Fields v. Mersack

ROBERT M. BELL, Judge. This appeal by Marian G. Fields, appellant, from the judgment of the Circuit Court for Montgomery County resolving several motions pertaining to payment of counsel fees incurred in defending a caveat proceeding, presents a single question: Whether, pursuant to a caveat proceeding, a finding of undue influence prohibits the personal representative from seeking and obtaining payment, directly from the estate, of necessary expenses previously approved by the court, such as costs and attorneys’ fees, where it has not been found that the personal representative exercised or knew of such undue influence? We will affirm; however, we reject the invitation by Elaine B. Mersack, appellee, to adopt a per se rule. ⁶⁵¹ In order to understand fully the issue presented, it is necessary that we revisit, albeit briefly, the proceedings which were the subject of a prior appeal. See Mersack v. Fields, (unreported), No. 1399, September Term, 1988, filed May 2, 1989, cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989).

The facts giving rise to that appeal were as follows. Melvin D. Fields, the decedent, died testate, following a lengthy illness, on December 31, 1985. Appellant, his wife, offered a will, dated December 27, 1985, naming her as personal representative and sole beneficiary, for probate. Subsequently, appellee, the decedent’s daughter from a prior marriage, filed a petition to caveat the will, along with a will dated September 5, 1985 which named her personal representative and primary beneficiary.

Following trial, the sole issue presented to the jury for resolution was reflected in the following question: “Was the execution of the Last Will and Testament of Melvin D. Fields caused or procured by the undue influence of any person or persons?” The jury responded in the affirmative. Thereafter, appellant moved for judgment notwithstanding the verdict and the trial court granted that motion. It did so on the basis that a wife, unlike some other person, may be privileged to use a certain amount of influence on her husband. Thus, it observed: A rather critical fact, it seems to me, when one evaluates this case, because when one looks at the kind of importuning that a wife might do or a husband, in the reverse situation, it seems to me quite proper, quite due, if you will, to influence, upon learning that one is excluded from a will, to say, “How could you do this?

How could you not provide for me in my old age after all we have been through together?” Appellee successfully appealed to this Court. In explaining our rationale for reversing and ordering of reinstatement of the jury’s verdict, we pointed out that a wife’s importuning of a husband, while perhaps more understandable and less blameworthy, was no less importuning and affected whether the will expressed the decedent’s will or ⁶⁵² that of his wife. Since, we said, the jury properly and reasonably could have reached the conclusion it did, the court erred in granting judgment. Following that decision, appellant filed several petitions with respect to the estate: (1) Petition for allowance for counsel fees (defending a specific action); (2) Petition for allowance of counsel fees; and (3) Motion for Leave to File Seventh and Final Administrative Accounting.

Appellee, in turn, filed motions pertaining to payment of counsel fees out of the estate. She filed a Motion to Modify the Order Allowing Counsel Fees in Lieu of Personal Representative’s commission and a Motion to Strike and Set Aside Order of Court entered May 22, 1987. 1 Appellant had previously filed a Petition for Allowance of Counsel Fees in Lieu of Personal Representative’s Commission and a Petition for Expenses of Estate Litigation. 2 ⁶⁵³ By order dated October 19, 1989, the trial court denied the appellant’s motions and granted appellee’s. 3 Moreover, pursuant to Maryland Rule 2-602(b), it certified those rulings for immediate appeal and directed the clerk to enter final judgment. Appellant, as we have seen, has prosecuted this appeal. 4 Maryland Estates and Trust Code Ann. § 7-603 provides: When a Personal Representative or person nominated as Personal Representative defends or prosecutes a proceeding in good faith and with just cause, he shall be entitled to receive his necessary expenses and disbursements ⁶⁵⁴ from the estate regardless of the outcome of the proceeding. The plain language of the statute makes clear, and the parties agree, that a personal representative may not receive “necessary expenses and disbursements from the estate” unless he or she “defends or prosecutes a proceeding in good faith and with just cause.” Appellant maintains that, in order to find that she defended the will in bad faith, the court was required to conduct an independent evidentiary hearing.

This was so, she continues, because the question presented to the jury did not expressly identify her, or anyone else, for that matter, as the person who exerted the undue influence over the decedent. Thus, she concludes, without an evidentiary hearing, there was no factual predicate for the court’s finding of bad faith and, consequently, the court erred. The main thrust of appellant’s argument is that the jury did not find, and, therefore, there has never been a finding, by the court or anyone else, that she perpetrated the undue influence on the decedent. Appellee’s rejoinder is that the lower court did, in fact, find that appellant was the perpetrator of the undue influence and that, as a matter of law, a personal representative found guilty of exercising undue influence is precluded from receiving payment of counsel fees and costs out of the estate.

