Acker v. Acker

Johnson, J., delivered the opinion of the Court. On July 20th, 1934, Morris Acker, of Cecil County, Maryland, executed what purported to be his last will and testament. In that document, after making certain minor bequests to some of his relatives and a bequest of $100 to his nurse, he gave and devised the residue of his estate unto the Mercantile Trust Company of Baltimore and his attorney, Lawrence W. Hecht, jointly, in trust, to invest the same in proper and safe securities as they might deem advisable, and further directed that from the net income of the trust estate, on the first day of each calendar month, said trustees pay a sum. not exceeding $75 for such necessities as his son, Joel Acker, his only heir at law, and who had previously been adjudicated a lunatic, might desire and select,- with the approval of the trustees, during the term of his natural life. He further provided that, in the event of emergency or other unforeseen circumstances, the trustees were, in their discretion, to pay an additional sum of $25 to the son during each calendar month, and, if governmental ⁴⁸⁰ assistance of a financial nature were withdrawn from him, the trustees were authorized in their discretion to select a proper home or institution for him, in which case all expenses for 'his support and maintenance were to be paid by the trustees to the persons or institutions • furnishing them.

The trustees were further given power to sell, publicly or privately, and at such times as they might select, testator’s 'home and its contents and all personal property which he owned that was not producing income,, and the right of changing any investments made by testator without previous order of the orphans’ court, in order to carry out the provisions of the trust thereby created. Upon the death of the son, the corpus, together with accruals, less the son’s funeral expenses, was to be paid by the trustees to Hattie Acker, niece of the testator, free and clear of the trust, if she were then living, otherwise in similar manner, to Sarah Acker, testator’s sister-in-law. Testator also named the Mercantile Trust Company of Baltimore 'and Lawrence W. Hecht as executors of his will. Testator departed this life at Port Deposit, Maryland, on June 15th, 1935, from a cerebral hemorrhage, but even before his death Madeline Acker, wife of Joel Acker and also his committee, had through her counsel filed in the Orphans’ Court of Cecil County a petition and notice of her- intention to caveat his will.

It seems this notice had been misplaced, and on June 15th, which was the day of testator’s death, counsel for the committee wrote the deputy register of wills, stating that, if the previous petition and notice had not been found, he inclosed another, also that “Morris Acker is not dead, but I understand he has had a stroke. If you hear of his death, please file this immediately. * * *” On June 17th, 1935, the will was filed with the register of wills for Cecil County, but, in view of the petition and notice of an intention to caveat, it was not probated. An answer was filed, and subsequently five issues were framed and transmitted by the court to the Circuit Court for Cecil County for trial. The first of these related to the factum of the ⁴⁸¹ will, the second as to whether it was understood by, and its contents known to, the testator, the third related to testator’s mental capacity at the time of executing the will, the fourth as to whether it was procured by undue influence, while the fifth was whether the will was procured by fraud exercised and practiced upon the testator.

Madeline Acker, committee of Joel Acker, lunatic, was designated plaintiff, and the testator’s remaining beneficiaries, also the Mercantile Trust Company and Lawrence W. Ilecht, executors and trustees of the residuary estate, were defendants. The case was removed from Cecil County to Kent, and thence to Caroline County, where it was tried. At the close of the plaintiff’s case the court directed verdicts for the defendants upon all issues except the third, which related to the mental capacity of the testator on July 20th, 1934, but refused their third instruction, which challenged the legal sufficiency of the plaintiff’s evidence to show mental incapacity on the part of the testator on the date the will was executed. The trial then proceeded upon the issue of mental capacity, and at the close of the entire case defendants, by their prayer 8-A, again sought to withdraw the case from the consideration of the jury upon the ground that there had been offered no legally sufficient evidence to show that the purported will of July 20th, 1934,. was not executed by the testator when of sound and disposing mind and capable of executing a valid deed or contract.

This instruction was refused, and the jury answered the third issue “no,” thereby determining that at the time testator executed the will he did not possess sufficient mental capacity to execute a valid deed or contract, and upon this question we are called upon to review fifty-two exceptions taken by appellants (defendants, below) to the rulings of the trial court, the second to fiftieth, inclusive, of which relate to rulings upon evidence, the first to the trial court’s overruling an objection made by appellants to a remark of appellee’s counsel in his opening statement, while the fifty-first concerns the prayers. The trial in the lower court consumed five ⁴⁸² days and, in view of the-numerous exceptions, the record is rather bulky. The court will therefore, as far as practical, state its conclusions resulting from a careful consideration of the entire record. Longanecker v. Sowers, 148 Md. 584 , 129 A. 896 ; Donnelly v. Donnelly, 156 Md. 81, 83 , 143 A. 648 .

