Lyon v. Townsend

Burke, J., delivered the opinion of the Couxu. On the 26th day of Eebruary, 1912, Lucy B. Townsend executed a paper writing purporting to1 be her last will and testament, which was admitted to probate by the Orphans’ Court of Baltimore City. This paper, which we shall denominate in this opinion, her will, contained fourteen items. It appointed Samuel Clinton Townsend and William Stone ¹⁷³ Townsend executors, and letters testamentary were issued to them.

The first eleven items of the will contained pecuniary bequests to certain named persons. By the twelfth item she bequeathed to her sister, Anna Grace Lyon, all her jewelry, clothing, furniture, pictures, hooks and silverware, if she should be living at the time of the testatrix’s death; if, however, she should be dead at that time, the same should constitute a part of tbe rest and residue of tbe estate. By this item she also bequeathed to her said sister the rents, issues and profits on the sum of fifty thousand dollars, which she directed to he set aside for the use of her sister for life, and after her death to he and become a part of the residue of the estate. By the thirteenth item the rents and profits of a like sum were directed to be paid to her brother, John Lyttleton Lyon, for life, and at his death said sums should fall into and become a part of the residuary estate.

The fourteenth item, which deals with the residuary estate, is here transcribed: “Item XIV. All the rest and residue of my estate, real, personal and mixed, inclnding the respective amounts set aside for the use of my brother and sister, for life, and after their respective deaths unto such persons living at that time who would, under the laws of Maryland, inherit real estate of me had I died intestate.” A-caveat to the will was filed by John L. Lyon and Anna Grace Lyon, the only surviving brother and sister of the testatrix, and thereupon the Orphans’ Court of Baltimore City transmitted certain issues to the Baltimore City Court for trial. The case was tried three times. Twice the jury were unable to agree.

Upon the third trial a jury in the Superior Court of Baltimore City, to’ which the case had been removed, rendered a verdict sustaining tbe will. Tbe appeal before us is taken by tbe caveators from the ruling of the Court made during the progress of the trial. ¹⁷⁴ The first and third issues ware withdrawn by consent, and the ease was tried upon the following issues: 2. Was the paper writing, dated the 26th day of February, in the year nineteen hundred and twelve, and purporting to be the last will and testament of said Lucy B. Townsend, executed by her when she was of sound and disposing mind, and capable of executing a valid deed or contract? 4. Ware the contents of the paper writing, dated the 26th day of February, in the year nineteen hundred and twelve, purporting to be the last will and testament of Lucy B. Townsend, read to or by her, or known or understood by her at or before the time of the alleged execution thereof ? 5.

What parts, if any, of the said paper writing were unknown to, or misunderstood by, the said Lucy B. Townsend, at the time of the alleged execution thereof? The modal execution of the will was admitted by the caveators at the trial, and the caveatees were relieved of the necessity of proving the same. At the conclusion of the whole case the defendants submitted two prayers by which the Court was asked to direct a verdict for the defendants: First, because there was no legally sufficient evidence in the case to show that at the time of the execution of the will the testatrix was of unsound mind and incapable of executing a valid deed or an ordinary contract; and, secondly, because the evidence was legally insufficient to sustain a verdict on the fourth and fifth issues. These prayers were rejected.

The evidence offered by the plaintiff, if believed by the jury (and it was the sole tribunal to pass upon the weight of the evidence and the credibility of the witnesses), was legally sufficient to have carried the case to the jury upon each issue submitted. The mental capacity required by the law for the making of a will, and the character and scope of the evidence which may be resorted to upon the issue of testamentary capacity have been the subject of many adjudications of this Court and elsewhere. The law is so definitely settled upon these subjects that a brief quotation from two cases will be suffi ¹⁷⁵ cient in the consideration of the questions raised under the second issue. In Davis v. Calvert et al., 5 G. & J. 269 , it was said: “The written law of this State furnishes the rule, by which the capacity of a testator is to be measured; and the inquiry must always be, whether at the time of executing or acknowledging the will or testament, he was capable of executing a valid deed or contract; that is here, the standard by which the mental capacity of a testator is to be ascertained, and no inferior grade of intellect will suffice.

