Krouse v. Krouse

ALPERT, Judge. Allen J. Krouse, III, appellee, successfully challenged testator’s purported Last Will and Testament as having ³⁷¹ been procured by fraud and/or undue influence. John M. Krouse, appellant, a primary beneficiary under the purported will, subsequently appealed to this court and correspondingly asks us to address the following five questions: I. Did the trial court err when it refused to give an instruction that clear and convincing proof was necessary to establish the fraud alleged?

II

Did the trial court err when it failed to direct judgment for the defendant/caveatee John at the close of the evidence in the case?

III

Did the trial court err in the instructions given, including preponderance of the evidence and insane delusion?

IV

Did the trial court err when it permitted testimony, over objection, of “Prior Consistent Statements”? V. Did the trial court err when its bias toward John and his wife were exhibited in the presence of the jury? We answer each of the questions in the negative, and therefore affirm the trial court. Background This case concerns a will that was successfully contested.

And, as perhaps with most will cases, the major players are all related to one another. We therefore begin by identifying the members of the family who are relevant to the case sub judice. During his lifetime the decedent and patriarch, Allen J. Krouse, Sr. (“Senior”), fathered two sons through his wife, the late Anna Krouse (“Anna”): son # 1, the late Allen J. Krouse, Jr. (“Junior”), and son # 2, appellant/caveatee John M. Krouse (“John”). Junior, upon his passing, was — in turn — survived by three adult children, including appellee/caveator Allen J. Krouse III (“Allen III”) and Allen Ill’s sister, Christine Krouse Schwartz (“Christine”).

John and his wife, Lorraine Krouse (“Lorraine”), have five adult children as a result of their marriage. As indicated, the ³⁷² primary parties to this litigation are John {i.e., Senior’s son # 2) and Allen III {i.e., Senior’s grandson through son # 1). The facts leading up to this litigation may be summarized as follows: Senior was born on May 20, 1904. With the exception of a brief period of time in the late 1940’s when he was in private practice, Senior, an attorney, spent his entire career as a prosecutor with the United States Department of Justice.

He eventually retired sometime during the 1960’s to a monthly retirement income of approximately $2,000. Senior and Anna, his wife, lived together for many years at their marital home in Bethesda, Maryland. When Anna died in October, 1982, Senior continued to live at the residence until his own death on or about November 13, 1989. This litigation concerns events that occurred during that period of time when Senior lived alone at the former marital residence, i.e., between October, 1982, and November 13, 1989.

The record reflects that beginning sometime in late 1983 or early 1984, and continuing up through late 1986, Junior assisted his father (Senior) in the management of Senior’s checking account. Specifically, Junior would “help” Senior pay his (Senior’s) bills by typing out the checks and then presenting them to Senior for his signature. In September, 1986, several of these checks bounced, and, as a result, Senior sought to review his checking account ledger. At some point Lorraine (John’s wife and Junior’s sister-in-law) began assisting Senior in examining the check-bouncing situation and, in the process, she determined two interesting things: (1) the cause of the bounced checks was a record-keeping error, i.e., one of Senior’s retirement income deposits had been mistakenly credited twice, and (2) the checking account ledger during the period of Junior’s assistance revealed that more than $19,900 worth of typed-checks had been made payable directly to Junior.

There was no evidence that the overdrafts were caused by, or were in any way related to, the checks that had been made payable to Junior; nor was there any direct evidence pre ³⁷³ sented that indicated that Junior had procured the $19,900 through illegal, fraudulent or otherwise unseemly ways. That notwithstanding, the record reflects that Senior, after he was presented with these two pieces of interesting information, became convinced that Junior, his son, had been stealing from him. There are conflicting allegations, however, as to whether (or to what degree) Lorraine and John actively encouraged Senior to believe that Junior was a thief. Nevertheless, the record reflects that Lorraine herself believed (and indeed still believes to this day) that Junior was stealing from Senior, and the record further reflects that Lorraine indicated this belief to several individuals, including two of Junior’s children, namely, Allen III (appellee herein) and his sister, Christine.

Additionally, the record further reflects that after the bounced-checks situation came to light, Lorraine and John themselves began spending a great deal of time “assisting” Senior. For example, on November 10, 1986, (according to John’s own testimony) Lorraine and John “assisted” Senior by taking him to State National Bank and Perpetual American Bank to remove Junior’s name from several of Senior’s bank accounts. The record also reflects that, on that date, Senior executed Powers of Attorney in favor of John. In mid-November, 1986, Lorraine “assisted” Senior by typing for him a Last Will and Testament, and then further “assisted” Senior by driving him to the home of Vincent and Holly Hecker (together, the “Heckers”) where this purported will was executed and attested.

