Davis v. Denny

Schmucker, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore City dismissing a caveat filed to the will of the late Sarah A. C. Seaver by the appellants who are her next of kin. The petition of the caveators alleged fraud and undue influence in procuring the making of the will, and also a want of testamentary capacity on the part of the testatrix at the ³⁹² time of its execution, together with an ignorance by her of its contents. Much testimony was taken in the case, but it will be necessary for the purposes of this opinion to refer only to that portion of it bearing upon the issue of the testamentary capacity of the testatrix at fhe time of making her will, as we do not think that the charges of fraud and undue influence made in the caveat are sustained by the evidence.

Having thus but the one issue to determine it will simplify the .discussion to first state' the law applicable to that issue. This Court has frequently been called upon to define the testamentary capacity which a testator ■ is required to possess in order to make a valid will. Its decisions upon that subject have uniformily held, with slightly varying forms of expression, that such capacity consists in the possession by the testator at the time of making his will of a full understanding of the nature of the business in which he is engaged; a recollection of the property of which he intends to dispose and the persons to whom he means to give it; and also an understanding of the manner in which he in fact disposes of it, and of the relative claims of the different persons who are or should be the objects of his bounty. Davis v. Calvert, 5 G. & J. 301 ; Colvin v. Warford, 20 Md. 367 , 388; Higgins v. Carlton, 28 Md. 125 ; McElwee v. Ferguson, 43 Md. 479 ; Brown v. Ward, 53 Md. 382 .

Sanity and mental capacity are presumed by the law to exist in reference to making wills as well as to other transactions and the burden of proof is upon those who allege their non existence. Brown v. Ward, supra ; Higgins v. Carlton, supra; Tyson v. Tyson, 37 Md. 582 . There is in the present case no suggestion of want of capacity on the face of the will. It is true it gives the entire estate to strangers and does not mention the relatives or next of kin of the testatrix, but the record shows that she had survived all of her immediate family and that her only relatives were in the collateral line and lived at locations remote from her and that she had seen none of them for more than twenty years and had rarely communicated with any of them by letter. ³⁹³ On the other hand it appears that one of her principal legatees had been her faithful nurse and companion, and three of the others were not only her friends and neighbors but were the descendants of a gentleman who had been a most generous benefactor of the testatrix and her family in a time of great distress.

Despite, however, the reasonable character of the provisions of the will itself, a careful examination of the evidence appearing in the record has led us to the conclusion that the mental power, and especially the memory of the testatrix, had become so enfeebled and impaired when she made her will that she had no adequate understanding of the business about which she was then engaged, or recollection of the property which she intended to dispose of, and was therefore not competent to make a valid will. She was in her eighty-second year when she made her will and was the survivor of three children, one brother and two sisters, all of whom remained unmarried. Prior to 1868 the brother William, purchased a leasehold house, No. 12 N. Calhoun St. in Baltimore City as a home for his mother and two sisters, and they resided in it as long as they lived. The mother died in 1868, one sister, Martha, died in 1888, the brother died in 1896, and last of all the testatrix died in 1900.

William, who resided near Newark, in New Jersey, sent to the testatrix as long as he lived a small weekly allowance for her support. She had originally no property of her own but she became entitled by way of distribution to the Calhoun St. house on the death of her mother and sister and brother, and she also received an estate worth about $15,000 from her brother at his death in 1896. The property which she derived from her brother consisted of a farm in New Jersey which was subject to a mortgage. Mr. Condit, a lawyer residing in New Jersey, who had been the friend and legal adviser of the brother during his life and thereafter became the adviser’and agent of the testatrix, sold the farm for her after her brother’s death.

On December 15th, 1897, about one year prior to the making by the testatrix of ³⁹⁴ her will, Mr. Condit wrote her a letter, which appears in the record, informing her that he had sold the farm to a Mr. Hartsorn for $40,000; for $21,000 of which Hartsorn had assumed the incumbrance already upon the property, and he had given a purchase-money mortgage for $15,000, and had paid the balance in cash. In the same letter Mr. Condit informed her that he w'ould soon come to Baltimore and get her views as to the disposition to be made of the proceeds of sale. He came to Baltimore to see her before she made her will and brought her $3,000 in cash which she deposited in a Savings Bank, and a business correspondence was kept up between them until her death, he sending to her currently an income of $700 01^$800 yielded by the unpaid balance of purchase-money for the farm, and she executing the deed conveying the farm to the purchaser. She must therefore have been fully informed as to the nature and extent of her property in New Jersey not long before she made her will, and she would have known exactly what it was when she executed that instrument if her mind had been vigorous enough to retain the information.

