Cook v. Hollyday

Collins, J., delivered the opinion of the Court. This is an appeal by Fillmore Cook, executor of the estate of Florence Evelyn Cook, deceased, from the verdict of the jury and the decision and determination on the issues submitted, and from the overruling and refusal of a motion for judgment n.o.v. (notwithstanding the verdict), in a case of caveat filed to the will of Florence Evelyn Cook by her daughter, Audrey Louise Hollyday. The testatrix in the will in question devised all her property to her daughter, Audrey Louise Hollyday, subject to Items II and III of the will. She named her brother-in-law, Fillmore Cook, as executor without bond.

For a proper consideration of the case it is necessary to quote Items II and III, which follow: “Item II. Whereas, upon good and valuable considerations, I have heretofore entered into an agreement with my brother-in-law, Fillmore Cook, on behalf of himself, his wife, Catherine E. Cook, and his daughter, Vivian Dorothy Cook, their heirs, personal representatives and assigns, whereby I have agreed that before my undivided one-half right, title, interest and estate in the fee simple property, known as the Aurora Theatre lot and improvements, Nos. 7 and 9 East North Avenue, Baltimore, Maryland, and also my forty-nine shares of the Capital Stock of the Paradise Amusement Company, a body corporate of the State of Maryland, or any part, right, title, interest, estate or share thereof, shall be sold, mortgaged, otherwise disposed of, or enure to others thereto or therein, or be offered for sale, mortgage, other disposition thereof or any enurement to others thereto or therein occur in any manner whatsoever, except as to the devise ⁶⁵⁹ and bequest thereof to my daughter, Audrey Louise Holly-day, made in this, my Last Will and Testament, the same shall first be offered for sale to the said Fillmore Cook, or case of his death, to his widow, Catherine E. Cook, or in case of the death of both the said Fillmore Cook and Catherine E. Cook, to their daughter, Vivian Dorothy Cook, their heirs, personal representatives or assigns, at and for the price of twenty-thousand ($20,000.00) Dollars, less one-half of the balance of any mortgage indebtedness and accrued interest remaining unpaid and accruing under any mortgage existing upon the entire fee simple estate in said property Nos-. 7 and 9 East North Avenue, and that no sale, mortgage, other disposition or enurement to another or others thereof, shall be offered, negotiated, made, consummated or enurement be effective until the said Fillmore Cook, Catherine E. Cook, or Vivian Dorothy Cook, as the case or lives may be as aforesaid, shall have refused to purchase as aforesaid or shall have renounced his or her rights under said agreement by a writing under his or her hand and seal, duly witnessed and acknowledged according to the law governing the execution of Deeds, and I now charge my undivided right, title, interest and estate in said fee simple property and my said forty-nine shares of the Capital Stock of The Paradise Amusement Company in the devises and bequests hereinafter set forth with the aforementioned terms, provisions, and stipulations of said Agreement.” (Italics supplied here.) “Item III. After the payments enumerated in Item I hereof, and subject to the terms, provisions and stipulations of the agreement set forth in Item II hereof, I give, devise and bequeath all my estate, property and effects, real, personal and mixed, in possession, reversion, remainder and expectancy, and wheresoever situated unto my daughter, Audrey Louise Hollyday.” The issues submitted to the jury and the answers of the jury to those issues follow: “1- Were the contents of said paper-writing, dated the 18th of January, 1943, purporting to be the Last Will ⁶⁶⁰ and Testament of Florence Evelyn Cook, read to or by the Testator, or known to her at or before the time of the alleged execution thereof?” A. Under the instruction of the Court, “Yes.” “2- Was the execution of said paper-writing, dated the 18th day of January, 1943, purporting to be the Last Will and Testament of Florence Evelyn Cook, procured by undue influence exercised and practiced upon her?” A. “Yes.” “3- Was the said paper-writing, dated the 18th day of January, 1943, purporting to be the Last Will and Testament of the said Florence Evelyn Cook, executed by her when she was of sound and disposing mind and capable of executing a valid deed or contract?” A. “No.” “4- Was the said paper-writing, dated January 18th, 1943, and purporting to be the Last Will and Testament of Florence Evelyn Cook, deceased, procured by fraud and misrepresentation exercised and practiced upon her at the time of the execution of said paper-writing?” A. “Yes.” The appellant testified that previous to February 24, 1933, Mrs. Lula H. Cook owned a one-third interest in the properties, Nos. 7 and 9 East North Avenue, the real estate, the bowling alleys, and thirty-three and one-third shares, a one-third interest, in the Paradise Amusement Company. He .owned a one-third interest in the same properties and stock and the remaining one-third interest was owned by the testatrix, who inherited it from her husband, the brother of the appellant.

