Griffith v. Benzinger

Offutt, J., delivered the opinion of the Court. The record in this case contains two appeals. The first was from, rulings of the Baltimore City Court made in the trial of issues involving1 the validity of a certain paper writing proposed as the will of Dr. Edward M. Wise, who was at the time of his death a resident of Baltimore City. The second isi from an order of that court setting aside the verdict of the jury tryingi the issues in favor of the plaintiff, on an issue involving the testamentary capacity of the decedent, and awarding' a new trial as to that issue.

There are one hundred and five exceptions involved in the first appeal, one hundred and four of which have to do with the rulings of the trial court upon matters of evidence, and the other of which relates to its action on the prayers, but the exception® which we are called upon to consider are not nearly so' numerous. The greater part of the exceptions relate to the third issue submitted to the jury — the issue involving, testamentary capacity — upon which the jury found their verdict for (the plaintiff' and against the defendants, the caveatees. Since the court, set aside that ver dict and directed a new trial of the issue, those exceptions have become wholly immaterial and irrelevant, and are not before us for review. Hor would the case be any different if the trial court had not taken that action, because in that event, the verdict being for her, would have demonstrated that the caveator could not possibly have been injured by the rulings of which she complains.

The outstanding question raised by the first appeal, is whether there is evidence to be found in the record legally sufficient to support the hypothesis that the disputed will was procured by undue influence or fraud, practiced upon the ⁵⁷⁹ decedent by Laura Kaiser, sole beneficiary under it. The trial court, at the conclusion of the ease for the caveators, directed the jury to find their verdict for the. caveatees on the issues involving respectively the execution of the will, knowledge of its contents, undue influence, and fraud. The uncontr’adicted testimony being that the testator signed the will and that his signature was attested by two witnesses in his presence-, and in the presence of each other at his- request, the caveatees were clearly entitled to a directed verdict on the issues involving the- proper execution of the- will by the decedent, and knowledge of its contents by bim, and no- error- can be imputed to the court for its. ruling in respect to tho-se- issues. The record in this case contains 936 pages.

A comparatively small part of it however relates to the is-sue of undue influence, and an even smaller part, to- the issue of fraud, and all the evidence: in relation to tho-se issues: which is material to- the question before us may be briefly stated. Stated narratively it is in substance this.: Edward Mi Wise-, at the: time of his death, was about sixty-seven years, old. He was. a physician and until a few years before his death had practiced -his profession in Baltimore. He- appears to have been a. cultivated, kindly man, naturally genial and generous and he- made- some- warm friends.

About eighteen or twenty years before his death he became afflicted with a. very distressing; nervous disease referred to in the testimony as chronic progressive, chorea, which affected the co-ordination of his: muscular1 system, and which manifested itself in Various, spasmodic, involuntary muscular contortions, twitchings, and jerks. As the disease- progressed and its physical manifestations became-more and more noticeable-, it became app-ar’ent that there was: accompanying bis physical decline also a perceptible mental deterioration. His: habits changed, he became regardless of appearances and conventions, he- became slovenly and filthy, he exposed his person in the most public, places, without any regard for decency or decorum; he was guilty of grossly ⁵⁸⁰ offensive familiarities with women whom he had never known, strangers whom he met casually in public conveyances. He had no near relatives.

His nearest known relative was the appellant in this ease, his first cousin, and while he was on friendly terms with her and her daughter, he saw them so infrequently that when they met on the .street a few months before bis death, notwithstanding his peculiar and distinct appearance, neither of them knew the other certainly or definitely, until their respective identities were made certain through mutual inquiries and greetings. He left an estate valued at more than $200,000, which, as has already been stated, be attempted to bequeath to Mrs. Laura, Kaiser, the only beneficiary under the paper writing in issue here. "When or where or bow* be first met her does not definitely appear, since ,sbe herself did not testify in the case, and no one else seemed to know. Kaiser was her maiden name.

