Johnston v. Schmidt

Digges, J., delivered the opinion of the Court. Catherine Schmidt, a widow, died on February 5th, 1924, 'at her residence, 714 Appleton Street, Baltimore, Maryland. At the time of her death she left surviving her three sons, namely, Edward, Walter, and Alfred; the last-named being the appellee. She also left one daughter, Marie Agnes, the appellant, who subsequently married Johnston.

The ⁵⁵⁷ death of the deceased was occasioned by an affection or disease of the jieart, which resulted in her confinement to bed for about five weeks previous to her death. She had executed two wills, the first some time about 1921, and the second on January 30th, 1924, during her last illness. Her husband predeceased her, having died in 1918. During her lifetime she was seised and possessed of a number of pieces of real estate located in Baltimore City, either fee simple or leasehold property.

In 191G, prior to her husband’s death, a trust was created in respect to three pieces of this property, the provisions of the deed of trust being that Catherine Schmidt should be entitled to the income arising therefrom, with power to dispose, either by sale or mortgage, of all or any part of the property included in the deed of trust, and at her death such of it as might then be undisposed of became the property of her four children, share and share alike as tenants in common. In addition to this trust property, she owned other real estate. Previous to her death the title to the Appleton Street or home property had been put in the joint names of herself and daughter as joint tenants, with the right of survivorship; and the title to certain deposits in savings banks and building association at the time of her death stood as follows: “Catherine Schmidt, trustee, in trust for herself and Marie Agnes Schmidt, joint owners, subject to the order of either, the balance at the death of either to belong to the survivor.” According to the provisions of her will, dated January 30th, 1924, she bequeathed to each of her sons a legacy of $500; all the rest and residue of her property, of every kind, of which she died seised and possessed, was devised and bequeathed unto her daughter for and during the term of the daughter’s natural life, with full power and authority to the daughter to sell, mortgage, lease, convey or otherwise dispose of all or any portion of said estate, and appropriate the proceeds of such disposition to her own use; and from and after the death of the daughter one-third of the residue was devised and bequeathed to each of the sons, their heirs, personal representatives and assigns. The will further ⁵⁵⁸ provides that if any of the sons died before the daughter, leaving a child or children, or descendants of a deceased child, then the son’s share was to become the property of his descendants, per stirpes and not per capita; and if any of the sons died before the daughter, without leaving child or lineal descendant, such share of the son so dying was devised and bequeathed to his surviving brothers or brother.

The daughter was appointed executrix by the will, and relieved of the necessity of giving bond, so far as the law would permit. The previous will, i. e., the one executed about three years before the death of the testatrix, was in all its essentials a ■duplicate of the last will, with the single exception that under the .provisions of the first will the legacy bequeathed to each •of the sons was $50 instead of $500 as provided in the second will. The last will also contained a clause revoking all former wills; and, at the time of the execution of the last will, the first will was destroyed, by direction of the testatrix, upon being told by the scrivener that it was then of no force and effect. The last will was probated on February 11th, 1924, and the daughter qualified as executrix and proceeded in the settlement of the estate, in accordance with the terms of the will.

On June 21st, 1924, each of the brothers received from the executrix his respective legacy of $500, and executed a release therefor, reciting: “Whereas, by said will of said Catherine Schmidt, the sum of $500 was bequeathed by her to each of said grantors herein, which legacies the said Marie Agnes Schmidt has paid to said grantors, the receipt whereof is hereby acknowledged, the said Luther Edward Schmidt, Walter L. Schmidt, and Alfred G-. Schmidt do hereby release, acquit, exonerate and discharge the said Marie Agnes Schmidt, her heirs, personal representatives and assigns, of and from all claim or demand for or on account of said legacies, or the payment'thereof, declaring themselves fully satisfied and paid, as aforesaid.” At the same time the daughter conveyed to the three sons her undivided one-fourth interest in the pieces of property covered by the deed of trust, and received a reconveyance from the sons of an estate for ⁵⁵⁹ her life in the whole of the property covered by the deed of trust; the intent and purpose of the exchange of these deeds being to give the daughter the same estate in the property covered by the deed of trust as she took in the properties covered by the will, with the exception that in respect to the properties in the deed of trust the daughter had no power of disposition, whereas in respect to the properties passing under the will she had the right to sell and appropriate the proceeds to her own use. At the time of the mothers death the daughter was forty-four years old, and in September, 1926, she married. Upon rumors of her approaching or intended marriage, the brothers, or at least the appellant and Edward, apparently began to investigate the possibility of successfully caveating their mother’s will, and in November, 1926, after1 the sister’s marriage, they consulted counsel with that end in view.

The advice and information obtained resulted in Alfred filing a caveat to the mother’s will on the day before the three years within which he might caveat would expire. He asked in his petition that issues be sent to a court of law to determine whether or not at the time of the execution of the will his mother was of sound and disposing mind and capable of executing a valid deed or contract; and, second, whether or not the alleged will was produced by undue influence practiced upon her. The sending of these issues was opposed by the executrix on the ground that the acceptance of the legacy and the release which the caveator had signed barred him from thereafter contesting the validity of the will. This was held by the orphans’ court to be a good defense, and the issues were refused.