In appellee’s view, then, an evidentiary hearing to determine the existence of appellant’s bad faith was not required. The contention that the jury did not find that it was appellant who exerted undue influence on the decedent is totally without merit. In the prior appeal, the issue presented was whether the trial judge erred in granting appellant’s motion for judgment. To answer that question, this Court was required to review the factual context in which the case was presented to the jury and to assess the jury’s finding in light of those facts.

When we did so, we found, and so recounted, that those facts pertaining to the appellant’s actions bore on the issue of undue influence. ⁶⁵⁵ The only evidence concerning the possible involvement of anyone else was a letter, apparently introduced by appellee, in which the decedent wrote to appellee, “Tell Jack to keep the will confidential. Fred, Marian’s brother-in-law, is probing me to make a will to include Marian. It is a touchy situation with all the other problems.” Other than that evidence, the Court’s only focus was upon the relationship between the decedent and appellant and the circumstances surrounding the execution of the final Will, the one favoring appellant. The Court concluded: we are unable to agree with the conclusion of the trial court that there was no evidence legally sufficient to support an inference that the will was procured by undue influence.

The will was made by a man who was suffering from a grave and exhausting disease and unable to care for himself. It was contrary to the intentions he had repeatedly expressed until his wife confronted him with his recently executed will that left her nothing. A jury could reasonably infer that he was afraid of alienating his primary caretaker and was unable to withstand her importunities to change his will. (Emphasis supplied) Slip op. at 10.

Moreover, in granting the motion for judgment n.o.v., the trial court, itself, acknowledged that appellant was the subject of the undue influence allegations. As indicated earlier, the gist of that ruling was that it is different when a wife importunes her husband than when someone else importunes him. Indeed, the trial court considered the fact that the wife did the importuning to be “a rather critical fact”. See slip op. at 10-11.

In light of the very clear facts indicating that appellant was, at all times, the object of the allegation of undue influence and that the jury’s verdict was premised upon evidence tending to support those allegations, we are satisfied that an independent evidentiary hearing for the pur ⁶⁵⁶ pose of establishing “who unduly influenced the decedent” was not necessary. Implicit in appellant’s position is that a jury finding of undue influence does not preclude, as a matter of law, payment of a personal representative’s expenses out of the estate. Appellee’s position is explicit in its assertion that such a finding does preclude, as a matter of law, payment of such expenses from the estate. No Maryland court has had an occasion to address this point.

Thus, we seek guidance as to it from out-of-state cases which have. Appellant relies upon In re Taylor’s Estate, 54 Tenn.App. 173 , 388 S.W.2d 657 (1963). The appellant was the executrix under a will, which disinherited the decedent’s two daughters and, instead, bequeathed all of her property, with the exception of $1,000, which was bequeathed to the appellant, to a church, of which the appellant was the minister and guiding influence. That will having been contested and, following a jury trial, set aside, the appellant filed a final settlement and accounting.

In that final accounting, she claimed expenses relating to the will contest litigation. The lower court sustained the challenge to those expenses, filed by decedent’s daughters, reasoning that “since the will was set aside on the grounds of undue influence practiced by [the executrix] upon [the decedent] ... she was not entitled to credit for expenses of litigation....” 388 S.W.2d at 659 . The Tennessee Court of Appeals reversed. First, the Court held that the case fell within the exception enunciated in Smith v. Haire, 133 Tenn. 343 , 181 S.W. 161 (1915).

In that case, the Supreme Court of Tennesee stated: We do not mean to say that we will disallow such costs and attorney’s fees in every case wherein a will may be set aside on the ground of fraud and undue influence, even though the executor or executrix may be the sole beneficiary. A case may arise in which the jury would find fraud and undue influence with enough evidence to require an approval of such a verdict by the court, and ⁶⁵⁷ yet there might be in such a case circumstances that would justify the attempted probate of the will in good faith. 388 S.W.2d at 660 , quoting Smith, 181 S.W. at 162-63. The Court explained, in that regard, that an executrix’s “good faith was a question of fact which had to be determined upon the record in the trial below.” Id. at 663. It concluded, upon its de novo trial of the issue, id., that, although “the evidence required this court to approve the verdict of the jury finding undue influence on the part of the executrix ...[,] we find that all the surrounding circumstances justified [the executrix] in offering the will for probate and in making every reasonable effort to sustain