This one-third interest of Lula H. Cook was offered to him for the price of $5,333.33 (one-third of $40,000, less one-third of the then balance on the mortgage and the thirty-three and ■one-third shares of stock at $10 per share) and not to the testatrix. If he had acquired it in his own right, the testatrix would have then owned a one-third interest in'the properties and stock and he would have owned a two-thirds interest. He testified that he and the testatrix then made a verbal agreement. He said, “The agreement was that Mrs. Florence Evelyn Cook and myself would ⁶⁶¹ take over the interest of Mrs. Lula H. Cook in the property numbers 7 and 9 East North Avenue, the real estate, the bowling alleys, and the thirty-three and one-third shares of the Paradise Amusement Company in our joint names and would then, each of us, transfer to my wife one of our shares of stock in the Paradise Amusement Company, which would leave fprty-nine shares in my name and forty-nine shares in the name of Mrs. Florence Evelyn Cook, and two shares in the name of Catherine E. Cook, my wife, and that was made for the purpose of giving my wife and myself the controlling interest in the corporation, the Paradise Amusement Company. “Q. Now, was that the whole agreement?

A. No, sir. “Q. What else? A. That is part of it. “Q. Go ahead? A. That Mrs. Florence Evelyn Cook would not transfer this property—her interest in the real estate, in the bowling alleys, and her forty-nine shares of stock to anyone except myself, my wife, or my daughter, at the same price at which it had been sold by the rest of the family to Mrs. Lula H. Cook, to my brother, Mr. John B. Cook, and myself, which was at the rate of forty-thousand dollars, and that upon the death of her daughter the property would be transferred to either of us, myself, my wife, or my daughter, at the same figure, forty thousand dollars, and that no sale or offer of sale should be made to anyone except myself, if living, or my wife or daughter if I had been deceased.” He further testified that at the time this verbal agreement was made he had been a practicing attorney for thirty-one years, was attorney for Florence Evelyn Cook and had been attorney for her prior to that time and since, and had prepared the will in question. He further stated that after the agreement was made Mrs. Lula H. Cook’s interest was conveyed on February 24, 1933, in a deed drawn by him.

The testatrix and he then each sold one share of stock to his wife, Catherine E. Cook, for $10 a share thereby giving Fillmore Cook and his wife a fifty-one percent interest in the corporation and leaving the testatrix with a forty-nine percent interest. ⁶⁶² that he ought to see her and as a result of that message he went to her home to see how she felt, talk to her, and see whether he could be of any assistance or service to her as they had always been very friendly, as friendly as two people could be. When he arrived she was suffering-some pain and he knew that she was ill. On the following day, Sunday, January 17, 1948, he again went to the testatrix’s home, proceeded to her bedroom on the second floor, and sat on the side of testatrix’s bed. At that time he said she was a very sick woman.

The caveatrix and daughter of the testatrix, Audrey Louise Hollyday, sat in a chair at the foot of the bed. The testatrix then said to him, “I want to make by Last Will and Testament.” He then asked her what provisions she desired to make. She stated that she wanted to leave her entire estate to her daughter. He said to her, “That would include the Aurora Theatre property, as well as the Highlandtown Post Office property and your personal and real estate, including this home.” The testatrix said, “Yes.” He said to her, “Is Audrey familiar with the terms of the contract that exists between you and I concerning the Aurora Theatre property and stock.” She said, “I don’t know whether she is thoroughly familiar.” He said, “Well, then, to make her thoroughly familiar would you mind telling her now in detail just what are the terms of our contract.” She said, “Yes, indeed,” and he said that “she proceeded to tell in her own words the terms of the contract which are as stated in the will.” When asked what the testatrix told.her daughter, he said, “Perhaps I can remember the exact—I cannot perhaps remember the exact words she used but she told her that when the one-third interest which had been owned by Mrs. Lula H. Cook in the Aurora Theatre, and Stock of the Paradise Amusement Company, was transferred to she and I, it had first been offered to me, and that in the kindness of my heart I invited her to come along with me in the ownership of that on.e-third interest, that two shares of stock were to be held by my wife, and she had ⁶⁶³ He further stated that on Saturday, January 16, 1943, his wife called him on the phone from testatrix’s home telling him that testatrix was seriously ill and she thought sold one share of stock to my wife and I sold one share of stock to my wife, so that I would have, with my wife, fifty-one shares, and the controlling interest, and that it had been agreed because of that she would not sell to anyone else except me, or my wife, or my daughter at any time, and when the sale would be made it would be at the same rate at which the property had been sold to us, (italics here), and at the same rate at which the property had been sold to the three of us prior thereto by the rest of the family, and that at the expiration of her death, of her daughter’s death, or the survivor, that that interest was then to be sold to me at that rate.

