Malone v. Malone

Parke, J.; delivered the opinion of the Court. James J. Malone died testate on January 7th, 1923, possessed of personal property, which he disposed of to the disappointment and disapproval of his next, of kin, and two of them, Harry Tj. Malone, a nephew, and Mary E. Cornell, a niece, filed a caveat. The issues were, (1) the factum of the will; (2) mental capacity; (3) knowledge and understanding of the contents of the will; and (4) undue influence.

At the trial of the case before a jury in the Baltimore; City Court the due execution of the will was established, and the caveators abandoned all the issues, except that of undue influence. When the caveators had concluded their ease, the court granted instructions to the effect that on all the issues the verdict of the jury must be in favor of the caveatees. An appeal has been taken by the caveators, which brings up the propriety of the court’s ruling on the prayers that there was no legally sufficient evidence in the ease1 from which the jury could find that the will had been procured by undue influence; and on its exclusion of certain offers of evidence by the caveators. The action on the proffers of testimony forms the first eight exceptions, and the ninth exception arises on the prayers.

We approach the questions on this appeal with the admission that, the testator, having both the requisite mental capacity and a complete knowledge and understanding of its contents, duly executed a, paper writing, which must have full effect as his will, unless there can be found on this record legally sufficient evidence from which a, jury might have concluded that the will had been procured by undue influence. ²⁰² James J. Malone, the testator, had been first a stevedore, and afterwards a ship, surveyor. He amassed a moderate fortune, but continued to work at his occupation until October, 1922, when he stopped because of ill health. He was a bachelor, and lived in Baltimore, where his house was kept by Bridget Malone, an unmarried woman of but little mentality, whom the will declared a cousin, but who, according to the testimony, was. not a relative, nor were her two Mothers, John Malone and Joseph Malone, nor her nephew, John Schafer, nor her niece, Mary L. Schafer. Bridget Malone, however, had been his housekeeper for a groat many years, and his household consisted of the testator, the housekeeper, and her brother John Malone, who had come to live with the testator the last few years of his life, and who had been on terms of intimacy.

The housekeeper’s other' brother, Joseph Malone, had hoarded with the testator, visited him, and was a friend. Mary L. Schafer1, in later years, came to the house occasionally to assist her aunt in cleaning. James J. Malone, while friendly with his next of kin, Harry L. Malone and John S1. Malone, his nephews, and Mary Cornell, Theresa Sharp and Helen Lewis, his three nieces, was not -so closely associated with them as with the family of his housekeeper. - In fact, Harry L. Malone was. the only one who did not appear almost wholly indifferent to his uncle.

When James J. Malone quit work he was ill with consumption, and a few weeks later he was taken in his own automobile to the State Sanitarium at Sabillasville by John W. Mosely, who drove, and John W. Schafer and Joseph Malone. He remained almost a month, but was brought -back on December 16th, 1922, by John W. Mosolv, who again acted as driver, and Bridget Malone and her brother, John Malone. James J. Malone was qxxite weak on his arrival home, and spent his days reclining in a Morris chair until his death, oxi January 7th, 1923. During this last sickness John "W. Mosely was his attendant from seven o’clock in the morning ²⁰³ until half-past six in, the afternoon to the end of the day before the testator’s death.

Mosely left when John Malone returned. Mosely would dress and undress the sick man, who was quite 'weak, so that he needed assistance to go up and down the stairs; and every other day would take him to the doctor’s office to have his throat treated. He was absent the day of the death because of a sprained ankle. It is plain from the testimony that James J. Malone was in the last stages of throat consumption, with its attendant weakness and loss of voice, but there is not a particle of proof that his mental powers were in the least impaired.

