Livingston v. Safe Deposit & Trust Co.

⁴⁹⁴ Oí’S’utt, J., delivered the opinion of the Court. Mrs. Catherine C. Lanahan, having on March 21st, 1912, executed in due form a last will and testament, and on May 29th, 1914, July 16th, 1918, and July 14th, 1919, respectively, codicils one, two and three thereto-, died on February 13th, 1920. Jerome Lloyd Unduch, a nephew of the testatrix, to whom in that will she had bequeathed $25,000, died on February 4th, 1920. The question presented by this appeal is whether the legacy to him lapsed.

The legatee left to survive him a widow, now Aninha C. Livingston, and two infant children, William Lloyd Unduch and Donald Carver Unduch, the- appellants in this case, and in respect to that question, they now contend that the legacy to Jerome Lloyd Unduch did not lapse, because (1) it was saved by the statute, chapter 37, Acts 1910, since amended by chapter 202, Acts 1920, which prevented the lapsing of legacies to persons dying in the lifetime of the testator, and (2) if the statute did not apply, nevertheless the legacy did not lapse at common law, because the testatrix manifested a contrary intention, and at common law such an intention must be given effect. On the other hand, the appellee, the Safe Deposit & Trust Company of Baltimore, trustee under the said will and the several codicils thereto, contends, (1) that from the death of the legatee until the death of the textatrix she was mentally incompetent to cancel or alter her will, and that therefore by the express terms of the statute it did not apply to or affect the legacy, and (2) that at common law a legacy to one who died in the lifetime of a testator lapsed, unless the testator expressed in the will a specific intent to the contrary, that in this case no such intent can be inferred from any language to be found in the will or the several codicils, and that therefore the legacy to Jerome Lloyd Unduch lapsed and fell into the residuary estate of the testatrix. Mrs. Lanahan’s will, which was probated in the Orphans’ Court of Baltimore County on February 19th, 1920, is divided into two parts. In the first part, after providing for a number of specific trusts, the testatrix left pecuniary lega ⁴⁹⁵ cíes to various persons natural and corporate, and among others $25,000 to Jerome Lloyd ITnduch.

The second part of the will provides for the disposition of the residuary estate. Finally it appointed Hon. 'N. Charles Burke executor and also trustee to execute the trusts created by the will, and, in the event of his death, the Safe Deposit & Trust Company of Baltimore. Judg’e Burke in due course qualified as executor, and later filed in the Circuit Court for Baltimore County a petition asking that court to assume jurisdiction of the trusts created by the will, which was done, and he thereupon, by filing his approved bond therein, qualified in that court as trustee of that estate. But neither as executor nor as trustee did he pay the personal representatives or next of kin of Jerome Lloyd Hnduch the legacy of $25,000 bequeathed to him.

And on June 26th, 1928, the appellee, which, at his death, under the terms of the will, succeeded Judge Burke as trustee, filed in the Circuit Court, for Baltimore County a petition, in which among other things it alleged: “That by the last wiil and testament of the said Catherine C. Lanahan the sum of $25,000 was bequeathed to Jerome Lloyd Unduch. That there is no record of the payment of said legacy and the information of your petitioner is that said legacy was not in fact paid because the late FÍ. Charles Burke, the executor under said last will and testament, considered that said legacy had lapsed under the provisions of chapter 37 of the Acts of 1910, which was then in force, for the reason that, before the death of the said legatee, which occurred on February 4, 1920, and continuously thereafter until the time of her death, he, the said Fi. Charles Burke, considered that the said Catherine C. Lanahan, the testatrix, was by reason of her last illness incompetent to cancel, revoke, annul, obliterate or alter said last will and testament and the codicils thereto.

That the said Jerome Lloyd Unduch left surviving him his said two infant children and his widow, who since remarried and who is the defendant, Aninha O. Livingston.” And it prayed “that the action of said FT. Charles Burke, executor, in not paying the said legacy of $25,000 bequeathed to Jerome Lloyd Unduch, be ratified and ⁴⁹⁶ confirmed by this honorable court.” Upon that petition, after testimony and a hearing, the court decreed “that the legacy of $25,000 bequeathed by said will to Jerome Lloyd Unduch lapsed and therefore the action of N. Charles Burke, executor of said last will and testament and codicils thereto, in not paying said legacy be and the same is hereby ratified and confirmed.” From that decree this appeal was taken. Considering first the application of the statute, there can be no possible doubt that if, between the death of the legatee and the death of Mrs. Lanahan, she was in fact continuously mentally incompetent to execute a valid deed or contract, the statute (chapter 37, Acts 1910), did not apply to the facts of this case. That act, which at the time of the death of Mrs. Lanahan was in full force and effect, provided: “No devise, legacy or bequest shall lapse or fail of taking effect by reason of the death of any devisee or legatee (actually and specifically named as devisee or legatee, or who is or shall be mentioned, described or in any manner referred to, or designated or identified as devisee or legatee in any will, testament or codicil) in the lifetime of the testator, except as hereinafter provided, but every such devise, legacy or bequest shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator; provided, however, that this act shall not apply to the last will, testament or codicil of any person dying after the passage of this act, where the maker of said last will, testament or codicil, after the execution thereof and before the death of such devisee or legatee, shall become insane or otherwise incompetent to cancel, revoke, annul, obliterate or alter said last will, testament or codicil.” It was repealed and reenacted with amendments by chapter 202 of the Acts of 1920 so as to strike from it the proviso, but, as the rights of all parties to this appeal became fixed and vested at a point of time certainly not later than the death of the testator, they must be determined in accordance with the law as it existed then, and ⁴⁹⁷ not in accordance with the law as it existed at some later period.