She was a divorced woman. She bad been married to a Mr. Pteck, with whom she bad lived for some years in Canada and from whom she was later divorced. While she was living in Canada she received from time to time substantial sums- of money from Wise, and when she and her husband separated, Dr. Wise paid the expenses of the proceeding which resulted in a- decree divorcing her from her husband, and after she returned to Baltimore be continued his attentions to her. He gave her many costly presents, including furs and jewelry, and a house and lot on West Saratoga Street in Baltimore City, and gave her brother a farm in Anne Arundel County.

When she returned to- Baltimore he established her in the house on Saratoga Street and for a time visited her there, but finally made his home with her altogether and openly kept her there as bis mistress. That they were not unconscious- of the odium which would naturally attach to them because of their conduct, was manifested by various false statements which they gave when ⁵⁸¹ visited by acquaintances not familiar with the circumstances, in explanation of Mrs. Kaiser’s presence in Wise’s home. Ho referred to her as “Annie1 Wise,” a, cousin, and she explained her • apparent affluence by saying that she had received a legacy. As time went on, the disease from which he suffered grew steadily worse, and the physical symptoms of his mental and bodily decay more conspicuous.

As he fell more and more under the influence of the disease from which he suffered, his relations with Mrs. Kaiser became closer and more intimate, until at length, as already stated, he kept her openly in his. home as his mistress, and that relation continued until his death. Towards the end of his life, his condition imposed a very considerable burden upon any one who assumed the duty of giving him such care and attention as he required. That duty Mrs. Kaiser assumed, and she seems to1 have discharged it conscientiously and well. She appears, to have treated Dr. Wise, when he had become almost helpless from the inroads of his disease, with every attention, care and kindness.

But whilst she was his mistress, and whilst she acted also- as his nurse and his housekeeper, and whilst she treated him kindly and considerately when 'they were together, her motives nevertheless were mercenary, and she had no real affection for him, at least at that time. She on more than one occasion said that she wished he were dead, and that, his condition was more than she could stand, and that she would g,et all out of him she could while he lived. Hot only were the personal relations between Wise and Mrs. Kaiser what we have described, but she also took a part, in his business affairs. S'he kept the keys of his safety deposit boxes, she aided him in buying and selling his property, her brother collected his rents, and she urged him to make a will, and after she had insisted that, that be done, she went with him to a lawyer’s office, where he made a will in which he gave all of his1 prop1ertv to her. ⁵⁸² As the end of his life approached, and his bodily infirmities increased, his mind became correspondingly weaker, and be was more easily influenced, until he reached a stage when he could he influenced by anybody, and at that time Mrs. Kaiser1 exercised a controlling and dominating influence over him, which he was unable to resist, and it was as a result of that influence that he made the will which is in issue in this case, but it does not appear that she suggested or knew what the contents of that will would be, although her anxiety to have it executed indicates that she believed it would be favorable to her.

At that time her influence over the decedent was complete; be was constrained to do what sire asked him to do, and when she insisted that he make a will, he felt that he must comply. That this is not too1 strong a statement will appear from these brief extracts from, the testimony. Mióla Conyer, colored, a servant, in describing the decedent’s appearance and behavior said: “I guess often he would worry Mrs.. Kaiser’s nerves by the way he twitched himself — T don’t know how she felt about it; anyway to see a man and take care of him because he is nervous, he would make me nervous to see him that way, and I felt sorry for him myself.

I felt sorry for doctor, because he was in such a way; he was no good to himself, he couldn’t 'enjoy things, and Mrs. Kaiser used to tell me doctor used to* do everything Mrs. Kaiser said, because. Mrs. Kaiser said she could make doctor do anything she wanted him to do. * * * So when they g;ot ready to build a home in Anne Arundel Oounty that old house was moved hack and the new house was put forward and so then after we all came hack I heard Mrs. Kaiser sav to the doctor — iihe doctor was talking about buying some trees to plant at the Anne Arundel home, he wanted English walnut trees and plum trees — there were two at the Saratoga Street house, I sawed them off, they got in my way, I sawed them down, they got in my way — Mrs. Kaiser said, ‘Yes,’ and there has to- he a will made, and the doctor said, ‘All right,’ and then they got ready and they went out. I asked ⁵⁸³ Mrs. Kaiser1 — it wasn’t by business, but I asked Mrs. Kaiser, I said, ‘Who is that home going to be,’ and she said, ‘Mine.’ I said, 'That will be1 fine’; she said, ‘Ko, doctor is going to give that home to John, but that will be fixed, for if I am the longest liver it comes bade because John is grafting, Mabel is not John’s daughter, that is only his stepdaughter.’ ” Laura Stockton, another witness, who. appears to have been on confidential terms with Mrs. Kaiser, speaking of an occasion in November preceding; Dr. Wise’s death, s-aid: “A. I saw her and I saw Dr. Wise. He came down and he was ready to go out.

