Kennedy v. Dickey

Fowler, J., delivered the opinion of the Court. The question presented by this appeal is whether there is any legally sufficient evidence to be found in the record to show that the late Agnes Dickey was induced to execute her will by undue influence. We have nothing to add to what has been said in regard to the recognized necessity’ of protecting the statutory right of ¹⁵³ testamentary disposition, provided this right be exercised according to well recognized rules. It is idle, however, to concede the right, and then by a strained and unnatural application of well settled rules prevent its exercise.

In the case now before us there were six issues sent from the Orphans’ Court of Baltimore City to the Baltimore City Court. The first issue was, whether the testatrix, at the time of the execution of her will was of sound and disposing mind and capable of executing a valid deed or contract; the second was, whether at the time she executed the will, she was aware of its contents and effect; the third was whether the will was executed according to the forms required by law; the fourth, being the only one directly involved in this appeal, was whether she was induced to execute her will by undue influence; the fifth, was she induced to execute her will by fraud, and the sixth and last, whether the will in question was the last will and testament of Mrs. Dickey. These issues were tried by a jury in the Baltimore City Court. At the close of the testimony of both sides the plaintiffs (caveators) offered two prayers, the first of which was granted and the second refused.

The defendants (caveatees) offered nine prayers (the seventh having been withdrawn) all of which were granted. No exception has been taken by the plaintiff to the rulings of the Court upon these prayers — except to the refusal of their second and the granting of the defendant’s second. The plaintiff’s second prayer asked to have submitted to the jury the question of undue influence, but by the defendants second prayer they were instructed that no legally sufficient evidence of such influence had been offered— and they were similarly instructed on the question of flaud. On all the other issues the jury found for the defendants: that is to say, they found first that the testatrix at the time she executed her will was of sound and disposing mind; second, that when she executed her will she was aware of its contents and effect; third, that the will was executed in due form (this was conceded by the plaintiffs); fourth, under the instructions by the Court that there was no undue influence exercised; fifth, ¹⁵⁴ also under instruction by the Court, that there was no fraud, and sixth that the will before us is the last will and testament of Mrs. Dickey.

It also follows from the finding of the jury on the first issue, namely, that she was of sound and disposing mind and memory as required by law, that at the time of executing her will she understood the nature of the business she was then engaged in, recollected the property she meant to dispose of and the persons to whom she meant to give it, and understood the manner in which she disposed of it, and the relative claims of the different persons who were or might be the objects of her bounty. They were so instructed by the defendants fourth prayer. But the only rulings of the Court excepted to by the plaintiffs are the refusal of their second and the granting of the second of the defendants, the result of which rulings is that so far as the question of undue influence is concerned, the case was taken from the jury, and they were told by the Court that there was no legally sufficient evidence of such influence. The findings of the jury therefore upon all the issues, and the rulings of the Court on the question of undue influence being against the plaintiffs they have appealed.

The first question involved in the main inquiry is what constitutes undue influence? and, second, what evidence is to be resorted to in order to establish such influence; third, is the evidehce contained in this record legally sufficient to show that the will in controversy is the result of undue influence as understood and defined by the law? i. From the time of Davis v. Calvert, 5 G. & J. 302 , to the present day, this Court has been consistent in defining what constitutes undue influence. In the leading case just cited the doctrine is thus stated: “Honest and moderate intercession or persuasion, unaccompanied with fraud or deceit, and where the testator has not been threatened or put to fear by the flatterer or persuader” will not be sufficient. Again, quoting from the same case “A testator should enjoy full liberty and freedom in the making of his will, and possess the power to withstand all contradiction and control.

That degree, therefore, of importunity or undue influence which deprives a testator of his ¹⁵⁵ free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufficient to invalidate it.” As a result of this general doctrine it has also been held that while the allegation of undue influence concedes such testamentary capacity as is required by law, yet the character and degree of the influence exerted involve necessarily to some extent, the physical and mental condition of ths testator at the time of the execution of the will. “The influence that would be unlawful if exerted upon one advanced in years and in declining health, of a weak and vacillating will might be altogether unavailing with one in robust health and of a firm and robust purpose. Any evidence, therefore, which tends to prove the precise mental condition of the testator, and to place him before the jury as he was when the will was made, is admissible.” Griffith v. Diffenderffer, 50 Md. 480 . While therefore, testamentary capacity is to be assumed in discussing undue influence Stirling v. Stirling, 64 Md. 151 , yet ‘ ‘what degree of such influence will vitiate a will depends much upon the bodily health and mental vigor of the testator, for that which would overwhelm a mind weakened by sickness, dissipation or age, might prove no influence at all to one of strong mind in the vigor of life.” Woerner on Administrators, sec 31. Again in the case of Hiss v. Weik, 78 Md. 446 , the present Chief Judge says that undue influence “is closely allied to and in many of its aspects strongly resembles actual fraud, and like the latter when most cunningly executed, is exceedingly difficult to unmask.” In the case j ust cited and in that of the more recent case of Somers v. McCready, 96 Md. 438 , the doctriné of undue influence and the rules which should govern its application are so fully and so clearly announced that we would unnecessarily extend this opinion by a reference to our many decisions to the same effect.