On Sunday, December 31st, the witness Mosely testified that Malone was so sick that the doctor was sent for, and when the doctor went, out ‘he told the witness that if Malone had anything to settle up he had better do it. Malone inquired the next day what the doctor had said, and the witness informed him, and Malone’s reply was that he was not going to make a will. He did make a will, which was drawn by Joseph L. Mc-Allister, bis attorney, and attested by him and Eraneis J. McGee. After providing for the payment of his debts and funeral expenses, and the sale of his, E’ord sedan, the testator gave four hundred and fifty dollars towards the building fund of the convent in his parish and to his pastor; and to Ms next of kin he made a bequest of twenty-five dollars each to his nephew, John Malone, and to his nieces, Mary Cornell, Theresa Sharp- and Helen Lewis; and of five 'hundred dollars to his nephew, Harry L. Malone, who stood closer to the testator than the others.

He gave four hundred dollars to Mary L. Schafer, who was friendly with him and whom Mosely saw helping Bridget Malone to clean house while ho was there. The residue of his estate he divided among Bridget Malone and her brothers; -that is, to her brother, John IY. Malone, who lived with him and was h-is close friend, he gave the sum of seven hundred dollars, and a leasehold property on Andre Street on condition that he pay therefor one thousand dollars; to Joseph D. Malone he left ²⁰⁴ his diamond ring and the sum of five hundred dollars; and to Bridget D. Malone he 'bequeathed his household furniture and his watch, and all his other real and personal property. The executors named were Joseph D. Malone and John W. Schafer, Jr. The testator had an account in his own name with the National Marine Bank, and the amount to1 his credit at death was $1,039.69.

The inventory of assets filed with the Orphans’ Court of Baltimore City amounted to $1,882.40, making the total something over $2,900.00. The provisions of the will were natural and reasonable in view of the situation of the testator, and bis relation with the' various objects of his bounty. The varying degrees of intimacy between himself and bis nieces and nephews were accurately reflected by the discrimination he made among them in their legacies. And this was true, in turn, when he determined the nature and amount of the gifts to his housekeeper and her relatives, who were his most intimate companions.

The same sensible weighing of their relative claims was exhibited in the contrast afforded by the bequests to them in the- will. During his life the testator recognized that it was his dirty to provide for Bridget Malone, who was unable to malee á living, and the terms of bis will are in harmony with this 'conception of bis obligation to her. The testator opened an account in the joint names of himself and Bridget Malone, payable to the- survivor, with the Savings Bank of Baltimore on September 29th, 1920: with the Acme Building Association on January 3rd, 1922, and with the Baltimore Trust Company on October 6th, 1922'; and the respective deposits in the first two accounts on the death of the testator were $700.45 and $3,424.75. The amount on deposit in the Baltimore Trust Company was $6,324.49 on January 1st, 1923, and on January 4th a further deposit of $7,414.05 was made.

We find nothing strange or unusual in the provisions of the will. It is a sensible paper when considered in the light of its benefactions and the circumstances in which the testator lived. Nor was it executed in a way to invite condem ²⁰⁵ nation. Tt was prepared from information given to his attorney on Saturday, January 6tli, and when the will was taken, to the home late Saturday afternoon Malone was lying down.

The attorney, Joseph L. McAllister, Esq., did not disturb Malone, but said that he would return on (Sunday, January 7th. On Sunday morning Mr. McAllister took the will to Malone’s home. He found Malone, who was dressed, downstairs, in the large front room, in the Morris chair, with Joseph Malone. Efaneis J. McGee was a friend of the testator and came to see the sick man.

He had no knowledge that a will was to be made, and his becoming a witness was accidental. The attorney sat down by Malone and told him that he would like to go over the contents of the will to see if it was what the testator had told the writer on Saturday. The attorney asked McGee if he would act as a witness and listen while the will was read. The 'attorney, in the presence of McGee, then read the will, paragraph by paragraph, to the testator, who said it was jnst what he wanted, and that it was perfectly satisfactory.

No one but the attorney, McGee, and the testator took any part in the conversation. The will was then signed by the testator, and witnessed. After-wards, the testator rose from his chair and walked alone a part of the way to the stairs, when he was assisted to his room above, where he died during the course of the day. While