That state of mental capacity is to be determined by the condition of the testator’s mind, at the time of his executing or acknowledging the will or testament. For, notwithstanding his incapacity at a prior or subsequent time should be proved, it does not necessarily follow that he was incompetent when the will or testament was made, as his incapacity before or after that time might have been the effect of a temporary cause. But for the purpose of shedding light upon the state of his mind, at the time the will or testament was made, evidence of his condition, and of his bodily imbecility, both before and after that period may be produced. And the jury may, upon the whole evidence, infer incompetency at the time of executing or acknowledging the will or testament, according to the character and cause of the entire incapacity proved; which may be established by proof of the conversations or actions, or declarations of the testator inconsistent with sanity, or of all of them taken together.

The general maxim is, semel furibundus semper furibundus praesumitur. It is not of itself sufficient to avoid a will or a testament, that its dispositions are imprudent, and not to bo accounted for. But a will or testament may, by its provisions, furnish intrinsic evidence, involving it in suspicion, and tending to show the incapacity of the testator to make a disposition of his estate, with judgment and understanding, in reference to the amount and situation of his property, and the relative claims of the different persons who should have been the object of his ¹⁷⁶ bounty—such as a disposition of his whole estate, to the exclusion of near and dear relations., having the strongest natural claim upon his affections; a wife and children for instance, or other near relations, without any apparent or known cause, which alone would be a suspicious circumstance, although not furnishing per se sufficient grounds for setting aside the instrument.” Judge Schmucker, in Davis v. Denny, 94 Md. 390 , said: “This Court has frequently been called upon to define the testamentary capacity which a testator is required to possess in order to make a will. Its decisions upon that subject have uniformly held, with slightly varying forms of expression, that such capacity consists in the possession by the testator at the time of making, his will of a full understanding of the nature of the business in which he is engaged; a recollection of the property of which he intends to dispose and the persons to whom he means to give it.; and also an understanding of the manner in which he in fact disposes of it, and of the relative claim of the different persons who are or should be the object of his bounty.

Davis v. Calvert, 5 G. & J. 301 ; Colvin v. Warford, 20 Md. 367 , 388; Higgins v. Carlton, 28 Md. 125 ; McElwee v. Ferguson, 43 Md. 479 ; Brown v. Ward, 53 Md. 382 . “Sanity and mental capacity are presumed by the law to exist in reference to. making wills as well as to other transactions, and the burden of'proof is upon those who alleged their non-existence. Brown v. Ward, supra; Higgins v. Carlton, supra; Tyson v. Tyson, 37 Md. 582 .” A brief statement of the more important and essential parts of the evidence produced by the appellants will now be made. It is not, however, the province of this Court to determine whether the testatrix possessed the required capacity, as defined in the cases cited, to make a valid will; but whether the jury might have reasonably concluded from the evidence offered by the plaintiff that she was mentally incompetent to do so. ¹⁷⁷ We state the question in this way for the reason that it was earnestly contended by the counsel for the appellees that the Court ought not to reverse the case for any errors that might he found in the exceptions, because there was no legally sufficient evidence in the ease to support a finding for the plaintiff's upon any of the issues, and, therefore, whatever the error the Court may have committed iu its rulings, was not reversible error. The testatrix in 1889, being then Miss Lucy B. Lyon of Richmond, Virginia, and about thirty-four years of age, married Samuel Townsend of Baltimore, who was much her senior, and who died in 1904.

Notwithstanding the great disparity in their ages, their married life appears to have been a happy one. Mrs. Townsend survived her husband about eight years, and died in the Hospital for Women of Maryland, in the City of Baltimore, a few days after a surgical operation had been performed upon her for appendicitis. This operation was performed between the hours of twelve and one o’clock on February 26th, 1912. The will in controversy was executed in the anesthesia room of the hospital a short time before the operation was performed.

This room adjoins the operating room, and at the time Mrs. Townsend signed the will she was sitting upon what is called a “carrier,”—a conveyance used to- transport patients into- the operating room. Mrs. Townsend had been taken to the hospital on the previous night, Sunday, February 25th, from the house of Mrs. Smyser. Mrs. Townsend never had any children, and at -the time of her death there were no lineal descendants of her husband living. The testatrix was the third wife of Samuel Townsend..

