Carney, Adm'r v. Kosko

Pkbscott, J., delivered the opinion of the Court. The sole question involved herein is whether the paper writing executed by Mary Schlutter on December 30, 1954, was a valid codicil to her last will and testament. On August 2, 1940, Miss Schlutter, a spinster, executed a will in which she left her entire estate in trust during the lives of her two brothers for their benefit; and upon the death of the survivor of them, the corpus was to be divided among nine charitable corporations. Both brothers having died, she executed a codicil on December 10, 1946, in which she revoked the trust provisions, provided a specific bequest of $75,000' to a cousin, and directed that the residue be distributed among the nine charitable corporations above mentioned.

On April 14, 1952, a second codicil was made, the effect of which was to revoke the first codicil and reinstate the provisions of the will of August 2, 1940. All of these instruments were formally and expertly drawn, obviously the products of professional hands. Thereafter, on March 16, 1954, certain litigation between Miss Schlutter and her cousin resulted in a decree of the Circuit Court of Baltimore City in which (a) the cousin’s petition for the appointment of a committee for her was denied; (b) her assets were vested in Elmer H. Miller, trustee, during her lifetime; and (c) upon her death part of the assets of the trust were “to be turned over, conveyed, deeded and delivered to the executor of the last will and testament of Mary Schlutter” and the other part was to be given to the cousin. By decree dated April 12, 1954, Eldridge Young and Edward S. Panetti were substituted as trustees.

Thereafter Mr. Young died and Mr. Panetti became sole trustee. This was the status of her estate at the time of her death on March 4, 1960. For some eight years prior thereto, she had been living in a large home, owned by her, with the appellee and appellee’s husband. Miss Schlutter was more or less an invalid.

The appellee was her nurse, companion and housekeeper; the hus ¹¹⁵ band acted as a handyman. For their services, they were paid $55 a week by the trustee, Mr. Panetti. On December 30, 1954, Miss Schlutter wrote, in longhand, the following document (Exhibit 1) : “December 30, 1954. Mr. Pannete Please 4000-give 1000 dollars to to my friend and nurse J-cni-e- Jennie Kosko Mary Schlutter 2220 Erdman Ave 2220 Witness: Marie Gebhardt Noll Bertha Struven Doeller” On the same day she also wrote in longhand (Exhibit 2) : “December 30, 1954, Mr Pannete .

Please give 1000 dollars Please give one thousand to my friend and nurse Jennie Kosko after my death Miss Schlutter 2220 Erdman Avenue” The paper writings were delivered to Jennie Kosko. She testified she showed them to Mr. Panetti shortly thereafter. He gave her no money because she was not supposed to get any until after Miss Schlutter’s death, but he told her to “hold on to [them].” Shortly after Miss Schlutter’s demise, she showed one of the writings to Mr. Miller, who was the executor. This was verified by Mr. Miller.

He took a copy of it. She knew Mr. Miller was a lawyer, and “thought he would do something about it.” This caused a delay in filing the paper, but, when Mr. Miller failed to do anything, she turned it over to her present lawyer and he “took care of it from then on until today.” The paper writings were not actually filed until slightly over a year after Miss Schlutter’s death; however, the settlement of her estate had not then been completed. ¹¹⁶ The paper writings were propounded to the Orphans’ Court as a joint codicil to Miss Schlutter’s will and the two previous codicils, which had been admitted to probate. The executor denied that the papers were valid testamentary dispositions of property, and a hearing on the issue thus raised was held by the Orphans’ Court. Jennie Kosko testified to her long and close association with Miss Schlutter, and the work that she and her husband had done for her.

The paper writings were written by Miss Schlutter. It was her understanding that she was to get $1000, not $2000, upon Miss Schlutter’s death. Miss Schlutter wrote Exhibit 1 first, and when it was realized that she had not provided therein that