Callis v. Thomas

²³¹ Bond, C. J., delivered the opinion of the Court. The decree appealed from is one setting aside a deed of trust made for the benefit of the grantor for life, with remainders in the principal to remote relatives and friends and a church, to the exclusion of his wife and children. The children are complainants in a bill brought after the death of the grantor, and also after the death of his wife, to set-aside the deed; and they contend that the grantor was at the time of execution mentally incapable of making such a deed, and that its execution was procured by undue influence exerted upon him by the grantees. The deed was executed on January 23rd, 1923, and there was testimony of unusual conduct on the grantor’s part in 1920 and shortly before, confinement in a hospital for the insane for the first six months of 1920, and some unusual conduct after 1920; and, on the other hand, testimony of actual management of business transactions in a capable manner in 1921 and 1922, sales of property in conjunction with the wife, and a division of property and separation agreement made with her in 1922.

On the testimony in the case this court has come to the conclusion that the averments of incompetency and undue influence have not been proved. Benjamin F. Thomas, Sr., the grantor, was a farmer, and from 1906 to 1920 had lived with his family on a farm near Brooklyn, in Anne Arundel Oounty. In 1915 he made a will, which he never later destroyed or expressly revoked, giving his property to his wife for life with remainders to his children. And testimony of friends was to the effect that the father, mother, and children all lived together congenially, up to this time, at least.

In 1911, Thomas suffered a stroke of paralysis, from which he seems to have recovered physically, but there was some testimony of a change in attitude toward his wife and children, and testimony of talkativeness, dwelling on trifles, and a disposition to tell his troubles and ask advice of any one, so that men avoided talking with him. Some of the testimony seems to show that similar conduct was observable before 1911, to some extent. And there was testimony of persons who saw him frequently ²³² during the last two years of his life that he talked much of trifling things, not sensibly, that he carried about with him a collection of newspaper clippings, and tried to engage others in conversation on them, that he entered too freely in private rooms in houses where he boarded, and took his choice of family chairs, and that he made a practice of attending funerals, not always of relatives or friends, and when he did attend was heedlessly noisy and had to be quieted for the services. All testimony of the wife and children as to actions or statements of the grantor was excluded under the provisions of article 35, section 3, of the Code, as was also the testimony of the grantees on their side to actions and statements later, and the effect of this, of course, has been to exclude from the case the testimony of those who have knowledge of most of the facts bearing on the questions presented.

We cannot, of course, conjecture what this testimony might have proved or failed to prove. And taking the testimony as it stands, while it naturally raises a question of competency, we do not see that it shows peculiar conduct which we might say was inconsistent with competency; it does not appear to be such as cannot be met with in competent men. Common experience teaches us that a considerable degree of peculiarity, eccentricity, unreasonableness, pettiness, or deviation from ordinary, normal conduct, may be associated with sufficient ability to make an ordinary deed, contract or gift, and sometimes with extraordinary ability. And this fact the law recognizes fully, although there is often a tendency to lose sight of it in court.

As Judge Pearce said in Jones v. Collins, 94 Md. 403, 409 , in considering an instruction prayed on testamentary capacity, “the test is not whether the testator is ‘entirely sane/ but whether he is ‘of sound and disposing mind, and capable of executing a valid deed or contract.’ ” There may be a difference. Brashears v. Orme, 93 Md. 442, 449 ; Wood v. Hankey, 133 Md. 389, 394 ; Mecutchen v. Gigous, 150 Md. 79, 87 . The fact that after such a long life without serious family dissension — so far as appears now- — the man fell out with all his family, is another fact to be weighed against competency, for ²³³ habit if not affection usually holds a family of normal people together at that stage; but tbe evidence is not sufficient to enable a court to estimate the weight of this. Possibly the father may have had some grievance, and that possibility must be allowed for.

He himself complained of his family on different grounds, some of them seeming petty and unreasonable, and all referring to, some only and not all of those with whom he quarreled; in the hospital he said that he had nothing to do with his wife for years because of a dispute over the method of milking a cow, and again complained that his daughter hid his blanket. Later, long after leaving the hospital, he said friction had arisen from the insistence of his sons upon taking charge of the farm and running it on modern methods. In reviewing these complaints, trifling as they sound, we have to bear in mind a common capacity in sane people, especially people living more or less shut-in lives, to magnify trifles and to make petty complaints in family quarrels. The opinions expressed by physicians who examined the man for his competency are much more important.

In December, 1920, Dr. Brawshaw of Anne Arundel County took the grantor to be examined by Dr. Spear of Baltimore, an alienist, and, upon the history given and a comparatively slight personal examination permitted, Dr. Spear certified that the man was incompetent and should he confined, and, upon a like certificate from Dr. Herring, Thomas was taken to Spring Grove State Hospital for the insane. No evidence is given of Dr. Herring’s examination. Dr. Spear was permitted to make his examination of the man only on the street, as the man was sitting in an automobile, because the man would not go into the doctor’s office. The doctor found him suffering with hardened arteries, seventy-one years old, and expressing antipathy to his family; and, putting these facts together with the history given, but which was excluded from the trial as hearsay evidence, Dr. Spear concluded the man had become insane, or sustained a senile breakdown, as a result of the processes of age, manifested physically in arterio-sclerosis.

At the hospital ²³⁴ the superintendent, Dr. Wade, and the admitting physician, Dr. Garrett, made more thorough examinations and came to the same conclusion as that of Dr. Spear. More specifically Dr. Wade testified that they found Thomas suffering from a senile psychosis, paranoid type, delusions and hallucinations, with well-marked arterio-sclerosis. In addition to the history given hiín, Dr. Wade observed for himself a loss of memory for recent occurrences, an antagonism to his family, based by the patient on the trifling or petty grounds already recited. Dr. Wade added that the man blamed his wife and children for his confinement, and that was the subject of his conversation in the hospital.

Dr. Garrett’s examination, like Dr. Spear’s, was based upon more limited personal observations and more largely upon the history of the case, which was excluded from the evidence. It being the opinion of these three physicians that Thomas was incompetent when he entered and remained in the hospital, in 1920 and 1921, they were asked their opinion further on the probabilities as to the condition with which this case is finally concerned, the condition in January, 1923, and all agreed in an opinion that the condition they observed was permanent in its nature and progressive, and that the grantor would not possess the requisite capacity at the time of executing the deed in 1923. As one of the physicians expressed it, the condition was the result of age, and the man could not grow younger. Dr. Spear expressed a readiness to base this conclusion on his examination of the man irrespective of the history given.

An expert called by the defense, Dr. Taneyhill, expressed an opinion that nothing in the sclerotic condition described in the evidence or in the other symptoms mentioned in court would differentiate this man from many other men of the same age, or justify a conclusion that there was a permanent, progressive mental impairment, that, on the other hand, the condition described might improve, as such a condition often does. In June, 1921, upon being; brought before the court on a writ of habeas corpus, sued out by Edward F. Callis, Thomas was released after a conference between the court and Dr. ²³⁵ Wade, but without any adjudication upon the question of insanity. While at the hospital, he was one of the patients allowed to move about, aud he visited freely at the house of Miss Bertha McFee, one of the beneficiaries under the deed of 1923, in Catonsville, near which the hospital is situated, and there he met the