(Italics here.) “Q. Did she say anything about a contract or agreement from you to her? A. No, sir, there was no contrary agreement. That was the consideration for the agreement that she made with me, was the fact that I permitted her to come in, otherwise I would have had an entire two-thirds interest in the Aurora Theatre and sixty-six and two-thirds of the one hundred shares of outstanding stock and she would have had one-third only.” When later asked on cross-examination whether she said personal representatives, heirs and assigns, his answer was, “No, sir, she didn’t use those words.” He further said on cross-examination that upon the death of the testatrix’s daughter, Mrs. Hollyday, it would go to his heirs and personal representatives by purchase. When asked on cross-examination, “Suppose you, and your wife, and your daughter dies, what would become of Mrs. Florence Evelyn Cook’s share?” The appellant objected to this question.

It was overruled and an exception noted. As this was apparently a question as to appellant’s interpretation of the clause in the will, which he drew, we see no objection to its admission. He answered that it would have gone to the heirs of the last survivor, his daughter or heirs or personal representatives; personal represen ⁶⁶⁴ tatives in the case of stock and heirs in the case of real estate and that he did not give the same privilege of purchase which he had. The appellant further testified that, after the testatrix had explained to her daughter the terms of the contract, he asked her whether she thought it was proper for that to be embodied in the will, and she said, “Absolutely so.” He further stated that he prepared the will at his home that night and on Monday, January 18, 1948, the date the will was executed, he and his wife went to the testatrix’s home between 12:00 noon and 12:30 o’clock.

A Dr. Shamer was upstairs with the patient. He told Dr. Shamer, when he came down, that he had the will of Mrs. Cook, which she asked him to prepare, and he requested the doctor to be one of the witnesses. The doctor said that he did not have time to wait and, in answering a question from the appellant, stated that the testatrix was of sound and disposing mind and capable of executing a valid deed or contract and that her mind was absolutely clear. The appellant then went upstairs and told Mrs. Cook he had the will and would like her to read it all the way through.

He had drawn it in triplicate, two original copies and one office copy. After she had read the will entirely, with one copy in his hand, one in Audrey Holly-day’s hand, and one in the testatrix’s hand, he read the entire will to her from beginning to end and asked her if she completely understood it. She replied that everything was satisfactory to her. She was in bed at the time resting on her' left side.

He then called Dr. Wallenta, a minister, and Mrs. Key, a nurse, from the living room opposite the bedroom and they came in the bedroom, and the testatrix signed the will in their presence and the presence of the caveatrix, Audrey Louise Holly-day, who made no protest. Dr. Walenta and Mrs. Key signed as witnesses, at the request of the testatrix. The appellant left a copy of the will with the testatrix and took one original copy and the office copy with him. Florence Evelyn Cook died on January 31, 1943. ⁶⁶⁵ At the time of her death the testatrix was vice-president of the Paradise Amusement Company and had held that position since 1933.

The appellant had been president of the corporation since that time. The theatre, which occupied part of the property, had a seating capacity of about four hundred. The testatrix received a weekly salary of $40. At the time Mrs. Lula H. Cook’s interest was bought there was a $25,000 mortgage on the property, which, at the time of testatrix’s death, had been reduced to $18,500.

Before testatrix’s death, Mrs. Catherine E. Cook, the wife of the appellant, received a salary of $5 per week as secretary. After testatrix’s death the wife of the appellant took her place and received the same pay as Mrs. Florence Cook, $40 a week. The salary of the appellant was $100 a week. The rent from the property in dispute was $4,800 per year, of which amount $3,900 was paid by the Paradise Amusement Company.

As shown by the statement filed in the case, before the payment of salaries of officers of $7,540 and the rent of $3,900, the net profits of the Paradise Amusement Company for the year 1942 was $22,592.77. Therefore, at the time the testatrix executed the will in question the appellant was receiving in salary $100 per week, $5,200 a year, rent in the amount of $1,950, and his share of the net profit for the preceding year was $5,464.85, making total receipts to him for the preceding year of $12,614.85. His wife, Catherine E. Cook, received a salary of $260 a year as secretary and her share of the profits from the Paradise Amusement Company $223.06, making total receipts to appellant and his wife for the preceding year of $13,097.91. The testatrix received during that year salary of $2,080, rent of $1,950, and her share of the profits of the corporation were $5,464.86, making total