That was the last time I saw him alive and he said to me — she told me to go and shake handsi with him, and she went in the kitchen and kissed him goodbye; she told bim to be careful, she was very solicitous about him. She said, ‘I don’t, know how much longer I can stand this, it is near setting; me crazy, his actions.’ She said, ‘He promised to bring the will home today, I want, to see the will, I don’t-believe no man, and he also promised to make the house over1 to me today. Q’. What was it she said with reference to the will'( A. She said he promised to bring the will home that night; she wanted to see what was in the will, she didn’t trust no man.

Q. Mrs. Stockton, have you stated that exactly as Mrs. Kaiser1 said it to you, she didn’t trust no man ? Did she put in any word ? A. Yes, sir, she made it a little plainer. Q. Tell the jury how she said that ?

A. She said she didn’t trust no damn man.” She also said: “A. She (Mrs. Kaiser) said she believed the doctor was; losing his mind, he was nearly setting her crazy and she said that she was going: to get all she. could before he; died. * * * She told me the doctor’s mind was getting so bad he could be influenced by anyone and she; kept him in the house after that pretty1 much, she didn’t let him go out. * * * She said that she was praying every nigjht that the doctor would die and after he died she was going to have one wonderful time.” (latherine Frazier, colored, gave this testimony: “Did you ever hear Mrs. Kaiser say anything with reference to ⁵⁸⁴ Dr. Wise ? A. I never -heard hear say anything with reference to Dr. Wise, just only when he was laying a corpse, that is all I know when .she vised to come out to- the house and go on the poor excursion, he ‘dasn’t’ leave the house until she came. Q. (The Court) : What do you mean ?' A. She didn’t allow him to leave until she came and got him.

Q. What do you mean ? A. He was a member of the poor excursion and she told him not to leave; and he didn’t leave because she had the influence over him. Q. She asked him out? A. Yes, sir.

Q. He wouldn’t leave until she told him? A. Ho.” Maria, Brown, colored, testified: “Did you hear Mrs. Kaiser say anything at the house at that time whilst sire was engaged in removing1 Dr. Wise’s furniture and effects from the house ? A. Well, the Misses Key was speaking of how the doctor would throw himself and break up> things. Q. Miss Key was speaking of what ?

A. Of how the doctor would throw himself and break up chairs, would throw himself on a chair and break it; Mrs. Kaiser said, ‘When he breaks my things I make him get more.’ I said, ‘Mrs-. Kaiser, can you make him do anything’; she said, ‘Yes, I can make him do anything I want.’ ” And four or five weeks before his death the following conversation took, place between him .and Mrs. Kaiser’s-father1: “You were by yourself with him in the house? A. Yes, sir. He told me — -he says — he always called me Bop— he said, ‘Bop-, come here.’ I went, there and he said, ‘Don’t you think Laura has enough in $40,000.’ Q. Who said that?1 A. The doctor .said that.

Q. The doctor? A. S-aid to- me. Q. S-aid ‘Don’t- you think Laura has enough with $40,000'?’ A. I said, ‘If she hasn’t enough with $40,000 and the interest, she ought to hide herself. That is what I told him.” And Mrs. Kaiser accompanied him to the lawyer’s- office where the- will was executed, and remained there in -an outer room until he had' executed it, and when it was executed it was placed in a safe deposit box to which she held the key. ⁵⁸⁵ Whether this statement of the facts relating to the issue of undue influence and fraud is true or false is entirely collateral to any question before us.

