Hess v. Frazier

Moylan, J., delivered the opinion of the Court. Helen Lee Dietrich died in Baltimore City on or about November 8, 1971, leaving a considerable estate. She died alone, not attended by any physician. On the night of the discovery of her remains by her son-in-law, there was also found her purported Last Will and Testament.

This was turned over to the named executor. This purported Last Will was filed in the Orphans’ Court for Baltimore City. Surviving the testatrix were two daughters, Patricia Dietrich Hess and Helen Neal Dietrich Curley, the appellants in this case, and two grandchildren, Mark Hess and Lisa Hess, children of the appellant Patricia Dietrich Hess. Also surviving the testatrix were her two sisters, Antoinette L. Frazier and Rita V. Chalmers, and a brother, William Edward Smith (all of whom are the appellees herein along with the executor, Francis X. McDonough).

The Last Will and Testament in question essentially divided the estate into five equal parts, with one-fifth going to each of the testatrix’s two daughters, two sisters' and brother. Immediately upon the filing of this will in the Orphans’ Court, the appellants filed their Petition for Caveat. Four agreed-upon issues were certified for jury trial to the Superior Court of Baltimore City. The issues to be determined by the jury were as follows: “1.

Was the decedent, at the time of the execution of said Instrument, of sound and disposing mind and competent to make a Will? 2. Was the Will, purported to be executed by the decedent, procured by undue influence, exercised and practiced upon her? 3. Was the Will, purported to be executed by the decedent, procured by fraud exercised and practiced upon her? 4. Was the contents of said Will read by the ¹⁵³ decedent or read to her or otherwise explained to her before the execution of said Instrument?” A jury trial on the certified issues was conducted in the Superior Court from February 6, 1973, through March 1, 1973, Judge James A. Perrott presiding.

At the close of the appellees’ case, the court directed a verdict in favor of the appellees on issues 2, 3 and 4. The first issue went to the jury, which decided that the decedent was not competent at the time she executed her Last Will and Testament on December 12, 1968. On March 29, 1974, on motion duly made, Judge Perrott granted a Judgment Non Obstante Verdicto in favor of the appellees on the first issue. On this appeal, the appellants raise two contentions: (1) That the trial court erred in granting the Motion for Judgment N.O.V.; and (2) That the trial court erred in granting the Motion for Directed Verdict on the second issue.

The appellees have also filed a cross-appeal in which they charge that seven erroneous and harmful rulings were made against them during the course of the trial — in one case involving the failure to charge the jury and in six other cases involving the admission of and refusal to strike certain testimony. We will consider first the granting of the directed verdict in favor of the appellees on the second issue, which was whether the will was “procured by undue influence.” The appellants do not contend that the decedent’s sisters or brothers exercised any undue influence upon her. Indeed, the evidence revealed that they had had little contact with her during the months and years prior to her death and were pleasantly surprised to have been significant legatees under her will. The appellants direct their focus at the appellee-attorney, Francis McDonough, who prepared the will.

Even taking the testimony, and all reasonable inferences drawable therefrom, in the light most favorable to the appellants, there is no evidence suggesting any undue ¹⁵⁴ influence practiced upon the decedent by her attorney. The decedent had prepared, through another attorney, an earlier will in October, 1968. In that earlier version, she had left each of her daughters the sum of $1. After advising with Mr. McDonough, the decedent changed this provision in the December 12, 1968, will.

Indeed, a bequest to Mr. McDonough himself in the proposed October, 1968, will was not carried forward into the December 12, 1968, will. In his initial draft of the new will, moreover, Mr. McDonough had provided for each daughter to receive a cash bequest. Mrs. Dietrich eliminated this provision, necessitating a redraft of the proposed will. Mr. McDonough was not present when the will was executed.

He testified further that Mrs. Dietrich was a strong-willed woman and a shrewd business woman, not easily influenced. A key portion of Mr. McDonough’s testimony, relied upon by the appellants, is indeed adverse to their cause: “I indicated to Helen Lee Dietrich that that will was susceptible to attack. I told her it would be better to include her daughters in the will. It was up to me to tell her that.

