FRIEDEL, ETC. v. Blechman

Singley, J., delivered the opinion of the Court. Lillie E. North, a 72 year old widow who had neither children nor descendants died at Sinai Hospital on 7 December 1965. Her next of kin at the time of her death were her brother, Irvin Eisner; a niece, Marcia Eisner, the only child of a deceased brother, Daniel Eisner, who died in 1963; and three nieces, Geraldine Blechman, Marcia Dahne, and Charlotte Kunkoski, and a nephew, William Eisner, all children of a deceased brother, Louis Eisner, who died in 1958. On 1 November 1965, while a patient at the hospital, Mrs. North executed a will which disposed of an estate later inventoried at some $22,000.

The will left legacies of $1,000 to a friend, Rose Sachs; of $2,000 to her niece, Marcia Eisner; of $500 each to the Associated Jewish Charities, the Talmudical Academy, the Ner Israel Rabbinical College, and the State of Israel; and of $3,000 to Gilbert I. Friedel, whom Mrs. North described as her “attorney and friend.” The residue of the estate was devised and bequeathed to Mrs. North’s only surviving brother, Irvin Eisner. Mr. Eisner and Mr. Friedel were named as executors. After Mrs. North’s death, the will was admitted to probate and the executors duly qualified. ²⁷³ Thereafter, the four children of Louis Eisner (the caveators) who are the appellees here, filed a petition and caveat in the Orphans’ Court of Baltimore City against Mr. Eisner and Mr. Friedel, as executors (the caveatees). The usual issues, seven in number, were framed and sent to the Court of Common Pleas for a trial by jury.

Maryland Code (1957, 1964 Replacement Volume) Art. 93, §§ 278 and 280; Sykes, Contest of Wills in Maryland (1941), § 21 at p. 29; Myers v. Hart, 248 Md. 443 , 237 A. 2d 41 (1968); Fidelity Trust Company v. Barrett, 186 Md. 483 , 47 A. 2d 72 (1946). Later, 18 additional issues, framed by counsel, were transmitted by agreement by the Orphans’ Court to the law court, so that when the trial commenced below, there were 25 issues to be submitted to the jury. The trial of the case took the better part of four days. From the testimony, a reasonably accurate picture of Mrs. North can be developed.

For more than 40 years, she had lived at 2316 West Baltimore Street in a house which was owned by a sister, Bessie Eisner, and after the death of Mr. North in 1958 and the hospitalization of her sister in about 1963, had lived there alone. The house was cluttered and untidy and Mrs. North was at times careless about her appearance. In years past, the relationship between Mr. and Mrs. North and Louis Eisner’s children had been a close one; but after Mr. North’s death and the marriage of the nephew and nieces, she saw them infrequently, principally at family gatherings. Although Jewish, and apparently the daughter of orthodox parents, she had wandered away from Judaism and had become interested in Christian Science, and visited the reading room and attended lectures at the Third Church with some regularity.

In September of 1964, Mrs. North had gone with her brother, Irvin Eisner, to the office of Mr. Gilbert I. Friedel (who was Mr. Eisner’s lawyer) to consult him about the administration of the estate of her sister Bessie, who had died in August at Spring Grove State Hospital. Although Mrs. North renounced her right to administer on the estate, and presumably had limited contacts with Mr. Friedel, 1 it would seem that some bond ²⁷⁴ developed between them, because she called his office each Friday to wish him a “happy Sabbath.” On 27 October 1965, Mrs. North called Mr. Friedel at about 10:30 a.m. and said that she wanted to see him “right away” because “she was going to Sinai Hospital.” Mr. Friedel went to 2613 West Baltimore Street, where Mrs. North gave him five bankbooks, some jewelry wrapped in handkerchiefs, and $1,746 in cash. Mr. Friedel insisted on giving Mrs. North a receipt for the money, but “she tore it up and she said she wanted [him] to have it.” When Mrs. North suggested that the bank deposits be withdrawn for hospital expenses, Mr. Friedel said that it would be preferable for him to have a power of attorney, and Mrs. North agreed. 2 In the late afternoon of 27 October, Mr. Friedel stopped at the hospital to see Mrs. North on his way home to dinner. Mr. Friedel described the conversation: “And, anyway, after then she discussed with me about a will.

She said she didn’t have a will. Her sister had a will. And, she told me she wanted to leave me all the money. And, I told her, I’m not interested in her money, I just represented her and I am a friend of hers, and I didn’t want her money.” It was then agreed that Mr. Friedel would bring an associate, Mr. Jerome M. Katz, with whom Mrs. North was acquainted, to the hospital to draw the will.