In making it we have assumed the truth of all evidence .tending to support the caveator’s theory that the will Was produced by fraud and undue exercise, but we have done that only because the defendant’s “E” and “D” prayers, which were granted by the court, conceded the truth of that evidence. The inquiry then is are the facts stated legally sufficient to support the inference that the will was obtained by undue influence or fraud. The law relating to testamentary disposition induced by undue influence and fraud is too Well settled to justify any extended or elaborate exposition, but the difficulty lies in determining whether a given state of facts will support an inference that such a disposition of property in a given case is the result of fraud or undue influence. The general principles controlling such an inquiry are stated in the case of Grove v. Spiker, 12 Md. 301 , where it was. said: “Undue influence is that degree of importunity which deprives a testator of his free, agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act.

It is closely allied to actual fraud; and like the latter, when resorted to by an adroit, and crafty person, its presence often becomes exceedingly difficult to. detect. Indeed, the more skillful and cunning the accused, and the more helpless and secluded the victim, the less, plainly defined are the badges which usually denote, it. Under such conditions, the results accomplished, the divergence of those results from the course which would ordinarily be looked for, the situation of the party taking benefits under the will towards the one who has executed it, and their antecedent relations to each other, together with all the surrounding circumstances, and the inferences legitimately dedueible from them, furnish,, in the absence of direct evidence, and often in the teeth of positive testimony to. the contrary, ample ⁵⁸⁶ ground for concluding'' that fraud or undue influence has been resorted to and successfully employed.” And what was said in that case was complemented in Frush v. Green, 86 Md. 501 , in which it was said: “Undue influence is not, of course, every mere entreaty or pressing solicitation that may be invoked to sway the conduct or to persuade the judgment of another; but it is that degree of importunity which de¡pr’ives one of 'his free agency — such as he is too- weak or too feeble to resist, and ,such: as. will render the instrument exetouted under its. supremacy not his free and unconstrained act. It often closely resembles and is near akin to actual fraud, and like the latter when most cunningly employed is. exceedingly difficult to expose.

From the very nature of the wrong itself, it is rare that direct evidence can be procured to unmask it, and hence the results accomplished in a gjiven ease, the divergence of' those results from the course which would ordinarily and naturally be looked for, the situation of the parties taking benefits under an instrument, alleged to be the product of its dominion towards the person who has executed that instrument, their antecedent relations to and intercourse with each other; the legitimate, but unrecognized claim© of others upon the bounty of the one who has discarded them; their dependence upon him; his prior declaration; the instincts of justice and the promptings, of gratitude of which every unbiased mind is sensible; the natural ties of .affection, together with all the circumstances surrounding the entire transaction under investigation, and the inference legitimately dedncible from them, often furnish, even in the teeth- of directly contradictory testimony, ample ground for the conclusion that undue influence has been successfully resorted to, to accomplish an end which is .grossly unjust and whose very existence cannot be satisfactorily accounted for or explained except upon the theory that undue influence has produced it.” The principles announced in these two cases have been repeatedly approved by this Court and must be regarded as the settled law of this ⁵⁸⁷ State. Watson v. Y. W. C. A., 137 Md. 360 . And the statement of the law in those cases comprehends all the legal principles applicable to the facts before ns. While the existence of undue influence or fraud in a given ease is inconsistent with a lack of .testamentary capacity in the person whose act they are said to have affected, since the assertion that a will was procured by undue influence must assume that a will which but for such influence or fraud is valid exists, and necessarily concedes that such a person was at the time possessed of sufficient mental capacity to make a valid will (Stirling v. Stirling, 64 Md. 138 ), yet in all cases where they are in issue, the mental and physical condition of tlie person whose act is under consideration are relevant and material, since they bear directly upon the question of what resistance such person was able to oppose to the alleged influence, coercion, or fraud which is said to have been exercised upon him, although, as we have said, in dealing with issues involving the existence of undue influence or fraud in relation to the execution of a will, it is assumed that the testator was possessed of sufficient testamentary capacity to make a valid testament.