By a former marriage he had issue, and at the time of his death he left surviving bim one grandchild,—the only son of a pre-deceased son. This grandson was dead at the date of the will. There were certain nephews and nieces of Samuel Townsend living in Baltimore, and the relations between them and the testatrix appear to have been of a uniformly cordial and friendly character. ¹⁷⁸ She spoke of them at times as. her nephews and nieces, and they addressed her as aunt. At the time of her death, Mrs. Townsend’s only surviving brother and sister were the caveators.

The sister was unmarried. The brother was married, but had m> issue. She had no nephews and nieces of her own blood. On her mother’s side she had some first cousins and one aunt living.

On her father’s side there were some first, second and third cousins living in Pittsburgh, who appear.to be people of wealth and social importance. There was no intimacy between them and her. They met occasionally, but did not correspond, and really knew very little about each other. • Mrs. Townsend’s father died when she was a young girl, leaving a widow and five children surviving: George, John, Lucy B. (Mrs. Townsend), Grace and Harry.

They appear to have been in poor financial circumstances, and the burden of supporting the family devolved upon John and George. These two brothers supported Mrs. Townsend up' to' the time of her marriage, and the relations between her and them were close and affectionate. Mrs.. Dickinson, the aunt of Mrs. Townsend, testified that Mrs. Townsend was very fond of her brother John; that she admired him and he used to write her the most beautiful letters ; that she thought him a man with a high sense of honor; a man of great capacity, and a man that anyone could love and depend on, and that he was a good, consistent Christian; that John commenced to participate in the care of the family upon the death of his father, which occurred when he was but eleven years of age; that he left home and went to Pittsburgh where he was sxxccessful and continued to assist in the support of the family. • Mrs. Townsend, at the time of her marriage was described as *a very intelligent woman, a very sensible woman, a woman that was not easily influenced; she was well sustained and a person who had a great deal of executive ability, and was competent to do anything that was to be done.” She lived at ¹⁷⁹ home until her marriage.

She was the eldest daughter, and took charge of the house when her mother was in had health. Shortly after thei death of her husband in 1904, it is shown by the evidence of the caveators that her health began to fail, and that after the death of her brother Harry, who died in 1909, she “began to go back very materially, both mentally and physically.” Her brother George died in 1911. She was very much attached to her brothers, and their deaths were a great shock to her. The death -of her brother Harry appears to have greatly affected her nervous system.

She developed serious Bright’s disease. We quote from the testimony of Mrs. .Dickinson, as it appears in the record: “Mrs. Townsend was greatly disappointed by Harry’s death; she bought a place thinking she would have her brother to live there with her, but as. he died she felt that she had no one and she would have to go through life alone, and witness thought it affected her health very materially, both physically and mentally, because she never got any better but grew worse and worse every year. Witness also said she was very capricious at times, hut witness thought she was perfectly able and competent to attend to her affairs, for she never called upon any one to assist her in that; that she was always anticipating evil; that she thought something dreadful was going to happen every day and that seemed to be on her mind all the time. She could not sleep a.t nights; she said if she opened her eyes at night she would always see her deceased brother sitting there in the comer looking at her.

She said she could not sleep; that rats were running over her all night and that spooks were walking around her bed; she seemed to have hallucinations to a great degree. Witness drove with her every day, and she would go to sleep just as. soon as they entered the surrey and sleep all the time until they got home; it was impossible to keep her awake.” Claude M. Dean, testifying to a conversation ho had with Mm Townsend in Tune, 1911, immediately following the death of her brother George, said that during the talk: “She ¹⁸⁰ fell off in a kind of a stupor, or kind of semi-consciousness, and remained that way possibly a second or two, and that other times possibly a minute or two, while as she came too she started to tell the same thing over again, and when she started to tell it the third time I began to take notice and I found that when she got through she told the same thing over six different times * * * she repeated herself so often, over and over again, during the conversation; she would kind of fall off in a sleep, stupor, or appearing to be asleep for a second or two, sometimes lasting longer, possibly a minute or two.” ■ Mrs. Mary B. Todd, testified that she visited Mrs. Townsend in August, 1911, and went driving with her frequently; that “Mrs. Towsend would nearly always drop off asleep during the drive; she seemed very drowsy and slow and not very active; she was always willing and anxious to go, but seemed to go beyond her strength always; witness noticed how slowly she cspne and went up and down the steps of her house. She asked witness to' look at her limbs and she saw great big purple spots on them. During this same visit witness observed that she would constantly repeat herself; she seemed to' forget that she had told things 'and would tell them over.” Mrs. Todd saw Mrs. Townsend in October, 1911.

