See Restatement (Third) of Restitution and Unjust Enrichment § 68; Restatement (First) of Restitution § 173. Ultragenyx thinks Poole v. Poole, 99 A. 551 (Md. 1916), says otherwise. ECF 6, at 18.
during his life, but seeks thereby to defeat the claims of his widow at his death, the law pronounces it a fraud upon her rights, and this fraud may be proved and established by his retention of possession, during his life, by a reservation of an interest to himself on the face of the conveyance, or by an outside agreement or arrangement between him and his grantee or donee, to the effect that he shall receive the benefit of, or have control over, the property, during his life, or by any other fraudulent participation on the part of the grantee or donee to aid him in his purpose of defeating the rights which the law gives to his widow upon his death.See also Mushaw v. Mushaw, 183 Md. 511, 39 A.2d 465 (1944); Bestry v. Dorn, 180 Md. 42, 22 A.2d 552 (1941); Bullen v. Safe Dep. Tr. Co., 177 Md. 271, 9 A.2d 581 (1939); Whitehill v. Thiess, 161 Md. 657, 158 A. 347 (1932); Sturgis v. Citizens Nat. Bank, 152 Md. 654, 137 A. 378 (1927); Jaworski v. Wisniewski, 149 Md. 109, 131 A. 40 (1925); Poole v. Poole, 129 Md. 387, 99 A. 551 (1916); Brown v. Fidelity Trust Co., 126 Md. 175, 94 A. 523 (1915); Collins v. Collins, 98 Md. 473, 57 A. 597 (1904); Duttera v. Babylon, 83 Md. 536, 35 A. 64 (1896); Sanborn v. Lang, 41 Md. 107 (1874); Feigley v. Feigley, 7 Md. 537 (1855); Hays v. Henry, 1 Md. Ch. 337 (1848) Sykes, Inter Vivos Transfers in Violation of the Rights of Surviving Spouses, 10 Md.L.Rev. 1 (1949). Prior to 1970, the test to determine whether there had been a fraud on a widow's marital rights applied to personalty only because the transfer of legal title to real property, without the wife's consent, did not destroy her right of dower upon her husband's death.
Kernan v. Carter, 132 Md. 577, 583, 104 A. 530 (1918). To the same effect, Poole v. Poole, 129 Md. 387, 99 A. 551 (1916). On the other hand, we find such sweeping statements narrowed by a consideration of the facts at hand.
Martin v. Martin, 282 Ky. 411, 138 S.W.2d 509; Merz v. Tower Grove Bank Trust Co. 344 Mo. 1150, 130 S.W.2d 611; Ibey v. Ibey, 93 N.H. 434, 43 A.2d 157. Osborn v. Osborn, 102 Kan. 890, 172 P. 23; Wright v. Holmes, 100 Me. 508, 62 A. 507, 3 L.R.A.(N.S.) 769; Poole v. Poole, 129 Md. 387, 99 A. 551; Rabbitt v. Gaither, 67 Md. 94, 8 A. 744; Leonard v. Leonard, 181 Mass, 458, 63 N.E. 1068; Newman v. Dore, 275 N.Y. 371, 9 N.E.2d 966, 112 A.L.R. 643; Potter Title Trust Co. v. Braum, 294 Pa. 482, 144 A. 401, 64 A.L.R. 463; see, Cahn, Restraints on Disinheritance, 85 U. of Pa. L.Rev. 139, 151. An interesting discussion and analysis of this theory is found in Sykes, Inter Vivos Transfers in Violation of the Rights of Surviving Spouses, 10 Md. L.Rev. 1. A distinction between "illusory" and "colorable" is made in Smith, The Present Status of "Illusory" Trusts — The Doctrine on Newman v. Dore Brought Down to Date, 44 Mich. L.Rev. 151, 153 to 155.
The rule that an absolute gift in good faith of personalty by a husband, during the joint lives of himself and his wife, is not a fraud on the right of a wife to share in his personal estate at his death, even though made by the husband with the wilful purpose of depriving his wife of this right at his death and affecting his capacity to afford sustenance to her during their joint married life, as is illustrated by a number of decisions (a), is not before the court on this record. (a) Fraudulent intent not shown. Dunnock v. Dunnock, 3 Md. Ch. 140, 147; Brown v. Fidelity Trust Co., 126 Md. 184, 94 A. 523; Poole v. Poole, 129 Md. 387, 99 A. 551; Kernan v. Carter, 132 Md. 577, 104 A. 530; Sturgis v. Citizens' Nat. Bank, 152 Md. 654, 137 A. 378; Whitehill v. Thiess, 161 Md. 657, 137 A. 378. Fraudulent intent sufficiently established: Hays v. Henry, 1 Md. Ch. 337; Sanborn v. Lang, 41 Md. 107; Rabbitt v. Gaither, 67 Md. 105, 8 A. 744; Collins v. Collins, 98 Md. 473, 57 A. 597; Duttera v. Babylon, 83 Md. 544, 35 A. 64; Jaworski v. Wisniewski, 149 Md. 109, 120, 131 A. 40. Decree reversed, with costs of appeal to the appellant, and cause remanded.
