
    JOSEPH ALBERT TAYLOR, Administrator, v. MARY HEWING PIVEC et al.
    
      Gift to Daughter — Undue Influence Not Presumed — Confidential Relations.
    
    That a woman sixty-six years old, with unimpaired faculties and unweakened will, who attended to her affairs until her death, seven years later, and who had a husband to advise with, gave most of her property into the joint ownership of herself and her unmarried daughter, the survivor to have all, in preference to dividing it equally among her children, and that the daughter and an aunt, with whom the daughter divided the property after the mother’s death, lived in close proximity with the mother, did not justify equity in setting aside the gift by the mother.
    
      The trust assumed as between parent and child is that of a child in the parent, and the court does not, in the case of a gift by a parent to a child, assume undue influence oyer the parent by the child.
    Confidential relationship between a mother and daughter, involving a presumption of undue influence hy the daughter in the procurement of a gift from the mother, is not shown by the fact that they lived in close intimacy and harmony.
    The independent advice of a third person is not requisite to the validity of all gifts, even of all gifts to donees in a confidential relation.
    Such advice is not necessary to the. validity of a gift, when the donee is not in a position of influence over the donor, and the donor is not in an unequal or dependent position, hut is apparently capable and acting of her own free will.
    That one gave most of her property to one of her three children does not alone prove that the gift was procured hy undue influence.
    
      Decided January 12th, 1926.
    
    Appeal from the Circuit Court of Baltimore City (Sorter, J.).
    Bill by Joseph Albert Taylor, administrator oí the estate oí Isabel DeL. Hewing, deceased, against Mary Hewing Pivec and others. From a decree dismissing the hill, the plaintiff appeals.
    Affirmed.
    The cause was argued before Bond, O. J., P!attison, Urner, Adicins, Higges, Parke, a'nd Walsh, JJ.
    William■ IT. Lawrence and Joseph W. Starlings, for the appellant.
    
      Daniel R. Randall, for Mary Hewing Pivec and Adelaide L. Hones, appellees.
    
      Frank J. ILoen and George Weems Williams, submitting on brief, for the Savings Bank of Baltimore, appellee.
   Boro, O. J.,

delivered the opinion of the Court.

In this proceeding .the appellant has sought to set aside a transfer of a savings bank deposit made by his decedent seven years before her death, to herself in trust for herself •and her daughter as joint owners, the survivor to become ¡absolute owner. At the time of the transfer the amount on deposit was $4,885.63, and this was increased by subsequent deposits by the mother ¡and by the daughter, so that •at the time of the mother’s death the amount was $9,434.29. With the exception of some real estate and some furniture ¡and personal effects, valued altogether at about $2,000, the 'mother had no other property. The daughter, Mary J. Hewing, since married, 'and now named Mary Hewing P’ivec, drew the money after her mother’s death, retained some of it, and re-deposited the remainder, together with an amount from a separate account of her own, on a like trust for herself and Miss Adelaide I. Hones, the mother’s sister. These present joint owners are the defendants and appellees. The trial court, after having heard evidence on the allegations, found against the administrator, and dismissed his bill of •complaint. He appeal's from the decree.

The bill charges that, in making the 'transfer, the decedent "did not intend to make a gift to her daughter of any interest in the money, but only to make the daughter an agent for the mother’s convenience in drawing the money when age might incapacitate the mother herself. And it charges, further, that the mother did not have the benefit of competent and disinterested advice before having the entry of the transfer made, and that she was unduly persuaded and infiuence in having it made by the daughter and Miss Hones. Upon the trial there was no evidence offered to show a'n .intention to make the daughter a mere agent for the mother, as averred, and the complainant’s ease wias rested entirely upon the charge that the transfer was made by the mother without independent advice, and was procured by undue influence exercised upon the decedent. Support for the charge was sought by the complainant almost entirely in a supposed presumption against the transfer because of tbe relationship of the parties., and a supposed burden upon tbe appellees of disproving procurement by undue influence, and of showing that the mother had the protection of independent advice.

In 1917, when the transfer was made, the mother, her husband, the daughter and Miss Rones lived together in a house owned by Miss Rones, in Baltimore City, as they had lived for more than thirty years. There were two sons, and they had formerly lived there, hut upon thoir marriages, or shortly after, had moved to homos of their own. The father was a carpenter, or contractor, and a capable, active man up to about tbe year 1920. He died in 1922. The a.unt, Miss Rones, was a school teacher until her retirement on a small pension in 1922. The members of tbe household are pictured in the evidence as having lived in such intimacy and harmony as should exist in close family life. There was testimony that Miss Rones was the strong mind of the household, aud exercised her judgment on all things, including the actions of the other members of the household. There is also, some denial of this. Rone of the evidence, however, goes anywhere near showing dependence of the mother on the judgment of Miss Rones, or of any one else, or that either of the appellees might hare been able, if disposed, to make; th.e mother act otherwise than as her own will might direct.