Mr. Katz testified that he had first met Mrs. North in September, 1964; that he went with Mr. Friedel to the hospital at about 5 :30 p.m. on 1 November 1965; that Mrs. North was sitting up in bed; and that after an exchange of pleasantries, a conversation ensued: “Then I said that T understand you want me to prepare the will for you.’ And she said, ‘Yes.’ And * * * she then said, ‘Well, I would like to leave Mr. Friedel everything.’ And he said, ‘Well, I don’t want you to ²⁷⁵ leave me anything.’ So, at that time, I then put my briefcase down and I began to prepare the will.” Mr. Katz testified that he wrote the introductory paragraph and a provision with respect to the payment of debts and funeral expenses, and then, “I asked her where she desired to be buried, and she said that she wanted to be buried on the family lot. So—and, I put, T desire to be buried in my family lot.’ And, I asked her who did she want to leave her estate or money to, and she said, ‘Well, I first want to give my friend Rose Sachs a thousand dollars’, so I put that down. Then I said, ‘What else,’ and she said, T want to leave my niece Marcia Eisner, who is the daughter of my dead brother Daniel, $2000.’ And, I then proceeded to write that down. Then she said, ‘Now, I want to give the Associated Jewish Charities $500.’ And, I put that down on the paper.

Then she said, T want to give Ner Israel Rabbinical College $500, and the State of Israel $500,’ which I also put down, and she mentioned she wanted to give the Talmudical Academy $500, which I put down, but then she said, T do want to give Mr. Friedel something because he has been such a good friend and attorney to me, and I want to give him $3000,’ and I put that down. And I said, ‘Well, who do you want to give the rest of your estate to ?’ She said, ‘Well, I’ll give the rest of my estate to my, I want to give the rest of the estate to my brother Irvin Eisner, and put down the part about (reading) ‘All the rest, residue and remainder of my estate, whether real, personal, or mixed, where so ever located, I do hereby give, devise and bequeath unto my brother, Irvin Eisner.’ And then I asked her who did she want to appoint as executors of her will, and she said that she wanted Irvin Eisner, her brother, and Mr. Friedel to be her executors, and I put that down on the will.” Mr. Katz continued: “(Witness) Upon completion of the will, 1 read the ²⁷⁶ will to her, the entire will from beginning to end and then I handed the will to her for her to read. (The Court) What did she do with it, if anything? (Witness) She took the will and proceeded to read it.

(The Court) All right. What happened after that? (Witnes) Then I went out of the room to get a nurse to get a doctor to be another witness besides myself, and then I came back into the room. (The Court) Who witnessed the will?

(Witness) Then Dr. Roth came into the room and, and he and I witnessed the will. (The Court) Who got Dr. Roth? (Witness) The nurse got Dr. Roth. (The Court) At whose request?

(Witness) At my request. (The Court) How was the will executed? (Witness) In the presence of Dr. Roth and myself, Mrs. North signed the first page of the will and then signed the second page of the will on a line I had drawn for signature. Dr. Roth and I then witnessed her signature.

(The Court) In your opinion did the deceased understand the nature and consequence of her acts ? (Witness) Yes. (The Court) Was it a voluntary act * * *, on her part, in your opinion ? (Witness) Yes, sir.” Dr. Marvin Alan Roth, who was a member of the house staff at the hospital when Mrs. North was admitted, and the other witness to the will, testified that Mrs. North had signed the will in his presence and in the presence of Mr. Katz, and that they had both witnessed the will in her presence.

In response to questions, he said that he had seen Mrs. North at least once each day from 27 October to 5 November; that “her general condition was good”; that “[s]he was well oriented in time and place on the dates that I saw her” and that “When I took care of [Mrs. North] she was not pretty sick.” ²⁷⁷ Mrs. Rose Sachs, a friend of Mrs. North’s visited her on 28 October, the day after the hospital admission, and regularly thereafter. She testified about a conversation with Mrs. North about the will but was unable to fix the exact date: “When she said to me that she made a will and I looked at her, I was really astonished. She said, ‘Yes, I’m going to tell you all about it, and you are in the will.’ This is what I did answer her. I said, ‘You must be crazy.’ I said, T didn’t want to ask her where she got her money, it was none of my business.’ So, kiddingly, I said to her, ‘You’ve always spoken of wanting to go to Florida.

