "Charles" and "Claire," and on page 450, where the woman takes the man to be her husband, appear the words Claire and Charles. The contention of the appellant is that the names on page 449 were written by Charles, and those on page 450 were written by Claire.
The chancellor, over objection, permitted the plaintiff to testify as to the alleged ceremony, on the theory that the suit was not against a "distributee as such" but was against Mrs. Taylor as assignee taking under the assignment executed by the plaintiff. We think this was error. Code, art. 35, sec. 3, provides: "In actions or proceedings by or against distributees of a decedent as such, in which * * * decrees may be rendered for or against them, * * * no party to the cause shall be allowed to testify as to any transaction had with or statement made by the * * * intestate." The right of the plaintiff to recover in this suit depended upon the existence vel non of a transaction alleged to have been had by her with the decedent, and upon her being a lawful distributee. She could sue only as a distributee. Her testimony, therefore, as to transactions with the decedent should have been excluded. We are therefore *Page 614 left to the testimony of handwriting experts, to our own comparison of the handwriting in the prayer book, and to the testimony of Mrs. Anna Stevenson, a witness offered by plaintiff, but manifestly a hostile witness.
The defendant's expert was sure, with a sureness characteristic of most experts, that none of the writing in the prayer book was done by Charles, but all was by Claire. The plaintiff's expert was more impressive, because he seemed to forget for whom he was testifying, or rather appeared to be indifferent to the effect of his testimony. He testified without reservation that the "Charles" on page 449 was written by the decedent, and that both names on page 450 were written by plaintiff. As to the "Claire" on page 449, he testified that on his first examination he was inclined to believe it was an imitation, for reasons which he stated, but on comparison with other admitted writings of this name by the decedent, he found the same defects as in the disputed writing, and, while he could not give a positive opinion, theoretically, he said, "taking that altogether, I have a pretty good notion, and I am strongly inclined to believe, that Mr. Whitehurst wrote that signature, and I can give a positive opinion if I knew what caused him to slow up in this writing." Here, speaking of presumptions, and evidently referring to a presumption as to what might have caused Charles to slow up in his writing, he added "my inference would not be worth two cents." This expression counsel for defendant, we think erroneously, interpreted to mean that his opinion as to who wrote the word "Claire" would be worthless. The impression made upon us by Mr. Farrar, plaintiff's expert, is strengthened by our own examination and comparison.
In this connection the testimony of Mrs. Anna Stevenson is most important. She was obviously hostile, and seemed to testify reluctantly to anything that could be of advantage to plaintiff. Her testimony was taken in New York, and she testified in the presence and under the scrutiny of her husband and his father and mother, who refused to leave the room while she was testifying, although requested to do so. By reason of their unfriendly attitude plaintiff's counsel *Page 615 declined to put them on the stand after having summoned them to testify for plaintiff, and they were subsequently used by defendants, under whose influence they evidently were.
On the stand Mrs. Stevenson was shown a statement she had made in her own handwriting and testified, "I don't think there is anything there isn't true." When questioned in detail the only thing which she said did not happen as appeared in the statement was that she went with Claire to the station to meet Charles. The statement follows:
"Saturday Claire sent telegram to come to New York. I called long distance and Claire said to come on to New York; she had something to tell me. I left Sunday morning, arrived in New York at 2 o'clock; Claire met me at station. Went to Martha Washington Hotel and Claire explained they were going to be married (she and Charles) on Monday evening. Monday eve at about 8 o'clock we went to Penna. Station to meet Charles, took taxi to hotel; Claire and Charles left me at hotel; had telephone call that evening, Claire asked if I was all right; had telephone call next morning from Charles, said Claire was fine and would be over shortly; Claire came at eleven o'clock and took me to breakfast; she had had breakfast; went shopping until time to meet Charles at Knickerbocker Grill about 1.30. Conversation at cafe was to effect Charles asked me as a lifelong friend of Claire what my opinion of their marriage was. I said to explain it. He said last night Claire and I were married by having a ceremony ourselves. I said, Didn't you go to church to be married? He said, `No,' I couldn't on account of my mother. Anna, he continued, you do not know my mother; she is a very jealous woman. I am tied down to her terribly; have to wait on her hand and foot. I didn't want publicity, but he said I consider Claire and I married before God. It would be impossible to be married any other way. I said I considered them married under those conditions. Left grill, went shopping; left for Lansdale 6 o'clock."