Morris Acker was a foreigner by birth and came to, this country when a young man. At the time of his death he was approximately sixty-eight years of age, and for about forty years prior to June 1st, 1928, had successfully conducted a department store at Port Deposit. He accumulated a modest fortune, most of which he invested in stocks and bonds, and, notwithstanding the depression, his estate at the time of his death amounted to more than $25,000. Prior to June, 1928, due to a disturbance of his thyroid gland, Acker became mentally and physically an ill man, and accordingly sold his mercantile business to his son, Joel, for $5,000.

He entered the Laurel Sanitarium for treatment and a short time thereafter returned to Port Deposit, later entering a hospital where he underwent an operation which completely relieved him. He thereupon became normal, but in October of that year, while with his wife at Atlantic City, he suffered a stroke of paralysis and was later brought to his home at Port Deposit. Acker had always spoken with a peculiar accent, which after the paralytic stroke was more pronounced, and there is some evidence tending to show that as a result of the stroke one side of his face was somewhat twisted. Before entering the Laurel Sanitarium, and after returning therefrom until his death, such medical attention as he required was rendered by his personal physician, Dr. Clarence I. Benson, who stated that the thyroid difficulty which caused them to commit him to the sanitarium was found to be due to secretions that were being absorbed by his system, producing a toxic effect and a “dazed” condition, but that the subsequent paralysis in no way affected his capacity to transact business and his mentality was that of a normal person until his final attack, which preceded ⁴⁸³ his death a very short time, and this view was held by all who during 1934 transacted business with him.

Upon his return to Port Deposit, after the paralytic stroke in the fall of 1928, he was feeble physically and had no use of his right arm and right leg. At that time his wife was living, and the son, Joel, had previously married Madeline Acker, but they had no children. A nurse was procured in the fall of 1928 and lived in testator’s home until his death, but, at the time of his wife’s death in February, 1930, testator by methodical habits of living had become very much improved physically. At first he was required to use two crutches in getting around, but later discarded one of these and still later was able to walk by using a cane.

Naturally the loss of his wife, to whom he was greatly devoted, caused him much grief, but even before her death, and continuing up to a few days before his decease, it is not disputed that he successfully managed his property and estate. Even in the home he decided what was to be bought and paid his bills promptly, sometimes in cash and at other times by check. On one occasion he had some paperhanging done in the home and throughout the period he looked after his investments, bought and sold stocks and bonds, and this business required him to visit his three Baltimore brokers on an average of once a week. For these trips, as well as any other rides he desired to take, he hired automobiles, and while upon such occasions his nurse usually accompanied him, she knew nothing of the immediate business he was transacting.

When he arrived in •the city, he dismissed her and told her when and where to meet him. Moreover, he gave instructions to his driver as to where to take him. He also in similar manner dealt with a brokerage firm in Wilmington, Delaware, and while throughout this period his use of the right arm and leg was very much restricted by reason of the paralysis, it in no way affected his mentality, and he always knew when the coupons upon his various bonds were due and was careful to clip them. He carried an account at the Cecil National Bank, of which until its ⁴⁸⁴ reorganization he had been a director, and his dealings with that institution were always satisfactory.

For a few years before his decease, he, with certain others, were makers of a note held by a finance company, and !at each maturity date he renewed it promptly, and often called it to the attention of some of the comakers, the last renewal being only a few days prior to his death. In March, 19.80, testator made a will, in which he bequeathed somewhat larger amounts to certain of his relatives and also bequeathed to them certain jewelry, and left his residuary estate in trust. Therein the maximum provision made for his son was $250 during any one calendar month, plus the burial expenses of the son, and at the son’s death the remainder was bequeathed to certain of testator’s relatives. However, shortly before July 20th, 1984, testator declared he had sustained losses on various investments and he felt he should make a new will, but, before doing so, he desired to ascertain the exact condition of his son, who, it may be stated, had become insane at the time of his mother’s death in February, 1930, and was first taken to the Phipps Clinic in Baltimore, later to Sheppard and Enoch Pratt Hospital, thence to the hospital at Perry Point, and was later removed to a hospital at Northport, Long Island, the two last mentioned being government institutions.