I am accused of using undue influence. If I would have convinced the lady to leave the estate to the two daughters, they wouldn’t have this caveat, but that is how much influence I had. But Helen Dietrich was a practical business woman. When I explained to her that the will would be caveated, the will that Bill McDonald drew, possibly, and she asked, what happened in a caveat case.

I said, well, normally the party makes some sort of a compromise, the party that has been left the estate makes some compromise with the caveators, especially if the caveators are the children. She said, ‘You mean they split it to a fifth?’ I said, yes. It was under those circumstances she decided to give them each a fifth.” The appellants’ position that the will was an “unnatural will” does not hold up under analysis. Mrs. Dietrich’s two daughters each received a one-fifth interest in her estate. ¹⁵⁵ They were neither disinherited nor ignored, even though the evidence established some estrangement between mother and daughters in the few years preceding her death.

She was displeased that they had apparently “sided” with their father during a period of marital difficulty between Mrs. Dietrich and her former husband. Nor did Mrs. Dietrich bequeath even the remaining three-fifths of the estate to strangers. Her two sisters and her brother were normal “objects of one’s bounty.” The decedent’s sister Mrs. Frazier had taken trips with Mrs. Dietrich and was the one who had come up from Ocean City to assist Mrs. Dietrich in leaving Springfield State Hospital. The disposition of the estate was in no way “unnatural” or indicative of any lack of capacity to make such disposition.

Shearer v. Healy, 247 Md. 11, 25-26 , 230 A. 2d 101 (1967). Nor is there any proof whatsoever of undue influence over Mrs. Dietrich on the part of Mr. McDonough. The Maryland law in this regard is clear. In Shearer v. Healy, supra, the Court of Appeals stated at 247 Md. 23 : “The Maryland law in regard to the required proof to establish undue influence vitiating a will was well stated by Judge (now Chief Judge) Hammond, for the Court, in Stockslager v. Hartle, 200 Md. 544, 547 , 92 A. 2d 363 (1952), as follows: ‘* * * [U]ndue influence which will avoid a will must be unlawful on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, so that free agency of the testator is destroyed.

The proof must be satisfactory that the will was obtained by this coercion (although it need not be immediately exercised as of the date of the execution of the will if its influence causes its execution) or by importunities which could not be resisted, so that the motive for the execution was tantamount to force or fear. Mere suspicion that a will has been procured by undue ¹⁵⁶ influence, or that a person had the ‘power unduly to overbear the will of the testator’ is not enough. It must appear that the power was actually exercised, and that its exercise produced the will. The burden of proof is on the caveator to meet these requirements of the law.’ (Emphasis supplied) The Court in Stocfcslager cited with approval and followed Koppal v. Soules, 189 Md. 346 , 56 A. 2d 48 (1947).

See also Layman v. Conrey, 60 Md. 286 (1883).” See Sachs v. Little, 245 Md. 343, 371-372 , 226 A. 2d 283 (1967); Ingalls v. Trustees, 244 Md. 243, 268-270 , 223 A. 2d 778, 791-792 (1966); Treffinger v. Sterling, 269 Md. 356, 363 , 305 A. 2d 829 (1973). There was simply no evidence in this case that any undue influence was exercised by Mr. McDonough over the testatrix. The trial judge was not in error in directing a verdict in favor of the appellees on this issue. The more significant controversy is over the question of whether the trial judge was in error when he granted the Motion for Judgment N.O.V. in favor of the appellees — reversing the verdict of the jury and finding that Helen Lee Dietrich was “of sound and disposing mind and competent to make a will” as of December 12, 1968.

Focusing almost exclusively on this single salient issue, the trial consumed fourteen court days and produced 1550 pages of transcribed testimony. Approximately 30 witnesses were called, including seven doctors. Numerous physical exhibits were introduced. The thrust of all of the evidence was to the effect that Helen Lee Dietrich was at the time of her death, and had been for many years before, an alcoholic.