Stirling v. Stirling, supra. The mere fact that a person maintained illicit relations with another in whose favor a testamentary disposition was made by such person does not in itself raise a presumption of law or of fact that such disposition was obtained by fraud or undue influence, and the general rule embodying that principle is set out in the following language in Alexander on Wills, par. 590: “The mere fact that illicit relations exist between a man and a woman raises no presumption of undue infl menee because of a testamentary disposition by one in favor of the other. It is not essential to a will or a deed that the motives which led to the act should be virtuous or that the object of tbe donor’s bounty should be meritorious. To tbe argument that the influence of a mistress is illegal because it sprang from an unlawful relationship, it lias, been said that ‘however reprehensible such influences, may be, if a testator ⁵⁸⁸ voluntarily chooses tot be actuated by them, it is a privilege he may enjoy under the law ¡that secures to every one alike the right to dispose of Ms property without restraint upon his own judgment 'and conscience.’ ” But the fact that such relations existed between the decedent and the sole beneficiary under the proposed will is a fact to be considered in connection with other facts bearing upon the question, in determining the weigjht and sufficiency of evidence adduced to show .that a will wlas made as a result of undue influence or fraud.

The weigjht to be given such a fact must depend largely on the other facts wMeh accompany it, and the circumstances of each particular case1, and no more specific or definite rule than this can be formulated, that is, that while the existence of such relations between a testator and a beneficiary under his will is not in itself and by itself sufficient to support an inference that .the will was the result of fraud or undue influence, yet it is sufficient to throw suspicion upon the will and to intensify the care and diligence with which courts should examine the facts relating to the execution of it under such circumstancesi, and it may give to such facts a significance which they might not otherwise have. In Saxton v. Krumm, 107 Md. 401 , in dealing, with that question it was said: “The position of the appellant is .that it was competent for the jury, as matter of law, to infer the will was procured by undue influence from the testator’s illicit relation with the legatee, and from the unnatural disposition of the property, which disposition is contrary to. his previously expressed purpose. To this, proposition, which was earnestly pressed upon us by the very able arguments of the appellant’s counsel, we cannot assent. There appears to be a general concurrence in the authorities that neither an illicit relation, nor an unjust and unnatural disposition of the property is sufficient per se to warrant a conclusion of undue influence.

Thev are- circumstances properly to be considered by the jury in connection with evidence of undue influence, but they are not ⁵⁸⁹ in themselves evidence1 either1 of fraud, or undue influence. Where there is evidence of external acts of fraud, or undue influence, and especially where there is evidence that the capacity of the testator was impaired, the circumstances here relied on would he of great weight, as is evidenced from the cases of Grove v. Spiker, 11 Md. 300, and Hiss v. Weik, 78 Md. 439 . In Layman v. Conrey, 60 Md. 286 , and in Dalrymple v. Gamble et al., 68 Md. 523 , the principle here stated is fully recognized and applied. In the latter case the Oonrt said: £A good deal was said in argument as to the relations which existed between the testator and this legatee, but assuming them to be as reprehensible and as immoral as they have been pictured, still such immoral conduct., of which they were both equally guilty, did not deprive him of the power of making a will in her favor, nor her of the right to. receive whatever property that will gave her.’ “It would be a, great inconsistency and absurdity to accord to a testator the power to dispose of his estate in any way he may think proper, consistent with the settled principles of the law, and at the same time say that, this will may be annulled, if it appears that its. disposition is unjust, inequitable, or unaccountable.

The effect of such a, principle would he the practical denial of the free right of testamentary power in a very large class of oases.” And whatever may be the law elsewhere it is undoubtedly time that in this State the rule, is as stated in that case. There are decisions to the contrary, such as in the case of Platt v. Elias, 186 N. Y. 371 , 11 L. R. A. N. S. 554, and Snyder v. Erwin, 229 Pa. St. 644, in which the existence of such relations were held sufficient, to raise a presumption of fact sufficient to warrant an inference that a testamentary disposition by one party to such a relation in favor of the other is the res nit of undue influence, but in the case referred to this Court has expressly declined to go so far. Applying