"' In Dixon v. Dixon, 123 Md. 44, 90 A. 846, 851, an opinion by Judge Burke, it is said: "`Payment or advance of the purchase money by the party claiming the trust, before or at the time of the purchase, is indispensable.' * * * `It is held in all the cases that the payment, which is the foundation of the trust, must be made out by plain, direct, and unequivocal evidence.' * * * When the plaintiff relies upon mere parol evidence to establish the trust, the `court should view with the greatest caution such evidence, impeaching as it does solemn instruments, the evidence of title to land;'" and see cases therein cited. To the same effect see Johns v. Carroll, 107 Md. 436, 69 A. 36; Beachey v. Heiple, 130 Md. 683, at page 693, 101 A. 553; Poole v. Poole, 129 Md. 387, 99 A. 551; Zimmermann v. Hull, 155 Md. 230, 141 A. 531; Moran v. O'Brien, 156 Md. 221, 144 A. 257, 259. In the last-cited case it was said: "Usually these attacks are upon allegations of fraud, mental incapacity, duress, or undue influence; and even in such cases, to enable them to succeed, the law requires strict, certain, and positive proof. It needs no argument to show that this should be the rule, because the validity of business transactions depends in no small measure upon the stability of deeds and other solemnly executed written agreements. * * * The law applicable to such a case * * * has been often declared by this court to be that the burden of proof not only rests upon the appellee [the person setting up the trust], but she must prove her case by clear and satisfactory evidence."
The court finds nothing in the relation of the grantor and grantee to relieve the plaintiff of the burden of establishing his rights to relief; and, after carefully weighing all the testimony in the light of the circumstances, the court agrees with the decision of the chancellor that the evidence in this record is insufficient for a court of equity to find either fraud or a breach of contract or duty. If a man, without fraud or duress, make a gift, while in the full possession of the capacity validly to contract or grant, he cannot find relief in equity when he would afterwards recall his bounty because of its original improvidence. Diffenderffer v. Knoche, 118 Md. 189, 194, 195; Shaffer v. Cowden, 88 Md. 394, 396, 397, 400; Poole v. Poole, 129 Md. 387, 389, 390; Shriver v. Druid Realty Co., 149 Md. 385, 390; Goodwin v. White, 59 Md. 503, 505, 507, 509; Reil v. Wempe, 145 Md. 448, 463; Simpson v. League, 110 Md. 286, 293. Decree affirmed, with costs to the appellee.
It has been often declared by this court to be that the burden of proof not only rests upon the appellee, but she must prove her case by clear and satisfactory evidence. Poole v. Poole, 129 Md. 387; Dixon v. Dixon, 123 Md. 44; Johns v. Carroll, 107 Md. 437. In Dixon v. Dixon, this court said: "When the plaintiff relies upon mere parol evidence to establish the trust, the court should view with the greatest caution such evidence, impeaching, as it does, a solemn instrument, the evidence of title to land."
6. It is also to be observed that the bill nowhere alleges that the price paid by Hopkins to Irene Studds was not at the time of the purchase a fair price for the fee simple title which Hopkins obtained. It is true that the bill does allege that the appellant received no part of this consideration, but this, taken in connection with the statement that Irene "sold" her interest, and the expressed consideration of "five dollars and other good and valuable considerations" in the deed, is not a sufficient allegation that there was no consideration for the deed of 1911. It has frequently been decided by this Court that, in the absence of inequitable circumstances, a recital of consideration is conclusive between the immediate parties so far as title is concerned, and that where a consideration is actually paid, the fact that some of the grantors did not get their proper share of it will not affect the title of the grantee. Wicklein v. Kidd et al., 149 Md. 412; Combs v. Scharf, 143 Md. 70; Poole v. Poole, 129 Md. 387. In the case now before us it must be assumed, since the bill does not allege the contrary, that Hopkins paid full value for the fee simple title which he secured, and as there is no allegation of any inequitable conduct on which the plaintiff had a right to rely, it follows, under the authorities just cited, that the title acquired by Hopkins cannot be questioned simply because the appellant did not secure part of the consideration from her daughter.
And, of course, the failure of the original grantor to receive the full consideration for a deed will not, of itself, invalidate the deed in the hands of one who, in good faith and for value, purchased the property from the grantee. Combs v. Scharf, 143 Md. 70; Koogle v. Cline, 110 Md. 587; Poole v. Poole, 129 Md. 387; Thompson v. Carroll, 57 Md. 197. In this case the deed on which the Beach mortgage is based was read over to the appellant at the hospital by Mr. Parr, the notary public, and it was then signed and acknowledged by her and given to Parr with the statement that she knew what it was and that there was nothing she would not do for Mr. Weissenborn. Against this the only defense of the appellant is that she does not remember the transaction.