At issue was the effect of this alcoholism upon her testamentary capacity. The legal standard against which the sufficiency of the evidence to create a jury issue will be reviewed was well set out by Judge Singley for the Court of Appeals in Webster v. Larmore, 268 Md. 153, 157-158 , 299 A. 2d 814, 816-817 (1973): ¹⁵⁷ “We restated the rule of the cases, speaking through Judge Horney, in Arbogast, Executor v. MacMillan, 221 Md. 516, 525 , 158 A. 2d 97 (1960): ‘It is true, of course, that evidence tending to prove competency in general may relate to the entire period of acquaintance of a witness with a testator both before and after the date of the making of a will. Jones v. Collins, 94 Md. 403, 411 , 51 A. 398, 400 (1902); Harris v. Hipsley, 122 Md. 418, 435 , 89 A. 852, 857 (1914). But evidence produced to show lack of testamentary capacity must relate to the mental condition of the testator at the time the will was executed.’ This is the logical consequence of the presumption of testamentary capacity, stated in the same opinion, 221 Md. at 523 : ‘The law presumes that every man is sane and has capacity to make a valid will, and the burden of proving the contrary rests upon those who allege that he lacked mental capacity.

Cronin v. Kimble, 156 Md. 489, 494 , 144 A. 698, 700 (1929); Smith v. Shuppner, 125 Md. 409, 417 , 93 A. 514, 517 (1915). Moreover, in the absence of proof of prior permanent insanity, it must be shown that the testator was of unsound mind at the time the will was executed in order to overcome the presumption of sanity. Acker v. Acker, 172 Md. 477 , 192 A. 327 (1937); Gesell v. Baugher, 100 Md. 677 , 60 A. 481 (1905).’ See also Waple v. Hall, 248 Md. 642, 657-58 , 238 A. 2d 544 (1968); Ingalls v. Trustees, 244 Md. 243, 260 , 223 A. 2d 778 (1966).” Although numerous witnesses testified for the appellant as to the deleterious effect of the alcoholism upon the health of Helen Lee Dietrich, a review of that testimony reveals ¹⁵⁸ that none gave evidence as to a specific lack of testamentary capacity on December 12, 1968, and, with one possible exception to be discussed more fully hereinafter, none gave evidence as to prior permanent insanity. Dr. John H. Hirshfeld treated Mrs. Dietrich in December, 1967, for alcoholism and had her committed to Encore House.

He diagnosed her condition as acute intoxication and chronic alcoholism. He testified that she was a chronic alcoholic and that each bout of alcoholism caused irreversible brain damage. He also testified, however, that “There are alcoholics that can still function and hold a job;” that he could not say that Mrs. Dietrich, when he saw her in December, 1967, “was permanently insane;” and that he had no knowledge of Mrs. Dietrich’s condition on December 12, 1968. Dr. Edwin B. Jarrett saw Mrs. Dietrich in 1959 and again in 1964, on which latter occasion he treated her at the Union Memorial Hospital for drug poisoning (possibly suicidal).

He testified that Mrs. Dietrich had “quite a checkered psychosomatic career.” He clarified this characterization by saying that he meant that “she had good times as well as bad times.” He testified further that when he last saw her in May, 1964, Mrs. Dietrich was “not insane.” Dr. Francis X. Carmody testified that he treated Mrs. Dietrich at the Union Memorial Hospital in 1968. She was in the hospital for several days and was his patient for approximately one year. At the time of her admission, she was intoxicated and was suffering from withdrawal syndrome from alcohol intoxication. She had, moreover, cirrhosis of the liver.

Dr. Carmody also testified, however, that when Mrs. Dietrich was not intoxicated, she “was a very cordial and friendly . . . woman. It was a striking difference in her behavior.” He testified that when he last saw Mrs. Dietrich in June, 1968, “She was not intoxicated and was very cooperative and pleasant. I don’t think I saw her after that.” He testified that when Mrs. Dietrich visited his office after her discharge from the hospital, “she could make a contract and have a general idea or have an idea what she was doing, just like you and I would.” He testified ¹⁵⁹ that throughout his course of treatment of Mrs. Dietrich he “had never thought of Mrs. Dietrich as being permanently insane . . .” Dr. Lester H. L. Kolman had treated Mrs. Dietrich in February, 1968, for delirium tremens as well as other symptoms of alcoholism. He did not think that she was mentally clear at all times, even without alcohol.