(Signed) Anna Reeves Stevenson *Page 616
The testimony shows that the Monday referred to in the above statement was Monday, April 9th, 1923.
That statement not only makes it probable that the names were written by Charles and Claire respectively, but that they were written in connection with the ceremony referred to in the statement. Indeed, assuming, as we must, that statement to be true, it would be difficult to reach any other conclusion than that that was what Charles meant when he said "last night Claire and I were married by having a ceremony ourselves." Indeed Mrs. Stevenson testified that Whitehurst explained the marriage ceremony to her, although she said she could not remember what it was.
It is argued by defendant's counsel that the statements made by Mrs. Stevenson about plaintiff and Whitehurst could be easily explained as efforts to prevent a friend of plaintiff from thinking her relations with Whitehurst were of a meretricious character. But there was no reason why Mrs. Stevenson should ever have discovered they were living together. Plaintiff was at the hotel, where up to that time she had been living, and Whitehurst was in Baltimore when Mrs. Stevenson arrived. Nothing would have been easier than for plaintiff and Whitehurst to have arranged to remain apart until after Mrs. Stevenson left. She was not in the habit of visiting plaintiff, and the ingenuity and craftiness with which plaintiff is credited by defendants could readily have found means of providing against discovery thereafter. It was not as if plaintiff had been taken unawares by this visit. According to Mrs. Stevenson, plaintiff invited her to come to New York for the very purpose of telling her she was about to be married.
On the night of the alleged marriage, plaintiff and Whitehurst began their life together at the apartment, and from that time they continued to live together until his death the following January, he spending about four days in each week in Baltimore, where he had several theatres. During these absences she remained at the apartment and, in spite of all the efforts of defendants to find evidence to the contrary, there is not even a suspicion that she was other than *Page 617 faithful to him, notwithstanding she was left alone so much of the time. There could be no better evidence that Mrs. Stevenson regarded them as married than the fact that some months later she and her mother spent a night with her at the apartment. Indeed there is no substantial evidence that her manner of living had ever been loose or immoral. It is significant that two of the men friends of Whitehurst, who had previously shared the apartment with him, never stayed there after the date of the alleged marriage, but surrendered their keys, although they had used them when Whitehurst had other women in the apartment.
Much is attempted to be made by defendants of the fact that the prayer book was not shown any of the several lawyers who were from time to time retained by plaintiff until the last New York attorney was employed. But that loses any unfavorable significance when it is recalled that when she told Mr. Leach, of the Baltimore bar, her first attorney, about the book, he did not regard it as of any importance and spoke of it as fol-de-rol. Eisenberg, the next in order, was told about the book, but he, too, treated it as a matter of no immediate concern, and did not even mention it to Mr. Marbury, his associate in Baltimore. So far as Mr. Leach is concerned, it is not remarkable that a Maryland lawyer should have been unfamiliar with common law marriage, being accustomed here to the strict requirement of a religious ceremony. With so little encouragement it is not surprising that the book was not sooner exhibited. She evidently spoke of the prayer book very soon after Whitehurst's death to a Mrs. Genzberg, and referred to it when she spoke to a Mrs. Wells of a marriage certificate which she said Whitehurst had told her constituted a legal marriage, but which she had found was only a fake.
A large array of witnesses were produced by defendants to testify that Whitehurst was regarded by his friends, and held himself out, as an unmarried man; that plaintiff was known and addressed as Miss Claire Ulrich, registered at hotels, and kept her bank account, in that name. But what else was to be expected if the marriage was to be kept secret? *Page 618 Mrs. Stevenson was not the only witness who testified as to Charles' explanations of his reasons for secrecy.
The story told by Padden, one of defendants' witnesses (if any credence is to be given to one whose testimony in general is inherently unreliable), of a dinner party, composed of Mr. and Mrs. Padden and Whitehurst and plaintiff, the night after the night of the alleged wedding is another instance. The Paddens were celebrating a wedding anniversary, and Whitehurst proposed a toast to Mr. and Mrs. Padden, "and Miss Ulrich stood up and said, `Well, drink to Mr. and Mrs. Whitehurst also'; and Mr. Whitehurst told her that never would there be a `Mrs. Whitehurst' except his mother, as long as his mother was in existence, and she was kind of hurt and got very panicky and nervous." That story was told for the purpose of showing a repudiation by Whitehurst of the idea of marriage between himself and plaintiff. But it could well be interpreted as an impulsive outburst of Mrs. Whitehurst, forgetting momentarily the necessity for secrecy. She would hardly have made such a bold suggestion without foundation.
