Arbogast, Exec. v. MacMillan

Horney, J., delivered the opinion of the Court. In this caveat proceeding the appellant, John E. Arbogast, individually and as executor of the estate of George L. Arbogast, deceased, was the caveatee or defendant below, and Cleona MacMillan, Virginia Finn and George Ross Arbogast were the caveators or plaintiffs. Three issues pertaining to the last will and testament of the deceased—the factum of the will, undue influence and mental capacity—were framed by the Orphans Court of Allegany County and sent to the Circuit Court for Allegany County for trial by a jury. At the trial the lower court directed a verdict for the caveatee as to the factum of the will but refused to grant motions for directed verdicts in favor of the caveatee on the issues of undue influence and mental capacity, at the close of the caveators’ case, and again at the conclusion of the whole case.

The verdicts of the jury on both of the issues submitted to it were in favor of the caveators to the effect that the will was procured by undue influence and that the testator lacked mental capacity ⁵¹⁹ to make a will. When the motions of the caveatee for a judgment n.o.v., or, in the alternative, for a new trial, were overruled by the trial court, the caveatee appealed from the verdicts which had been allowed to stand. After the death of his second wife on June 13, 1956, the testator continued to live in his home on Crawford Street in Cumberland. Shortly thereafter, when the testator stated to a friend [James G. Stevenson] that he wanted his son [John, the caveatee] to have the home at his death, the friend suggested that the testator should make a will, whereupon he went alone to the office of his attorney [Estel C. Kelley] where the will was drawn and executed in July of 1956, and, later, was deposited in the office of the Register of Wills for safekeeping.

On January 1, 1957, at the request of the testator, the caveatee and his wife moved into the home of the testator in order to take care of him. Soon thereafter, the State Roads Commission took the Crawford Street property for highway use and the testator bought a home on South Street, where the three of them resumed living together. The testator took the upstairs for his quarters and the caveatee and his wife occupied the downstairs. The testator usually ate downstairs, but, at his request, his meals would be taken to him, or, if he wanted to do so, he prepared something to eat in his apartment kitchen.

The caveatee and his wife claim that they looked after the needs of the testator and took care of his business affairs, and that he came and went as he wished. That they took proper care of his physical needs was disputed by the caveators, who claim that the testator was neglected and mistreated, and that one of the caveators [Cleona] had to look after him and see that he was properly fed. On April 25, 1958, the testator became ill and was sent to the hospital by his family doctor, who referred the patient to an urologist [Dr. Howard E. Tolson], He left the hospital on June 5, 1958, with an inlying catheter and was instructed to return every two weeks for further treatments and to have the catheter changed, but he neglected or refused to do so. Although he had a number of urinary and arterial diseases or abnormal conditions, commonly called kidney trouble ⁵²⁰ and hardening of the arteries, he was not, however, completely incapacitated.

From July 9 to 21, 1958, the testator was hospitalized again. Thereafter he was seen by the urologist as an outpatient at the hospital on August 6, 1958, and possibly again in October of 1958, but the testator did not thereafter visit the hospital as an outpatient. But during December of 1958 and the first part of January in 1959, the testator saw and talked with neighbors and friends of long standing and appeared to be normal. However, on January 22, 1959, he lapsed into a coma and died on February 6, 1959, in his eighty-first year, without ever having regained consciousness.

Sometime around the early part of December in 1958, the testator saw the friend who had advised him to execute the original will. On this occasion the friend pointed out that since he no longer owned the Crawford Street property, the testator should so revise his will as to substitute the South Street property for the property previously devised to the caveatee. It was for this purpose that the testator requested the caveatee [John] to take him to the office of the attorney. The matter of the execution of a new will was discussed with the draftsman out of the presence of the caveatee, and when it had been prepared, the testator returned to the office of his attorney and executed the will on December 12, 1958.

The original will was withdrawn from the office of the Register and delivered to the testator, and was apparently destroyed. The probated will revealed that the testator had devised his South Street home to the caveatee and had bequeathed his personal estate to the caveators. He had also appointed the caveatee as the executor. There was proof that no change other than the substitution of the last home for the first had been made in the second will.

But this fact was disputed by one of the caveators [Virginia] who claimed that the first will, except for several articles of personalty bequeathed to the cáveatee [John], provided that the estate was to be divided between the four children. On this appeal the real questions are whether the issues of (i) undue influence and (ii) mental capacity should have been submitted to the jury. We shall consider each issue ⁵²¹ separately and, in so doing, shall relate such additional testimony as may be necessary. (i).

Undue Influence. It has been held by this Court that in order to justify the submission of an issue of undue influence to a jury it is necessary “to find in the record some evidence from which it might be rationally inferred that at the time of making his will the testator was under the domination of an influence which prevented the exercise of his own judgment” and that “[t]he influence which the law condemns as undue is that which is operative to such a degree as to amount in effect to coercion.” White v. Bramble, 124 Md. 395, 400 , 92 Atl. 763, 765 (1914). What then is the state of the record in this case? A careful reading of the entire record fails to disclose that any influence—either undue or legitimate—was practiced on the testator by the caveatee.

The caveators seem to suggest that because the caveatee lived with his father without paying rent (though he paid some of the taxes, utility charges and other household expenses) ; because he looked after the physical needs of his father; because he attended to the business affairs of his father; and because, at the request of his father, he took him to execute a new will, and then arranged to withdraw the old one from safekeeping, that he had in some manner thereby exercised undue influence on the testator. Clearly such facts fall far short of amounting to coercion. Furthermore, there was no showing that the son dominated his father, took away his free agency or prevented the exercise of his own judgment and choice. See Kennedy v. Kennedy, 124 Md. 38 , 91 Atl. 759 (1914); Sellers v. Qualls, 206 Md. 58, 110 A. 2d 73 (1954).

On the contrary, these facts do not even raise a conjecture or a suspicious circumstance, and clearly did not justify submission of the issue of undue influence to the jury. Kuenne v. Kuenne, 219 Md. 101 , 148 A. 2d 448 (1959). Moreover, even if we assume that the son did in fact have the power to overbear the will of his father, there is absolutely no evidence that the son ever undertook to exercise it. See Woodruff v. Linthicum, 158 Md. 603, 609 , 149 Atl. 454, 456 (1930).

Since there was no evidence of any undue influence, the trial court should have granted the caveatee’s motion for a directed verdict on the issue of undue influence. ⁵²² (ii). Mental Capacity. On an appeal to this Court from the refusal of a motion for a directed verdict for the caveatee on an issue of mental capacity, it is our duty to examine the evidence and determine whether from it a jury might reasonably have concluded that the testator was mentally incompetent to execute a valid will. Lyon v. Townsend, 124 Md. 163, 176 , 19 Atl. 704, 708 (1914).

What then does the evidence show as to the mental incapacity of the testator? The two lay witnesess for the caveators (both of whom— Cleona and Virginia—were parties to the caveat proceeding), in an effort to demonstrate competency to express an opinion as to the testator’s lack of mental capacity, testified as to certain physical infirmities and characteristic oddities of the testator, but, upon objection by the caveatee, the witnesses were properly precluded—since they could not qualify—from expressing an opinion as to the mental capacity of the testator on the date the will was executed. West v. Fidelity-Balto. Bank, 219 Md. 258, 147 A. 2d 859 (1959).

The' urologist was the only other witness called to testify as to the mental capacity of the testator. Obviously, the witness was not called as an expert who must first qualify since he did not hear all of the testimony and no attempt was made to have him answer hypothetical questions, but, over the objection of the caveatee, he was permitted to testify as an “attending physician.” Specifically,