If you want to do something, you can take me—get well and get out of here and you can take me to Florida.’ She said, ‘We will see about that later.’ I said, ‘All I want you to do is get well, if you have anything, enjoy it and live to 140.’ She said, ‘Now, I’m going to tell you something else. Mr. Friedel has been a very, very close friend to me, he has been kind, he has been helpful, he used to talk to me very nicely.’ She said, ‘Every Friday I used to call him, which I told you, to wish him Good Shabbos.’ That means, I don’t know if I can translate it or not, sort of good wishes on our Sabbath. She says, ‘You know how much I always thought of Mr. Friedel.’ So, I did say this, I says, ‘Lil, you got a brother, what about your brother Irvin ?’ She says, ‘My brother Irvin is going to be well taken care of.’ I said, T want to tell you something, we may have fought, we may have had our arguments and everything else, I loved him, I still love him and I’ll never forget it.’ So, I did make this statement, I says, ‘But, Lil, I am only a stranger to you. Even though we have been closely associated and friends, you have nieces and nephews.’ She says, T am not leaving them one red penny.

They have not bothered about me. I was sick, I called up my nephew Billy [Mr. William Eisner] to come over—I think this might have been a week or ten days before she entered the hospital—and he did not * * * come over. But when I called my nephew, Alan [Mr. Irvin Eisner’s son], up, he did come over.’ * * * She said, ‘As far ²⁷⁸ as my nieces and nephew’—may I use the word ? * * * She said, ‘They stink.’ She said, ‘They have never bothered about me. When I went to any affairs of theirs, they dropped me off at their convenience,’ she said, ‘which you well know.’ ” Mrs. North underwent surgery on 5 November for the removal of a large abdominal mass; was transferred from the hospital to a nursing home on 19 November, commenced to hemorrhage; and was returned to the hospital on the same day and stayed there until she died on 7 December.

The testimony offered in behalf of the caveators was largely cumulative in effect. Mrs. Blechman testified that in the “past several years [she had visited Mrs. North] not too often;” that she had last seen Mrs. North at a nephew’s Bar Mitzvah in September, 1965; that she did not know that Mrs. North was in the hospital until 5 November, the day of her operation; that she went to the hospital on 6 November with her sister, Mrs. Marcia Dahne; that she visited Mrs. North a “couple times” between 7 November and 19 November, but after 19 November “every day except Saturday;” and that on a visit subsequent to 6 November, Mrs. North asked her “to find out what kind of paper she had signed” and “to please find her rings.” On Thursday, 2 December 1965, Mrs. Blechman and Mrs. Dahne visited Mrs. North at the hospital. As Mrs. Blechman tells of the visit: “She seemed particularly distressed and upset and started pleading with us to get Mr. Caplan or somebody to come talk to her and do something for her and please get her rings and her, find out what she had signed, so I went to the phone and I called Mr. Caplan and he dictated a paper, something to me over the phone * * * and he said to have her sign this.” The paper, offered in evidence, was a direction addressed to Gilbert Friedel and Jerome Katz, authorizing them “to turn over to my niece, Jerry Blechman, the following: my marriage ring [my] engagement [ring] and all papers which I signed for you after I entered Sinai Hospital.” Mrs. North added some language which is indecipherable, but was apparently too weak to sign the paper. Mrs. North died five days later. ²⁷⁹ The testimony of Mrs. Marcia Dahne, Mrs. Blechman’s sister, was essentially similar.

She apparently had been close to Mrs. North at one time, but in the two or three years prior to Mrs. North’s death, had “seen her at several family functions and then the two religious holidays.” She saw her aunt at Rosh Hoshanah in 1965. Mrs. Dahne confirmed the conversation about the “paper” Mrs. North had signed, but definitely fixed the date of the first conversation as after 19 November. Mr. William Eisner, Mrs. North’s nephew, testified, as did his sisters, that he had been closer to his aunt in the past than in recent years; that he had seen her at family affairs and had visited her at the hospital after her operation; and that as a result of her concern over her affairs, and after a conference with his sisters, he had asked his own attorney, Mr. Reuben Caplan, to see Mrs. North. Mr. Reuben Caplan, a member of the Baltimore bar, called as a witness for the caveators, testified that he had visited Mrs. North at the hospital on 29 November 1965 at the request of William Eisner.

He described the conversation: “I asked her what she wanted to talk with me about. She told me that she wanted me to find out something for her. I asked her what it was. She said that they had gotten her to sign a paper.