Several other witnesses, called by defendants, testified that Whitehurst had often said he would never marry so long as his mother lived.
The marriage, however, was not kept entirely secret. We have spoken of the very full explanation made by both the plaintiff and Whitehurst to Mrs. Stevenson. He also introduced plaintiff to trades people, with whom she would come in contact, as Mrs. Whitehurst, notably to Mrs. Wells, to whom he said: "She is no longer Miss Ulrich, but Mrs. Whitehurst." The weight of the testimony, in our opinion, shows that she was known by the employees at the apartment as Mrs. Whitehurst until they came under the influence of defendants and their agents after the death of Whitehurst.
The fact that Whitehurst wrote to plaintiff whenever he was away, even for a few days, would indicate that he regarded her as something more than a kept woman. True, some of these letters are coarse, but not more so than would be expected of the man defendants have made him out to *Page 619 have been. There is also testimony that he indicated to some of his friends that plaintiff was his mistress; but that might mean nothing more than that he had not intended as a marriage the ceremony and relationship into which he had inveigled the plaintiff. We prefer, however, to believe that such representations were a part of the scheme of a coarse but not unkindly man to keep his marriage a secret, rather than that he was a conscienceless betrayer. But even if it be a fact he did not intend the ceremony which he went through to constitute a marriage, and attempted afterwards to repudiate the existence of such a status, such want of intent on his part would not make the ceremony a nullity if he induced plaintiff to believe it valid. As was said in Bissell v. Bissell, 55 Barb. 325, if a man, while endeavoring to accomplish a woman's seduction, blunders into matrimony, he has no one but himself to blame.
Having reached the conclusion that the writing in the prayer-book was genuine, and that the ceremony was intended to constitute a contract per verba de presenti between the parties; that it was followed by cohabitation; that there was a definite and explicit declaration and acknowledgment of the marriage following the ceremony, and introduction to some, at least, of those with whom the parties came in contact in business and domestic relations, the question is: Did all of these things constitute a valid marriage under the law of New York? Our conclusion is that they more than met the requirement of that law, on the testimony of Mr. Matthews, a reputable New York lawyer, who testified as an expert for plaintiff, and whose opinion we think is supported by the New York decisions. He said: "The essentials of a valid marriage under the law of New York are, first, two parties competent to be married, a man and a woman otherwise competent to be married, and an agreement presently to become, and assume the obligations towards each other of, husband and wife." He further testified that neither repute nor cohabitation is necessary, once the agreement of marriage is established. Such a marriage is described, technically, as a marriage per verba de presenti. *Page 620 Mr. Matthews is supported in his view by the author of a very full note to Grigsby v. Reib, L.R.A. 1915 E, note beginning at page 8, and by the author of the note to Peters v. Peters, 33 A.L.R., note beginning at page 27. In both these notes the New York authorities are collected, and it is definitely stated that New York is among the states which hold the view above stated; and Mr. Koegel in his book on Common Law Marriage, page 164, also includes New York among the states so holding. See also 2Kent, pages 86 and 87; Bishop on Marriage, Divorce andSeparation, secs. 317 et seq.
It is not necessary, however, to go that far in this case, and, after a careful reading of Judge Hiscock's testimony, as an expert for defendants, we are of the opinion that the facts found by us would constitute marriage in New York even in his view. For we do not believe he meant to go so far as to say that in a case where there was satisfactory proof of an agreement per verba depresenti it would be necessary to prove not only repute, but an undivided repute. Undoubtedly that is necessary where the marriage is to be inferred solely from cohabitation and repute. To hold that undivided repute is necessary in a case such as the present one, would be to hold that the same character and amount of proof of repute is required to establish a marriage where an actual contract is proved, as would be necessary where there is no evidence of an actual contract, and it is sought to have a contract inferred from cohabitation and repute alone.