On or about January 7, 1987, Junior died unexpectedly. The record reflects that, during Junior’s wake, Lorraine and John indicated to Allen III that they (Lorraine and John) intended to have Senior make a new will. Subsequently, (the record reflects,) Lorraine and John reiterated a similar intention to Allen Ill’s sister, Christine. In accordance with these stated intentions, the record reflects that on or about March 22, 1987, at Senior’s own home, Lorraine typed for Senior another purported Last Will and Testament.

It was apparently later that day, ³⁷⁴ March 22, 1987, that John and Lorraine again drove Senior to the Heckers’ home, where this document was signed and executed. The record reflects that Junior was not told about the existence and/or execution of the November, 1986 will, nor were his immediate family ever told about either the November, 1986 or the March 22, 1987 purported wills. On or about November 13, 1989, Senior died. Shortly thereafter, the Orphans’ Court for Montgomery County (hereinafter, the “Orphans’ Court”) (1) appointed John as the Personal Representative of Senior’s estate, and (2) admitted to administrative probate the March 22, 1987 purported will.

Thereafter, Allen III timely filed a “Petition to Caveat Will.” Pursuant thereto, and by Consent Order dated October 23, 1990, the Orphans’ Court transmitted six “issues” to the Circuit Court for Montgomery County (hereinafter, the “Circuit Court”) 1 . On November 5, 1991, a jury trial (Honorable J. James McKenna, presiding) on the caveat commenced. The record reflects that, at the close of all the evidence, the trial court, inter alia, instructed the jury as follows: I will tell you that in this instance as to each of these issues, the burden is on the Plaintiff [Allen III], and the burden must — the burden is that of what we call a preponderance of the evidence. * * * To prove a preponderance of the evidence means to prove that something is more likely so than not so. * * * A will is not valid if, at the time of its execution, the maker of the will suffered from an insane delusion. And that insane delusion entered into and substantially effected his judgment concerning the contents of the will and/or his mental processes in making the will. * * * ³⁷⁵ Let me discuss now undue influence, which is one of the things that you will have on here.

A will is not valid if it was the result of or was obtained by the use of undue influence imposed on the maker of the will. Undue influence means that domination and influence ... were exercised by another person on the maker of the will to such an extent that the maker’s free choice was destroyed, and he was prevented from exercising his own free judgment and choice. * * * Now, let me talk about fraud. A will is not valid if it was the result of or was obtained by the use of fraud practiced on the maker of the will. Fraud means that the maker of the will did not know he was signing a will or was misled or deceived as to the provisions of the will.

That is[,] a false representation was made to the maker of the will by another person who knew the representation was false, and who made the representation with the intent of deceiving the maker of the will. At the time the will was executed, the false representation in fact deceived the maker of the will and effected his judgment for choice. * * * Fraud will often occur when one of the beneficiaries under a will makes a false statement to the testator to induce the execution of the will in a certain manner. Fraud may take the form of false accusations which alienate the testator from the natural objects of his bounty. After the jury had been excused from the courtroom, defendant/appellant John renewed a motion for judgment in his favor, which the court — in no uncertain terms — denied.

Subsequently, the jury returned its verdict in the form of Answers To Issues. The jury specifically found as follows: Question 1: Were the contents of the said paper writing, dated the 22nd day of March, 1987, purporting to be the Last Will and Testament of Allen J. Krouse, read to or by him or known to him at or before the time of the alleged execution of said paper writing? ... Yes. * * * ³⁷⁶ (Therefore the jury resolved Question 1 in favor of appellant John, and against appellee Allen III.) Question 2: Was the said writing, ... dated March 22, 1987, and purporting to be the Last Will and Testament of Allen J. Krouse, executed by him when he was legally competent to make a will? ... Yes.

(Therefore the jury also resolved Question 2 in favor of appellant John, and against appellee Allen III.) Question 3: Was the alleged execution of the paper writing, dated March 22, 1987, purporting to be the Last Will and Testament of Allen J. Krouse, procured by undue influence exercised and practiced upon by Allen J. Krouse? ... Yes. (Therefore the jury resolved Question 3 in favor of appellee Allen III, and against appellant John.) Question 4: Was the alleged execution of the paper writing, dated March 22, 1987, purporting to be the Last Will and Testament of Allen J. Krouse, procured by fraud exercised and practiced upon by Allen J. Krouse? ... Yes.

(Therefore the jury also resolved Question 4 in favor of appellee Allen III, and against appellant John.) Question 5: Is the said paper writing, dated the 22nd day of March, 1987, the Last Will and Testament of Allen J. Krouse? ... No. (Therefore the jury also resolved Question 5 in favor of appellee Allen III, and against appellant John.) A timely appeal to this court followed, wherein John has asked us to resolve the five questions heretofore stated (which shall be addressed in turn). Law I. Did the trial court err when it refused to give an instruction that clear and convincing proof was necessary to establish the fraud alleged? With respect to this question, several issues are beyond dispute.