The mother was a woman about sixty-six years old in 1917, when she had the account transferred. One of the sons testified that she was “breaking up” during the last ten years of her life, but did not go so far as to say that she was incapacitated for dealing with such matters as this. Indeed, we understand both sons to agree with other witnesses in the case that the mother wais capable of taking care of her own affairs, and did take care of them, until the day of her death. The complainant had no evidence to offer on the actual transfer, none to show, directly, any persuasion or any interference by the appellees, or by any one else. The daughter testified that the mother and father had consulted on the plan, and had agreed that the transfer of the account should be made, and that the mother explained that the-sons, being prosperous, would not need any of the money, and that if the mother should die before the father, the-daughter would take care of him. She said that officials at the bank explained to the mother the purpose and effect of’ the entry adopted; and bank officials testified -at the trial that it was the regular practice at the bank to make that explana--tion. The aunt, Miss Rones, testified that she did not know of the original transfer until after it had been made. Declarations of the mother before or after the transfer were testified to. The two sons testified to remarks by her tending-to show an intention that at least one of the sons should have-a share of the money. And friends and neighbors of theruother. testified to declarations that the daughter was to-receive it all. ‘The older son testified that whenever he talked-to his mother on his visits to her, or whenever he took her-out riding, during the years since he left the home, one or both of the appellees would be present; but he did not say, or-even intimate, that this was by reason of any arrangement by the appellees, or that there was anything unnatural in it.

Much emphasis is laid on the fact, admitted by the daughter, that when the brothers came to .the house after the mother’s death, asking about assets of the estate, she, the daughter, denied that the mother had -any jnoney or had any bank book. This concealment, the daughter testified, was due to a feeling on her part that the brothers, especially the older one, who had not been on good terms with the sister - for two years or more, had no right to the knowledge. She gave all the facts to the attorneys next day. The incident seems hardly _to throw any light on the transfer of the account seven years before.

The case appears to be, then, that a woman sixty-six years of age, not impaired in her faculties, or weakened in will, and who actually did attend to her affairs up until her death seven years later, and who had her hu-sband to consult and advise with her, gave all her money, constituting the larger-part of all her property, into the joint ownership of herself and her unmarried daughter, the survivor to own ail, and continued it so during the remainder of her life, in preference to arranging for an equal division among her children; and that the daughter, and also the aunt, who now profits by the daughter’s gift, lived in close intimacy with the mother.

We find no ground in that ease for interference by a court of equity.

In the first place, we disagree with the contention that beca,use of the relationship, of the parties, there is a presumption against the gift, and a burden upon the appellees of disproving procurement of it by undue influence. As has been said, there is no affirmative proof here of dependence of the mother upon the judgment and guidance of anyone else, or that either of the appellees might have been able to impose her will on the mother. There is! no affirmative proof of an actual confidential relation within the meaning of the principle invoked by the appellant as imposing such a burden of disproof on the appellees. It is true, of course, that there is a natural element of trust and confidence in the relationship of parent and child, which is so easily abused that the courts require freedom from abuse of it to bo shown by a donee, but as has. often been pointed out, the trust assumed is that by a child in its parent, and gifts to the trusted parent are those which are subjected to the unfavorable presumption. It is only by a reversal of the natural order that a parent comes under the dominion ox influence of a child, and the Court cannot, therefore, begin by assuming it to be so. It must be proved if it is a fact. Henry v. Leech, 123 Md. 436, 441; Highberger v. Stiffer, 21 Md. 338; Zimmerman v. Bitner, 79 Md. 115. And here there is no proof of it. The daughter and her aunt are shown merely to have lived in close intimacy and harmony with the donor, .and a confidential relationship,, upon which dependence of the donor may be assumed, cannot be made of that more intimacy and harmony. There must be something more, and it has not been shown to exist in this case.

The appellant argues that donees aire regularly required, in order to sustain a gift of so Targe a, portion of the donor’s property, to show that the donor had the protection of the independent advice of a third person. We do not agree that such independent advice is requisite to the validity of all gift's, even of all gifts to donees in a confidential relation. In Zimmerman v. Frushour, 108 Md. 115, 126, in an opinion by Judge Pearce, this Court definitely rejected a contention for such a general requirement. And in this case, where it does not appear that the donee, or the donees, were in a position of influence over the donor, where there is nothing to show that the donor was in an unequal or dependent position, but was, for all thalt appears, capable, and acting of her own free will, the advice of aj third person was not necessary to the validity of her gift. And if it were, we should still have to consider the evidence that her husband advised and consulted with her.

The burden of proving undue influence vitiating the gift is therefore upon the complainant. And he has presented no adequate proof of it. A gift of so large a. portion of a donor’s property to only one of three children is such a preference as would be the natural object and result of undue influence, but it would not alone prove actual procurement by undue influence, because it might also result naturally, from the free will and choice of the donor. There are no -other facts sufficient to prove it, and we, therefore, agree with the conclusion of the trial court.

Decree affirmed, the appellant to -pay all costa.  