Our conclusion is that the plaintiff was lawfully married to Charles E. Whitehurst, and that she is entitled to the widow's share in his estate, less the amount she has already received, unless the deed purporting to convey her interest is a valid instrument.
Plaintiff claims that she was induced to execute the deed by misrepresentation and fraud. She is of course a competent witness as to what occurred in connection with the settlement.
Her testimony is that the deed was brought by Ascher in Walsh's room and read by him to her in the presence of *Page 621 Walsh, and in this she is corroborated by Walsh; that Ascher "told me that it recognized me as the widow, and he read it to me where it said that it did: `And to have the right to share in his estate and in his name.'" After that was done she agreed to sign and did sign one paper; that she first signed Mrs. Claire J. Ulrich Whitehurst; that Ascher then took the paper out of the room, and came back again and said "you better sign this again, — they want a different signature of yours; a different name"; that she then signed "Mrs. C.E.W.," and Ascher again took the paper out and came back and said "They want you to sign your stage name." Witness continued, "Then it occurred to me that I did not see why I was signing anything anyway because it was up to them to sign the paper, and so I had this paper and Mr. Ascher said to sign it again, and Mr. Walsh said, `You might as well do it, they want to make sure they have every name that you have ever had,' so I said, `Mr. Ascher, I do not see why I should sign my name, it is up to them to recognize me and not me to recognize myself,' and so then he said, `Well, give me the paper and I will take it out,' and I said, `No, you go out and get them to sign their own names on it or make them come in and sign it before I let them have my signature,' and then I decided there was something funny, and Mr. Ascher went out. He said `Give me the paper,' and I said, `No, I will tear it up before I give it to you,' and then Mr. Walsh sort of fussed about it. He said, `Well, I don't know that we better bother talking about it. This seems like a lot of trouble for nothing. I don't know why they want so many signatures.' Then Mr. Ascher went out and came back and said, `Well, they signed the paper,' and brought me the settlement agreement that I have with the notary typewritten on, and the name, the agreement and acknowledgment was accepted for the estate by Milton Whitehurst." That up to this time she had not seen Mr. Winslow at all; that after he gave her the paper that had their signatures on it, Walsh said he thought that was all right, and agreed with her that she should have it; that Ascher again left the room and upon his return said "Now, just sign `Claire J. Ulrich,' that is all they want, and *Page 622 then they have all the names," and she replied "Well, all right"; that Ascher then told her, "It does not make any difference anyway, you have three different signatures and it acknowledges you and there cannot be any question about it, just sign it," and she signed again as requested; that Ascher asked her to come out and acknowledge the signature to Mr. Winslow; that Ascher introduced her to Winslow, and Winslow said "Do you acknowledge this paper?" and she replied, "Why, if it acknowledges me as the widow, that is all I want"; and Winslow replied, "Well, it does; you can read it."
There is no substantial difference between her testimony and Ascher's as to what occurred at the time of the execution of the paper, except that Ascher denied that Winslow told her it acknowledged her as the widow. Winslow also denied that he said the paper acknowledged her as the widow.
Referring to an interview that preceded the execution of the deed, Ascher denied that he told her he had arrived at an agreement which would recognize her as the widow of Charles E. Whitehurst, and said he told her they refused to accept her in the family. But there is no evidence that he said a word to undeceive her as to the effect of the written acceptance and acknowledgment by the administrator, nor did he deny that at that time he told her the deed recognized her. But even if he had denied it, we could not give such testimony much credence, in view of the fact that he permitted his client to remain in ignorance of the futility of the things she was insisting upon as conditions to her executing the deed, and actually obtained those meaningless concessions for her.
Walsh's testimony corroborates plaintiff in regard to Ascher's reading the paper to her. He was asked: "Did he (Ascher) make any statement to her that it did, that is, the paper recognized or did not recognize her as the widow of Charles E. Whitehurst? A. He read something from it that stated that, I believe. Q. That stated what? A. Something about recognizing her as Mrs. Whitehurst."
So it would appear that plaintiff was not alone in believing that Ascher was so representing the paper. But whether he did so represent it or not, or whether Winslow did or not, we *Page 623 are satisfied plaintiff understood that the acceptance of the paper for the estate by one of the administrators in the manner it was done had that effect, and that both Ascher and Winslow knew she executed it with that understanding.