The principles thus declared háve been the settled law of this State for many years, and we are not called upon, therefore, to fortify them either by argument or the citation of authorities. ¹⁵⁶ Indeed this controversy does not involve any real difference of opinion as to what constitutes undue influence. Nor as to the second question we are to consider, that is, what evidence is to be resorted to in order to establish undue influence; for counsel on both sides substantially agree as to the sources from which such evidence must be obtained. These sources are first the testimony contained in the entire record, for there is no exception or objection to any part of it; and second the character of the will. In Hiss v. Weik, supra, it is said : ‘ ‘The results accomplished in a given case, the divergence of those results from the course which would ordinarily and naturally be looked for, the situation of the party taking benefits under the will towards the person who has executed it, and their antecedent relations to and dealings with each other, the legitimate but unrecognized claims of others upon the bounty of the testator and their dependence upon him, the instincts of justice of which every unbiased mind is sensible, the natural ties of parental affection, together with all the circumstances surrounding the transaction under investigation, and the inferences legitimately deducible from them, often furnish, in the .absence of direct evidence (which from the very nature and secrecy of the wrong itself, is rarely obtainable), ample .ground for the conclusion that undue influence has been used to accomplish an end which may be gross in its injustice, and whose very existence cannot be satifactorily accounted for except upon the hypothesis that undue influence has produced it.” We come then to the real question and that is whether there is to be found in the record in this case any legally sufficient evidence to show that the late Mrs. Dickey was induced to execute her will by undue influence exercised by her two sons.

We say her two sons, for they alone are charged with this wrong. If they are innocent it is not contended that any wrong in this respect was done by any other person. While it has been frequently said “that on a question depending, as this does, entirely upon the testimony, no good result can possibly arise from a recapitulation of the evidence” ¹⁵⁷ and “that it is enough for the Court to announce the conclusion it arrives at,” Somers v. McCready, supra, and cases there cited, yet this rule has been more honored in the breach than in the observance, and we will, therefore, in this instance honor it in the same manner, and refer as briefly as may be to the evidence so that we may determine whether there was error in taking the case from the jury on the question of undue influence. Mrs. Agnes Dickey, the testatrix, was eighty-four years of age at the time she executed her will on the nth May, 1900.

She died in March, 1903, eighty-seven years old. Her husband, the late William J. Dickey, executed his will 19th May, 1896, and died August of the same year. The testatrix and her husband had four children, two daughters, Sarah and Lizzie A., and two sons, George A. and William A. Lizzie married Charles W. Dorsey in December, 1872, and she died in 1873, a few days after the birth of her first child, who is now Lizzie Kennedy. She' is one of the plaintiffs.

Sarah married Chas. W. Dorsey in 1877 and of this marriage there was one child, Edgar A. Dorsey, and he is the other and remaining plaintiff and grandchild of the testatrix. So that at the time she made her will and at the time of her death the two sons and the two grandchildren of the testatrix just mentioned were alive. To her grandson she bequeathed two thousand dollars and to her granddaughter, Lizzie A. Kennedy, five thousand dollars.

All the rest and residue of her estate, with the exception of about $20,000 which was bequeathed to several legatees, she gave to her two sons absolutely. The result was that they received each about $210,000, and her two grandchildren received as follows: Mrs. Kennedy and her children $9,000, and Edgar A. Dorsey, $2,000. According to the calculation made by the counsel for plaintiffs, if the testatrix had made an equal division of her estate among her sons and her grandchildren, the latter taking the place of their deceased parents, Mrs. Kennedy and Edgar A. Dorsey would have each received, not counting the $20,000 outside legacies, $111,250. Thus is shown what the plaintiffs contend is an ¹⁵⁸ enormous disparity in the legacies — so great as to demand some explanation; and it is said that such a result is so shocking to a proper sense of justice that “it can only be satisfactorily accounted for upon the hypothesis that in making her will she was not a free agent, but was dominated and controlled by her sons.” Conceding, as is clearly shown by the testimony, that the testatrix was much attached to both of her grandchildren, but particularly so to Mrs. Kennedy, it would, indeed, seem cruel and unjust not to have given them a larger share of her estate of nearly half a million dollars — if they had been at all dependent upon her bounty.

But they were not, and she, of course, was fully aware of that fact. The late William J. Dickey was a successful manufacturer, merchant and banker. He left a fortune of 'a million dollars which by his will was bequeated to trustees to hold for seven years from the date of his death, the income to be paid to his wife and children in equal proportions fully authorizing his trustees, during the seven years, to continue the business in which he was engaged and to manage his estate. At the end of that period the trustees were directed to divide his estate among his wife, children and grandchild, Mrs. Dorsey, Edgar A. Dorsey’s mother being alive at that time.

It appears from the testimony that the trustees named in Mr. Dickey’s will, namely his two sons, George A. and William A. and his wife (the testatrix whose will is now before us), continued the business as directed for seven years after the death of Mr. Dickey, and the two grandchildren, Mrs. Kennedy and