First, the trial court instructed the jury ³⁷⁷ that, with respect to each of issues in the case (including the question as to fraud), the plaintiffs Allen Ill’s) burden of proof was by a preponderance of the evidence. Second, the burden of proof in a civil cause of action based on fraud (as distinguished from a will contest based on fraud) is by clear and convincing evidence. See, e.g., Weisman v. Connors, 76 Md.App. 488, 502 , 547 A.2d 636 (1988), cert. denied, 314 Md. 497 , 551 A.2d 868 (1989). Third, John essentially contends that the burdens of proof in a civil action based on fraud, and in a will contest based on fraud, are the same, and therefore the trial court erred by giving the “preponderance” instruction.

Fourth, in so contending, John has raised a pure issue of law. And finally, fifth, with respect to this issue, this case may almost be regarded as a case of first impression, in that there has been no clear statement of the law in over a hundred years. Indeed, the last time a Maryland appellate court was asked to resolve an issue concerning the burden of proof in a will caveat based on fraud, the year was 1879, and the venerable case was Griffith v. Diffenderffer, 50 Md. 466 (1879). In Griffith , the plaintiffs/caveators, inter alia, prayed 4. [t]he [trial] Court to instruct the jury, that while fraud is not to be presumed as set forth in defendants’ fifth prayer, yet the jury may infer it from all the facts and circumstances of the case, and that no higher degree of proof is required.to establish fraud than to establish other facts that require to be proved.

But the jury must be satisfied from all the facts and circumstances offered in evidence, that fraud was used to procure the will[.] Id. at 475-76 (emphasis added). The trial court granted plaintiffs’ prayer, and thus did so instruct the jury. Accordingly, the defendants/caveatees appealed alleging that the trial court’s instruction was in error. In this regard, therefore, the Griffith case is analogous to the case sub judice in that there, as here, (1) the trial court instructed the jury as to a preponderance of the evidence standard in a will ³⁷⁸ caveat case, and (2) the caveatees alleged such an instruction to be in error.

In ruling on the issue, the Court of Appeals, in Griffith , used language that was both admittedly succinct and dis-positive of the first issue in the case at bar: “The plaintiffs’ fourth, fifth and sixth prayers announce well-settled principles, and there was no error in granting them.” Id. at 489 . As indicated above, the so-designated “fourth ... prayer[ ]” concerned the jury instruction as to finding fraud by a preponderance of the evidence. As the intervening one hundred thirteen-plus years have not seen this principle set forth in Griffith modified, nor overruled, it must today still be seen as valid: in a will caveat, no higher degree of proof is required to establish fraud than to establish other facts that require to be proved. In other words, in a will caveat, the caveator need only prove fraud by a preponderance of the evidence.

Indeed, rather than modifying this principle, the Court of Appeals has cited favorably Griffith’s holding with respect to the burden of proof: “The burden of proof is the caveator’s when fraud is alleged, Sykes, § 102 at 155, Griffith v. Diffenderffer, 50 Md. 466, 482 (1879), as it is when undue influence is charged.” See, e.g., Friedel v. Blechman, 250 Md. 270, 285-86 , 242 A.2d 103 (1968) (other citations omitted). Our holding (vis-a-vis the preponderance standard in will caveat cases based on fraud) is further supported by the following historical analysis of the degree of proof in standard civil fraud cases. As indicated above, there is no question that the burden of proof in a civil cause of action based on fraud (as distinguished from a will contest based on fraud) is currently recognized as being by clear and convincing evidence. See, e.g., Weisman, supra, 76 Md.App. at 502 , 547 A.2d 636 .