In this connection it may be well to consider what bearing the quotation in appellees' brief from Smith v. Humphreys,104 Md. 290, and Smith v. Martin, 154 Md. 462, at page 476, has upon the facts of the present case. There it was said in substance that one who can read and who has average intelligence but asks the aid of a court of equity in getting rid of a document, which he did not read, on the ground of ignorance, should be required to establish a very clear case before receiving the assistance of the court. That clearly had reference to the amount of proof required in such a case, and does not apply to a case where the defendant's agent actually knew of the misapprehension of the plaintiff, and that she executed the deed under such misapprehension. Here the agent knew that there was no meeting of the minds of the parties to the contract.
Both Ascher and Winslow are lawyers, and they certainly knew that the noting on the deed, "Accepted for the estate of Charles E. Whitehurst," added nothing to the effect of the deed; and they knew equally well that plaintiff thought it was of importance; and neither of them did or said anything to enlighten her. Winslow admits that he knew it was meaningless, so far as any legal effect was concerned. He said: "I told Mr. Ascher it was meaningless and it did not do us any harm, and if it satisfied her in any way my client would do it." "Q. In addition to your having gotten Mr. Milton Whitehurst to do this meaningless act of signing or accepting for the estate of Whitehurst, even that did not satisfy her? A. No; she wanted the acknowledgment. Q. Was it by your advice that Mr. Milton Whitehurst responded to that and acknowledged it? A. I did not advise him to do it. I said it was all right for him to do it." Winslow further said "I thought she was temperamental, according to Mr. Ascher."
But he must have known that the matter of recognition of her status as the widow of Whitehurst was important to plaintiff. *Page 624 He and the Whitehursts knew that she was insisting on that, and that her Baltimore lawyers had made it a condition to any settlement. He testified: "I did not know that definitely, I heard there was some proposition she must be recognized." "Q. Mr. Herbert Whitehurst said he told you that in consequence of that he gave up trying to settle through Howard Bryant? A. I heard Dr. Whitehurst say Mr. Bryant was insisting on that." Winslow further admits that Ascher was trying in the negotiations immediately preceding the settlement to secure such recognition. Mr. Marbury testified that plaintiff's main desire was to be recognized as the widow; that she did not seem to care about the money.
Eisenberg testified that she refused to consider an offer of $15,000, and Ascher knew this, because the offer is referred to in the agreement between Eisenberg, Marbury, Ascher, and plaintiff in regard to fee. Having this knowledge, Ascher must have known that plaintiff's alleged enthusiasm about the settlement, and her alleged desire to reward Walsh for the great service he had rendered her, were not based on the pecuniary results of the settlement, even if she knew that the amount paid was $16,000 instead of $11,000, which is questionable.
We are not holding that Mrs. Taylor was charged with Ascher's knowledge. But she was bound by the knowledge of Winslow, her agent, and for what Winslow as a lawyer and intelligent man ought to have inferred from the conduct of Ascher.
Our conclusion is that the deed should be declared a nullity, because Winslow knew that there was not a meeting of the minds of the parties, as to something he knew plaintiff regarded as an essential element of the contract. If the deed were permitted to stand, plaintiff would be deprived of, and defendants would acquire, a valuable interest in Whitehurst's estate, under a contract which did not in fact provide for the substantial, if not the most important, part of the consideration for which plaintiff thought she was parting with it, defendant's agent knowing at the time that she was acting under such misapprehension. This finding, we think, *Page 625 is well within the principle of the decision in Brager v.Friedenwald, 128 Md. 8. It is not necessary to find that the motives of Ascher and Mrs. Taylor's agents were fraudulent. It is enough, and we find, that their conduct in the matter of the settlement amounted to fraud in law.
There are a number of facts immediately connected with this transaction, and leading up to and following it, of a questionable character, which we have not found it necessary to discuss, or to make the basis of our decision.
In accounting with the plaintiff the defendants should be credited with the sixteen thousand dollars paid to Ascher, her attorney. While the circumstances give rise to suspicion, we are unable to find as a fact from the record that Mrs. Taylor or her agents were parties to the improper disposition of any part of that fund.
Decree reversed, and case remanded in order that a decree maybe passed in accordance with this opinion, with costs to theappellant.