Erom that action the caveator appealed to this court, resulting in a decision in the case of Schmidt v. Johnston, 154 Md. 125 The opinion of the court in that case was written by Judge Parke, and it was held that the caveator was entitled to have the issues, framed and sent to a court of law on the preliminary question as to whether or not he occupied such a position as would entitle him to caveat the will of his mother, the court saying: “The averments of ⁵⁶⁰ the caveat are sufficient for the caveator to have had the two questions of mental capacity and undue influence presented in the form of issues for'trial by jury, provided the caveator’s receipt of his legacy and his release therefor to the executrix do not prevent. It is well settled that a person cannot accept and reject the same instrument, but must abide his choice of remedies or of rights arising thereout. So, if one is paid his legacy and gives an acquittance to the executor, he ordinarily cannot assail the validity of the will under which he became entitled. But this general rule is subject to the conditions that when the party acted he must have known of the existence of the circumstances which, giving rise to inconsistent rights, made necessary a choice between them, and that he had the intention to elect, either expressly or by acts which implied choice and acquiescence.

Unless, therefore, the legatee here .knew, or was put on inquiry, at the time of the payment of the legacy and of the execution of the release, of the lack of testamentary capacity of his mother when she executed her will, and of the undue influence practiced upon her and constraining her will in its making, the basis of an election is gone.” Oiting previous decisions of this court, and other authorities, to sustain that position. The case was therefore remanded in order that Alfred might have framed, and sent to a court of law, issues to determine whether or not, at the time he received the legacy and executed the release, he knew or was put on notice or inquiry as to the facts and circumstances rendering the will invalid by reason of the incapacity of the testatrix, or by reason of undue influence practiced upon her and constraining her will therein. Subsequently, on May 4th, 1928, the Orphans’ Court of Baltimore City ordered that the following issues be sent to the Superior Court of Baltimore City to be tried before a jury: el. Did Alfred G-.

Schmidt accept the sum of five hundred dollars ($500) provided as a legacy in his favor by the paper writing dated the 30th day of January, 1924, purporting to be the last will and testament of Catherine ⁵⁶¹ Schmidt, deceased, and did he execute a release therefor to the executrix named in said alleged will with full knowledge of the facts and circumstances relating to the mental capacity of said Catherine Schmidt to- execute a valid deed or contract ? “2. Did Alfred G. Schmidt accept the sum of five hundred dollars ($500) provided as a legacy in his favor by the paper writing dated the 30th day of January, 1924, purporting to be the last will and testament of Catherine Schmidt, deceased, and did he execute a release- therefor to the executrix named in said alleged will with full knowledge of the facts and circumstances relating.to the question of undue influence that may have been exercised and practiced upon the said Catherine Schmidt in connection with the execution by her of said alleged will heretofore admitted ro probate by the Orphans’ Court of Baltimore City. “3. Did Alfred G. Schmidt accept the sum of five hundred dollars ($500) provided as a legacy in his favor by the paper writing dated the 30th day of January, 1924, purporting to be the last will and testament of Catherine Schmidt, deceased, and did he execute a release therefor to the executrix named in said alleged will with full knowledge of the amount and character of the estate of said Catherine Schmidt, deceased, and of his legal rights in and to said estate ?” In Schmidt v. Johnston, supra, this court laid down what a person, situated as Alfred is, must show in order for him to occupy the position of caveator of his mother’s will, namely', that he must first show such facts as, standing alone, would make out a prima facie case of mental incapacity or undue influence; second, that he had no knowledge of such facts at the time he received the legacy and executed the release, and, third, that he was not put on notice of the existence of any such facts at that time. The facts which will constitute- a prima facie case in such a situation must- be not only such facts as are admissible in evidence in a caveat proceeding, but must be of sufficient probative force as would be ⁵⁶² a legal basis for a finding by a jury invalidating the will.

In other words, if, on the caveat proceedings, the evidence offered in a preliminary proceeding of this kind, standing alone, would necessitate the granting of a prayer directing a verdict for the defendant on the issues in that case, such facts are not sufficient to establish the would-be caveator’s right to caveat the will. This is the clear and unmistakable effect of Schmidt v. Johnston, supra > and cases therein cited. It will be noted that the issues framed by the orphans’ court in the case now under consideration did not comply with the requirement set out in Schmidt v. Johnston, in that they entirely omit the important factor that, in addition to the caveator’s showing that he had no knowledge, he must also show that he was in such position that even had he exercised ordinary prudence and diligence, he could not have become acquainted with the facts now relied on. He must show not only that he did not know, but that by the exercise of ordinary diligence and prudence he could not have known.

This omission in the issues, we think, is sufficiently supplied by the granted prayers.. The answer of the jury to each of the issues of fact was “no”, sustaining the right of the appellant to occupy the position of a caveator. From such ruling the appeal now before us was taken. The record contains two exceptions, one to the ruling on evidence and the other to the action of the' court on the prayers.