She didn’t know what the paper was about and wasn’t explained to her; they just got her to sign it. I said, ‘Who got you to sign it?’ She said, ‘Mr. Katz.’ I said, ‘Well, wasn’t Mr. Katz your lawyer?’ She said, ‘No.’ I said, ‘Well, who was your lawyer?’ She said, ‘Mr. Friedel is my lawyer.’ I said, ‘Did they explain to you what the paper was?’ She said, ‘No.’ I said, ‘Didn’t they tell you what was in the paper before you signed it?’ She said, ‘No.’ I said, ‘All right, I’ll find out for you what the paper was about and I’ll call Mr. Katz and if I find out anything at all either I’ll come back or I’ll send word back to you through Mr. Eisner.’ I then asked her if there was anything else she wanted me to do besides finding that out, and she said, no, that was all she wanted me to do at the present.” ²⁸⁰ Mr. Caplan called Mr. Katz; Mr. Katz said that Mrs. North had signed a will, but that he thought “it would be unethical” to disclose the contents; and this was reported to Mr. William Eisner. Mr. Caplan confirmed the fact that Mrs. Blechman had telephoned him about Mrs. North’s jewelry, and fixed the date of this call as being not earlier than 30 November. Mac Blechman, the husband of Geraldine, testified that “for the past fifteen years [he had visited Mrs. North] not too often;” that he had seen Mrs. North at the hospital on Sunday, 7 November and on four occasions thereafter; that Mrs. North had asked him about the “paper” as early as 7 November, but that he had done nothing about it because he thought she was talking about a hospital release form; that on Friday, 4 December, Mrs. North sent for him and told him: “[A]t this time, again, she said, T signed a piece of paper, I know I did wrong, and you must do something about it.’ I said, ‘Aunt Lil, I have no power to do anything.’ She said, T want you to see, I trust you, I like you, and I have confidence in you.’ She said, T want you to see that my money is given to the people who deserve it.’ She said, ‘Who should get my money.’ We discussed this at great length.

She thought that having one living brother, he should be entitled to a share of it; the child of a deceased brother, a share of it; and the four children of the other deceased brother, a share.” Mr. Blechman then went to his own attorney and had a will drawn, which named Mrs. Blechman as executrix (at Mrs. North’s direction, he said) and conformed to these instructions. The better part of the day was devoted to this, and when Mr. Blechman returned to the hospital, Mrs. North’s condition had deteriorated to a point where “she was not rational” and could neither understand nor sign the will. At the conclusion of the caveators’ case, the caveatees moved for a directed verdict on all 25 of the issues which had been transmitted by the orphans’ court to the trial court. The lower court granted the motion as to issues Nos. 1, 4 and 6, which were as follows: ²⁸¹ “1.

Was the paper writing dated the 1st day of November, 1965, purporting to be the Last Will and Testament of Lillie E. North signed by her, or by some other person for her, in her presence and by her express direction, and attested and subscribed in her presence by two or more credible witnesses ?” “4. Was the said paper writing, dated the 1st day of November, 1965, and purporting to be the Last Will and Testament of the said Lillie E. North, executed by her when she was of sound and disposing mind and capable of executing a valid deed or contract ?” “6. Was the said paper writing, dated the 1st day of November, 1965, and purporting to be the Last Will and Testament of the said Lillie E. North, revoked after the execution thereof ?” The result of the court’s ruling was to require the jury to answer issues Nos. 1 and 4 in the affirmative, issue No. 6 in the negative, and to postpone for later determination the remaining 22 issues, which, after being renumbered, read as follows : “1. Were the contents of the said paper writing, dated the 1st day of November, 1965, purporting to be the Last Will and Testament of the said Lillie E. North, read to or by her, or known to her at or before the time of the alleged execution thereof ?” “2.

Was the execution of the said paper writing, dated the 1st day of November, 1965, and purporting to be the Last Will and Testament of the said Lillie E. North, procured by undue influence exercised and practiced upon her ?” “3. Was the said paper writing, dated the 1st day of November, 1965, and purporting to be the Last Will and Testament of the said Lillie E. North, procured by fraud exercised and practiced upon her ?” “4. Is the said paper writing, bearing the date the 1st day of November, 1965, the Last Will and Testament of Lillie E. North?” ²⁸² “5. Was Item 2, Paragraph (a) of the said paper writing dated the first day of November, 1965, purporting to be the Last Will and Testament of the said Lillie E. North, misunderstood by her at or before the time of the alleged execution thereof ?” “6.

Was Item 2, Paragraph (b) of the said paper writing dated the first day of November, 1965, purporting to be the Last Will and Testament of the said Lillie E. North, misunderstood by her at or before the time of the alleged execution thereof ?” “7. Was Item 2, Paragraph (c) of the said paper writing dated the first day of November, 1965, purporting to be the Last Will and Testament of the said Lillie E. North, misunderstood by her at or before the time of the alleged execution thereof ?” “8. Was Item 2, Paragraph (d) of the said paper writing dated the first day of November, 1965, purporting to be the Last Will and Testament of the said Lillie E. North, misunderstood by her at or before the time of the alleged execution thereof ?” “9. Was Item 2, Paragraph (e) of the said paper writing dated the first day of November, 1965, purporting to be the Last Will and Testament of the said Lillie E. North, misunderstood by her at or before the