The historical lineage of this degree of proof may be traced back through, e.g., the following line of cases: First Nat’l Bank v. U.S.F. & G., Co., 275 Md. 400, 411 , 340 A.2d 275 (1975) (“When fraud ... ³⁷⁹ is imputed, something more than a mere preponderance of evidence must be produced; the proof must be ‘clear and satisfactory’ and be of such a character as to appeal strongly to the conscience of the court”); Peurifoy v. Congressional Motors, 254 Md. 501, 517 , 255 A.2d 332 (1969) (“[P]roof of actual fraud [must] be clear and convincing and such as will appeal strongly to the conscience of the Court [.]”); Bachrach v. United Cooperative, 181 Md. 315, 320-21 , 29 A.2d 822 (1943) (“Where a foreclosure sale has been finally ratified in accordance with established chancery practice, and the sale is impeached on the ground of fraud, the alleged acts of fraud must be clearly established by proof and must be of such a character as to appeal strongly to the conscience of the court, before the sale will be set aside”); Rent-A-Car Co. v. Fire Ins. Co., 161 Md. 249, 268 , 156 A. 847 (1931) (“When fraud or criminal conduct is imputed the decisions frequently declare that something more than a mere preponderance of evidence must be produced, and that the proof must be clear and satisfactory”); Thompson v. Williams, 100 Md. 195, 199 , 60 A. 26 (1905) (“When a deed is assailed for fraud, [various circumstances must] furnish strong and satisfactory evidence of the existence of fraud[.]”); and, Corner v. Pendleton, 8 Md. 337, 347 (1849) (“[In a standard civil fraud case, depending upon circumstantial evidence, and involving moral delinquency, not to say criminal offense, ... we think the inference should be so strong as to exclude the presumption that [fraud did not occur]. ” 2 ). In tracing the lineage of the “clear and convincing” standard in standard civil fraud cases, one thing therefore seems clear: the language chosen by the court to express the higher standard (than mere preponderance of the evi ³⁸⁰ dence) has varied both over time and by jurisdiction. As has been noted, It has been variously stated, ... that in order to establish fraud [in a civil case] the evidence must be satisfactory, or clear and satisfactory, or clear and convincing, or clear, cogent, and convincing, or clear, satisfactory, and convincing, or strong and decisive, or strong, clear, positive, and convincing, or clear, precise, and indubitable, or conclusive, or clear and conclusive, or clear and positive, or explicit, clear, and conclusive, or so clear and convincing as to satisfy the jury or the court sitting without a jury, or clear and decisive, or clear, satisfactory, and persuasive, or clear, distinct, and certain, or clear, satisfactory, and conclusive, or clear, unequivocal, and convincing, or testimony of the strongest and most cogent character, or clear and satisfactory to an extent in proportion to the seriousness of the fraud charged.

Again, it is said that fraud alleged in a civil case must clearly appear, or be clearly shown, or clearly proved, or clearly established, or clearly and fully established, or distinctly proved, or clearly and distinctly proved, or clearly, distinctly, and fully proved, or established by the most satisfactory evidence, or evidence so clear and strong as to produce satisfactory conviction and lead the mind of the court to the conclusion that a fraud has been perpetrated, or that a clear case should be made out and that a bare preponderance of evidence which at the same time is vague and ambiguous is not sufficient. 37 Am.Jur.2d Fraud and Deceit § 468 (1968) (quoting the “clear and convincing” standards used by various jurisdictions over the course of time; actual citations omitted). It is significant to note that the precursor of the “clear and convincing” standard in civil fraud cases (i.e., proof by more than a preponderance of the evidence), as is reflected by the line of cases cited above, pre-dates the Court of Appeals’ holding in Griffith . Consequently, it follows that the Court in Griffith was aware of the higher standard applicable to civil fraud cases, when it nonetheless con ³⁸¹ firmed that the standard for proving fraud in will caveat cases was by the comparably lower “preponderance of the evidence.” It is significant to note that appellant John has failed to cite any authority for his contention that the standard of proof in a will caveat should be by clear and convincing evidence. Instead, John simply (1) acknowledges the existence of Griffith , (2) acknowledges that Phillip Sykes, in his treatise Contest of Wills in Maryland, quotes the Griffith case favorably but “without other authority,” and (3) baldly asserts that Maryland Civil Pattern Jury Instruction (“MCPJI”) I:8b is “the standard instruction where fraud is alleged.” Even by its terms, however, MCPJI I:8b is inapposite to the case at bar.

MCPJI I:8b is, by its terms, applicable only where “The [moving party] has asserted the [civil] claim of fraud in [the] case [at issue].” (Emphasis added.) In contrast, the jury instruction concerning alleged fraud in will contest case neither mentions, nor incorporates by reference, the civil fraud standard. See MCPJI 29:5. Indeed, the record reflects, and John does not dispute, that the trial court’s instruction as to fraud complied with all of the requirements set forth in MCPJI 29:5. Thus, we now affirm the lower court and simultaneously uphold the standard set forth in Griffith .

II

Did the trial court err when it failed to direct judgment for the defendant/caveatee John at the close of the evidence in the case? At the close of Allen Ill’s case, and again at the close of the entire case (after the jury had been excused from the courtroom), John moved for judgment in his favor. John’s motion was based on his contention that “there is no evidence, not just slight evidence, but no evidence” that supported Allen Ill’s caveat. The trial court’s denial of this motion was quick and definitive: “You[, John,] are absolutely wrong.

There is a ³⁸² plethora of evidence on that score.” The court then went on to present a summary, which comprised three and one-half pages of typed trial transcript, of the evidence supported Allen Ill’s caveat. Notwithstanding the court’s recitation of the substantial evidence supported Allen Ill’s caveat, John now argues that the court’s denial of his motion for judgment was in error. We disagree. Pursuant to Md. Rule 2-519(b), “When a motion for judgment is made [at the close of all the evidence, as here], the court shall consider all evidence and inferences