The appellee’s witnesses were himself, his wife, and his brother Edward. The appellee testified that he lived at 121 Appleton Street, Baltimore, almost directly across from his mother; that he had never visited or seen his mother for about three years prior to the day of her death, the reason being, according to him, that his mother and his wife did not get along together; that he first learned of his mother’s extreme illness from the wife of his brother Walter on the morning she died; that he was requested to go there; that he went and saw his mother, who was still living; that, when he went to see her, he stood by her bedside and took her by the hand, and she said, “my boy, my boy”, that is all she said; ⁵⁶³ then, half an hour later she said, “I want you three boys 'to promise me you will look out for your sister”; that he had no knowledge of his mother’s mental condition at the time of the execution of the will, until told by his brother Edward, which information was conveyed to him after his signing the release; that he went to his mother’s funeral, and, the day succeeding, he, together with his brothers and sister, was present at the mother’s home, when the sister produced his mother’s will and he was requested by the others to read it; that he read it aloud, but did not fully understand its meaning and purport; that the kind and quantity of his mother’s estate was not at that time discussed; that at the time the release was signed ho was not told by anybody of the value of said estate; that he obtained this information in 1926, after consulting counsel. The testimony of his wife has no value on the questions here at issue. The testimony of the brother Edward is to the effect that previous to her last illness he had always made it a point to visit his mother at least once a week, except when he might be away on vacation during the summer; that her last illness continued for about five weeks; that, beginning three weeks before her death, for the first week he spent about two hours every other night with her, and the last two weeks of her life he visited her each night for about the same period; that she was well mentally and physically until the illness which resulted in her death; that about two weeks before his mother’s death, on the occasion of one of his visits, the witness had a “terrible cold”, “and she did whisper to me, she said or whispered to me, “Take care of yourself, because I don’t want you to die before I die,’ she told me to take care of myself”; that during the last two weeks of his mother’s illness his mother could do nothing for herself, and his sister had to do everything that was possible, wash her, give her meals and medicine, and attend to nature’s wants; there was no one else at the house to do it. “Q. Will you tell us her condition just prior to January 30th ?

A. Well, from the two weeks that I had been going ⁵⁶⁴ down there my mother was failing very rapidly every d'ay; ’ my sister made a remark to me about eight or ten days before that her nails- — she said, ‘Did you notice how blue her nails were starting to get ?’ And she just laid there in a stupor like. She told me not to talk much to her because it would excite her. Q. How long would she lay in a stupor ? A. I would say about eight to ten days.

Q. How long was she in bed before she died? How many weeks? A. About five weeks. Q. Did you talk to her between January 28th and 29th and the day of her death, February 5th?

A. Ho, sir. Q. Why? A. Because my sister said not to talk to her; not to make her talk. Q. Did she talk to you?

A. Ho, sir. Q. You referred to her being in a stupor; Will you tell us whether or not that condition existed on January 29th-and 30th, which was just a few days before her death? A. Yes, sir. (Objected to.) (The Court): When he mentioned she was in a stupor--- (Witness) : I said about two weeks she was in that condition that she couldn’t talk.

Q. (By the Court): Ypu mean when you saw her? A. Yes, sir; in the evening when I would go down. Q. During the two weeks you mean ?

A. During the last two weeks of her life. Q. (By Mr. Ward) : How, I will ask you to tell His Honor whether or not your brother Alfred visited your mother’s home from say 1922— he said 1921 or 1922 — to 1924 when she died? A. Yes, sir.

Q. Do you know? Did he visit her? A. He hadn’t visited her for a couple years. Q. Will you tell the jury of your observation of your mother within the last two or three weeks of her illness, particularly within the last eight or ten days when you say she was in a stupor?

A. The last ten days- Q. Wait a minute, let me finish the question. What you saw and observed of her condition as you described it. Will you tell us whether or not on January 30th, 1924, in your opinion, she was competent to make a last will and testament or a valid deed or contract ? ' A. Ho, sir.” This last question was objected to, and after argument, the objection was overruled and exception granted. The question was then repeated by the reporter and the witness answered that ⁵⁶⁵ he “would say positively no.” Whereupon a motion was made to strike out the answer, which motion was overruled and exception noted.

The witness further testified that he did not communicate the condition of his mother as of January 30th, 1924, to his brother Alfred until January, 1927; he was positive he had never told Alfred prior to.that time; that he procured the services of counsel for his brother. On cross-examination he testified that, on the day of his mother’s death, when his brother Alfred arrived, she looked at Alfred, recognized him, and told him it was “too late”; that she patted his hand and said, “my boy, my boy”; that later she told the three boys, “I want you all to promise me that you will look after your sister.” It will thus be seen that the first exception is to allowing Edward to express an opinion as to the mental capacity of his mother to execute a will or make a valid deed or contract on January 30th, 1924, and to the court’s refusal to strike out the answer. This question has been passed upon by this court many times under varying circumstances, beginning in the case of Townshend v. Townshend, 7 Gill, 10 , and con-' tained in almost every report down to and including the case of Cronin v. Kimball, 156 Md. 489 .