Bartlett v. Ligon, 135 Md. 623 ; Hemsley v. Hol lingsworth, 119 Md. 431 ; 36 Cyc. 1205, 1210; Alberston v. Landon, 42 Conn. 209 . And as chapter 37 of the Acts of 1910 expressly provided that it should not apply to “the last will, testament or codicil of any person dying after the passage of this act, where the maker of said last will, testament or codicil, after the execution thereof and before the death of such devisee or legatee, shall become insane or otherwise incompetent to cancel, revoke, annul, obliterate or alter said last will, testament or codicil,” the first issue was necessarily one of fact, whether the testatrix, after the execution of the will and the several codicils thereto and before the death of the legatee, became insane or otherwise incompetent to cancel or alter the will or the codicils and remained so continuously to her death. To bring this case within the language of the proviso, appellee was bound to show that the incompetence was continuous from the death of the legatee to the death of the testator. Bartlett v. Ligon, supra.

To meet that burden it offered one witness, Dr. N. E. Berry Iglehart, who testified that he had attended Mrs. Lanahan for some twelve or fifteen years prior to her death; that during the six weeks preceding her death he saw her every day; that her death was due to a “mycardiac” condition resulting from a chronic kidney disease; that her physical condition affected her mentality to such an extent that during the last six weeks of her life “she was confused as her location, as to where she was. She believed that she was not at home and was making an effort to get home. People did not understand that she ought to have attentions that she thought she was not getting. Those were the principal complaints; very distressing, very wearing; things you cannot relieve.

She thought 1 was some other doctor that had been attending her. She was more or less facetious. She became facetious about things that were serious. That is the sort of mental change takes place where there is (mycardiac) cardiac phycliosis or dilemma. * * * With any one in the condition that Mrs. Lanahan was in as ⁴⁹⁸ I have described, her as being, I should think she was totally unable to attend to any business.

I don’t think she was of disposing mind”; that “during the nine days preceding her death she had no lucid interval” when he was present; that during that period she was-not capable of executing a valid deed or contract; nor competent to cancel, revoke, annul, obliterate or alter “her last will and testament or codicils thereto”; and on his cross-examination he further said: “Were there times when she would realize she was at home and other times that she would not? A. I don’t believe in trying to persuade people. She thought she was not at home. She had a confused idea she was at home.” She would say, “ ‘These things are like mine, yes I know they are.

You all just don’t understand.’ Everybody else was mentally mixed, that was the way with her. * * * Doctor, from your knowledge of her condition would you say it was impossible for her to-have had a lucid interval during the last nine days ? A. Yes. It is my opinion that during the last weeks of her illness it was impossible for the ‘grey matter’ of her brain to be so changed that she could do anything that was quite normal to her. Q. Do you recollect that at the time -of the death of Mr. Lloyd Dnduch that the news was kept from Mrs. Lanahan?

A. Yes. Q. Was that done on your advice? A. Well, I don’t know that I told them they must not tell her. All agreed it should not be done.

Q. Doctor, you thought then that it was at least possible that she would have had an understanding of that fact, do you ? A. No, it would not have-registered with her really as a real fact. She loved Lloyd and talked a good deal about him in her delirium, and I thought it was wise not to bring to her mind in any way the fact of his death.” Mrs. Sallie Oarroll Brown, a sister of Mrs. Lanahan, was. offered by the appellee as a witness to prove the relationship and pedigree of beneficiaries under the will, but on her cross-examination appellants made her their witness for the purpose of having her testify as to the mental condition of Mrs. Lanahan during the last few weeks preceding her death. In ⁴⁹⁹ •connection with that inquiry, after stating that from some time in the fall preceding Mrs. Lanahan’s death she “was there all the time,” Mrs. Brown said she did not think that Mrs. Lanahan during the last two weeks of her life “realized at all what she was doing”; that witness was “attending to the house and to her finances and everything else”; that she, the witness, had been given a power of attorney and signed Mrs. Lanahan’s