He also testified, however, that “if she would stay off alcohol and with some care, her condition would improve.” He indicated that the medical records on February 1, 1968, indicated, in part, that Mrs. Dietrich was “mentally alert, ambulatory, feeds herself.” He testified that he never saw Mrs. Dietrich after February, 1968. Dr. Teresa M. Boria testified that she treated Mrs. Dietrich for a three-day period at the Seton Institute beginning on May 10, 1968. Although her diagnosis included “some mental illness,” “suicidal thinking,” “a history of depression,” and a reluctance “to accept treatment,” Dr. Boria’s opinion was that at the time of Mrs. Dietrich’s discharge from Seton Institute against medical advice that her degree of psychiatric impairment was moderate. Dr. Boria testified that she meant by this that the psychiatric illness “somehow interfered with normal functions of life between 30 and 50 percent reduction.” Dr. Boria stated that “in cases of depression, which involve alcoholism ... it was possible that in the absence of alcohol, there could be times when there was no depression.” Dr. Boria also stated that after Mrs. Dietrich’s stay at Seton, “her mind was clear.” Dr. Irving Taylor testified that Mrs. Dietrich was a Patient at Taylor Manor beginning on October 15, 1959.

She was depressed on admission. Mrs. Dietrich left Taylor Manor against the doctor’s advice. He stated that the “prognosis was guarded.” Dr. Taylor testified as to Mrs. Dietrich’s competence to execute a valid deed or contract in the following inconclusive fashion: “Q. Doctor, isn’t it possible in your opinion that, after the electroshock therapy wore off, that Mrs. Helen Lee Dietrich, who was your patient could ¹⁶⁰ have had periods when she was competent to make valid deeds or contracts? * * * A. I don’t know. This would depend on a number of factors.

How much more she drank; what her basic condition was after the depression, the effects of the treatment, and the acute intoxication; all three of those things disappeared. Q. A combination of the circumstances could occur, that could occur to make this circumstance possible? A. I don’t know.” (Emphasis supplied) Dr. Taylor further testified that when Mrs. Dietrich left Taylor Manor in October, 1959, when he saw her, she “certainly was competent.” The lay witnesses did not in any fashion establish that Mrs. Dietrich was either 1) testamentarily incompetent as of December 12, 1968, or 2) permanently insane. George Dietrich, her former husband, testified that he and his wife had run a family-operated realty office for a number of years.

They separated in 1965. Subsequent to the separation, Mr. Dietrich filed suit against Mrs. Dietrich, seeking an equal interest in the realty business. The appellant Patricia Hess left the home to be married in 1956. The appellant Helen Lee.

Dietrich Curley left home to take her own apartment in 1964. Mr. and Mrs. Dietrich were divorced in 1969. It was Mrs.- Dietrich who filed suit against her husband for the divorce. Mr. Dietrich testified that when Mrs. Dietrich was not drinking, she was competent to operate her real estate business.

Mr. and Mrs. Dietrich executed a settlement agreement, under which Mr. Dietrich was to receive $37,500, on November 20, 1968 — 22 days prior to the execution of the will now in question on December 12, 1968. The appellant Helen Lee Dietrich Curley testified that she left home in 1964 because of her mother’s drinking. She testified further, however, that when her mother was not drinking, “she was just like a normal mother.” ¹⁶¹ William F. McDonald, Esq., was the attorney for Mrs. Dietrich during the time that she was defending against her husband’s claim for part of the realty business. He also prepared a will for her.

He believes that it was signed on October 21, 1968. He testified that as of the time of the settlement with her husband, in November, 1968, Mrs. Dietrich was not under the influence of alcohol. Mr. McDonald testified that when he prepared the will for Mrs. Dietrich in October, 1968, she knew her assets, “I’d say she knew everything she had.” He stated that he had spent “many,