After her death the balance then remaining due on the mortgage was collected by Condit and remitted to the appellees as executors, who received from that source the net amount of $10,000.. It thus appears that at the time of making her will the testatrix owned the Calhoun St. house, which afterwards sold for $1,200, the $3,000 in the Savings Bank and a balance of at least $10,000 of the purchase money mortgage on the Jersey farm. When William died his body was brought to Baltimore and buried from the Calhoun St. house, as that of the sister Martha had been, and the testatrix was present at the funerals of both the brother and sister. Thereafter she lived alone in the .Calhoun St. house until her own death.

A colored servant, Cephas Johnson, came daily to the house and attended to certain of her domestic wants, and a young woman, Minnie Friedley, always spent the night and part of the day with her. She was visited from time to time by her lady friends and up to the time of making her will she, although somewhat of a ³⁹⁵ recluse, went about the city occasionally on errands of business or pleasure. Those who knew her personally, agreed that she was a person of more than ordinary intelligence and refinement, and was quite agreeable and entertaining in conversation, and some of them thought her very acute in reference to money matters. Three classes of witnesses testified as to the testamentary capacity of the testatrix at the time she made her will.

They were first non-expert witnesses, consisting of friends and neighbors and dealers from whom she purchased her domestic supplies and to one of whom she paid a ground rent on her house. The larger part of these persons thought her capable of executing a valid deed or contract, but some of them testified that they had noticed a decided failure of her powers after the death of her brother, and thought her incapable of making a valid deed or contract. We do not review this testimony in detail because of the inconclusive character of such evidence, and because we do not rest our conclusion upon these opinions, but upon facts hereafter to be stated. There is, however, a fact of importance to which quite a number of these witnesses testified, and that is that after the brother’s death the testatrix frequently spoke of both him and of her deceased sister as still alive.

On several occasions she sent meals upstairs for her sister saying that she was in the house, although she had in fact been dead for some years, and on December 23rd, 1898, not three weeks after making her will, she wrote a long and affectionate letter to her brother, as if he were still alive. This failure on the part of the testatrix to remember the death of her brother and sister was spoken of in the argument of the case as a delusion, and the law applicable to delusions was much discussed, but we do not think her state of mind in that respect amounted to that persistent or incorrigible belief in facts having no real existence, which is the essential element of a delusion, for the witnesses almost always said that when you reminded her that her brother or sister, as the case might be, had been buried from her house and she had attended the ³⁹⁶ funeral, her memory would be refreshed and she w'ould reply, I know he is dead, or I remember she is dead, or would make some similar answer. A delusion is primarily the creation of a perverted or diseased imagination, but her difficulty was rather a failure, for the time being, of her memory. Medical experts, of whom there were three, constituted the second class of the witnesses.

Dr. Weiner, who was her regular physician for thirty years and saw h$r frequently up to the time of her death, testified distinctly that she was not of sound mind when she made her will and he doubted very much if she was at that time competent to make it. Dr. Kneass, who attended her during July, August and September, 1899, which was from seven to ten months after she made her will, noticed nothing peculiar about her when he saw her, except that failure of memory which sometimes affects aged persons who are otherwise bright- and intelligent. Dr. John Wood, who was not personally acquainted with her, had a conversation of about fifteen minutes duration with her a year after she made her will and noticed no impairment of her faculties except a failure of memory as to recent events. The persons present at the execution of the will, including the attesting witnesses, form the third class of witnesses.

Of these Mr. Schumacker and Mr. Smith, the druggist, two of the attesting witnesses and also Mr. and Mrs. Lyons and Mr. Denny, who were present at the making of the will, all testified that in their opinion the testatrix was of sound mind and capable of making a valid deed or contract when she made the will. Of these witnesses Mr. Schumacher and Mrs. Lyons had known her for many years and had frequently had interviews with her of a social nature. Mr. Lyons had also known her for some years but had not seen her for a year or two prior to the making of the will. Mr. Smith had no intimate acquaintance with her, and Mr. Denny had never seen her before.

The testimony of Yates Walsh, the other attesting witness, who was absent from the State when he testified, was taken under a Commission. He had known the testatrix for twenty-five years and during the last four or five years saw her every ³⁹⁷ few days. Both he and Mr. Schumacher differ from the other witnesses as to a variety of details incident to the execution of the will, but Walsh differs essentially from them in his estimate of the mental capacity of the testatrix. He placed a low estimate upon her mental condition and distinctly testified that when the will was made she was not capable of making a valid deed or contract.

He further testified that on the morning after the execution of the will the testatrix asked