She testified that at that time Mrs. Townsend looked so wretched that she would not have been surprised at her death, and was thoroughly alarmed at her condition. She saw her again in November, 1911, and said that “she seemed to witness to be gradually growing worse each time witness saw her, and she seemed less alert, less cheerful, less mentally active, or physically and mentally.” Mrs. Sarah J. Lyon, the wife of John L. Lyon; one of the caveators, testified that in October, 1911, Mrs. Townsend visited her at her home in New York City. She said that Mrs. Townsend. looked so bad that witness would not have been surprised if she had died any minute. She was all swollen under the eyes and she did not seem to realize what she was doing half the time.

She went with witness to the ¹⁸¹ theatre four times inside of forty-eight hours, and during the intermissions she would sleep, sleep all the time. Then she would wake up and hold the program and seemed to know what was going on at that time; the next day she would say to witness, ‘Why Jane, what was all that about last night, T don’t remember a thing about it’ Witness would say so and so, and she would say she did not know it.” In February, 1912, Mrs. Townsend was in Baltimore stopping at the home of Mrs. Smyser. She was taken ill there, and Doctor Robert T. Wilson, a physician and surgeon who had previously been her attending physician, was called to see her. He considered her a very sick woman, and tried to induce her to go to the hospital, hut she would not consent to do so.

On Sunday night, February 25th, 1912, she informed Doctor Wilson that on the preceding Thursday she had fallen in the bath room. He was of the opinion that the fall had ruptured the appendix sac and that she had peritonitis. He told her she must go to the hospital. We quote from his testimony as it appears in the record: “She did not want to go, and it made her very excited; she did not want to go but witness talked to her about her ill condition and told her she must go.

She then made up her mind to go. The approaching operation made her more apprehensive. On the 26th she was just as ill as the night before. She was so ill that witness considered an operation should he done just the first moment possible.

Witness considered her then to he in a dying condition, and it was urgent an operation should be done to give her the only chance that might he any chance for her.” Doctor Robert W. B. Mayo, the chief resident surgeon of the Woman’s Hospital, testified that when he saw Mrs. Townsend on Sunday night she was ah extremely ill woman. She was quite restless and anxious and apprehensive because of being brought to the hospital and because of the pending operation; that the next morning she was just the reverse of the night before. “She was depressed and sleepy. Of course ¹⁸² when spoken to she would awaken and answer a few words and lapse into a period of sleepiness again, what we call a semi-comatose condition.” He further said: “The operation was performed upon the abodmen and a cut or incision was made through the abdominal wall down to this lining I mentioned, the peritoneum, and as soon as that was nicked with the knife, the puss gushed out to a height of six or eight inches, so mtich was in there* and it was under pressure and it gushed out with the nick in the lining, the membrane.” The operation was not completed because of Mrs. Townsend’s serious condition, but drains were inserted to relieve her of the puss. She had uraemia and septicaemia,-—both blood poisoning,—the first caused by diseased kidneys and the second by the puss in the abdomen.

The immediate cause of her death was uraemic poisoning, hastened by the septicaemia and the shock of the operation. It was admitted that a dose of one-fourth of a grain of codeine was administered to- Mrs. Townsend at about ten-thirty P. M., Sunday, February 25th, 1912, and another dose of one-fourth of a grain of codeine was administered to her about nine-fifteen A. M. on Monday, February 26th, 1912, and a dose of one-eighth of a grain of morphine and one-150th grain of