Accordingly, testator hired a car and a driver, Mr. Has-son, to take him to Northport. His nurse accompanied them. The driver was unfamiliar with the route, and testator directed him through New York City, and thence to Northport, where, upon arrival, he found the doctor in' charge of his son and inquired as to the son’s condition, declaring “this is the object of my visit.” He stated that he was going to change his will when informed by the doctor that the son would never recover. They returned to Port Deposit, and shortly thereafter he had his attorney, Mr. Hecht, call to his home, where he gave detailed instructions for the preparation of the .will here attacked, and a few days later, when it had been prepared, he considered it carefully and signed it in the presence ⁴⁸⁵ of three witnesses selected by him, declaring it to be his last will and testament.

It would, therefore, appear, from what has been said concerning the situation of the testator on July 2,0th, 1984, that the disposition which he made of his estate is not necessarily unnatural, but entirely consistent with a purpose that his estate should first be subjected to caring for his lunatic son adequately for the remainder of his life, the balance, if any, to go to one of testator’s relatives. In his opening statement to the jury, counsel for appellee said that in 1928 the testator became “violently insane,” whereupon appellants’ counsel objected and was overruled. To this action the first exception was taken. Appellants urge that this remark so prejudiced the jury as to constitute reversible error, but with this contention we do not agree.

Counsel making the statement was an officer of the court, who had a right to assume that he knew what he could prove and would be in position to show that the insanity referred to as existing in 1928 was of a permanent character. Indeed, unless he proved its permanency, testimony relating thereto would have been inadmissible, and it is difficult to perceive how, under the circumstances, the court could have ruled otherwise, and equally hard to understand how a juror of average intelligence would have been prejudiced or misled by the remark. For that matter such a statement, unless supported by proof satisfactory to the jury, might well have injured appellee. Exceptions 2 to 8, inclusive, were taken to the court’s action in permitting certain questions to be asked Dr. Irving J. Spear, a psychiatrist and specialist on nervous and mental diseases.

The only time Dr. Spear saw testator was early in June, 1928, after his commitment to Laurel Sanitarium, before his thyroid trouble was corrected. As a result of an examination then made by him, he was permitted to state that on that occasion the patient was demented, crying and wringing his hands, that his blood pressure at that time was 185 over 105, ⁴⁸⁶ and he had hardening of the arteries, and was suffering from arterio-sclerosis, had a heart murmur, and this condition was progressive. Notwithstanding this, he stated that he endeavored to suggest some treatment which would arrest his disease. He was also permitted to give his prognosis made in June, 1928, which was in effect that the patient would never improve mentally.

As said by this court in Gesell v. Baugher, 100 Md. 677 , at page 687, 60 A. 481, 484 , “The presumption of the law being in favor of sanity and testamentary capacity, the evidence to support a caveat on the issue of insanity must ordinarily tend to show either that the testator was of unsound mind at the time of the execution of the will, or that he was affected with permanent insanity prior to its execution, in which latter case the burden of proof of capacity is shifted to the caveatee. Taylor v. Creswell, 45 Md. 430 ; Higgins v. Carlton, 28 Md. 115 ; Tyson v. Tyson, 37 Md. 582 ; Davis v. Calvert, 5 G. & J. 300 .” See also Willis v. Willis, 171 Md. 144 , 188 A. 217 , and cases there cited; Jarman on Wills (5th Ed.), p. 50. There is nothing in Dr. Spear’s testimony to justify the conclusion that testator’s heart murmur, blood pressure, or arteriosclerosis in 1928 were unusual for one of his age, nor that his mental condition at that time was attributable to those factors. Admittedly his mentality was then impaired, but subsequent events demonstrated that this was not permanent in character.

Therefore, his prognosis was, under the circumstances, without evidential value, and this is also true as to his opinion concerning testator’s mental capacity at the same period. Furthermore, his opinion that Acker’s condition, as then found, was progressive, must yield to actual facts which show that subsequently testator’s mentality was restored. George MeCool, a lay witness, produced by plaintiff, was a salesman for the Standard Oil Company. He first met testator in 1932 and saw him again in 1933.

On both occasions he attempted to induce testator to sign a contract for fuel oil, but his efforts were unsuccessful. He stated that “he was talking about the oil and