Merling v. Merling

BLOOM, Judge. Appellant, Joyce Merling, filed a caveat in the Circuit Court for Harford County, sitting as the orphans’ court, challenging a will executed in 1986 by Sara E. Holliday, the testator. Appellant, who was the personal representative named in an earlier will, alleged that the 1986 "will was procured through undue influence and that the testatrix was incompetent at the time of its execution. By request, issues of fact were transmitted to the circuit court, sitting as a court of law.

Before trial, appellant proffered the testimony of two witnesses: the first witness would relate statements made by the testator in 1981 concerning her feelings toward one of the co-beneficiaries under the will, and the second witness would testify to statements made by one of the co-beneficiaries under the will. Appellee, Raymond Merling, filed a motion in limine to exclude the proffered testimony, and the circuit court granted that motion. The jury found that the testatrix was competent to execute the will and that the will was not procured by undue influence. In this expedited appeal, the following issues are presented. 1.

Whether the circuit court abused its discretion when it excluded as irrelevant the testimony of the testatrix ²⁴⁷ concerning her feelings toward one of the co-beneficiaries. 2. Whether the circuit court erred by excluding as inadmissible hearsay the statement made by one of the co-beneficiaries. Factual Background (From Agreed Statement of the Case and Facts, Md.Rule 8-207) The testatrix resided in Westmoreland, Pennsylvania, for most of her life. In 1982, she executed a Will (the “Pennsylvania Will”) in which she named Joyce Merling as executrix, bequeathed to her grandsons, Raymond and George Merling, the sum of One Dollar ($1.00) each, and left the remainder of the estate to her great grandchildren.

In October, 1986, Mrs. Holliday telephoned Raymond, asking him to let her reside with him in Maryland while she underwent cataract surgery and for a period of recuperation afterward. Raymond went to Pennsylvania and brought his grandmother back to Maryland. Two days after her arrival, Mrs. Holliday executed a Power of Attorney, naming Raymond as Attorney-in-Fact. From 30 October through 15 December 1986, Mrs. Holliday resided with Raymond.

During that period, Raymond, with the assistance of his brother George, managed Mrs. Holliday’s Pennsylvania bank accounts, paid her bills, and supervised her medical care. On 5 November 1986, Mrs. Holliday executed a new will (the “Maryland Will”), revoking any and all previous wills and codicils, and naming Raymond Merling as Personal Representative. In contrast to the earlier Pennsylvania Will, the testatrix devised her entire estate to Raymond and George. On 5 November 1986 she fell and was taken to Fallston General Hospital.

She was later transferred to Manor Care Nursing Home, where she died on 17 February 1987. ²⁴⁸ On 9 April 1990, Joyce qualified as Executrix pursuant to the Pennsylvania Will and was granted letters testamentary by the Register of Wills for Westmoreland County, Pennsylvania. On 29 June 1990, pursuant to the Maryland Will, Raymond was appointed Personal Representative of the Estate of Sara E. Holliday under an Administrative Probate Order issued by the Register of Wills for Harford County. On 5 October 1990, Joyce filed a petition to challenge jurisdiction and to caveat the Maryland Will in the Matter of the Estate of Sara E. Holliday in the Circuit Court for Harford County, sitting as the Orphans’ Court, Estate Number 24,969. On 29 November 1990, Raymond filed a request for the following issues to be transmitted to a court of law to be tried by jury: (a) Was the paper writing dated November 5, 1986, purported to be the Last Will and Testament of Sara E. Holliday, executed by her when she was legally competent to make a will?

(b) Was the paper writing dated November 5, 1986, purported to be the Last Will and Testament of Sara E. Holliday procured by undue influence exercised on her while in a state of diminished mental capacity? (c) Were both the individuals whose names were subscribed as witnesses to the said paper writing dated November 5, 1986, and purported to be the Last Will and Testament of Sara E. Holliday credible witnesses who placed their signatures thereon in the presence of Sara E. Holliday? After a hearing conducted on 21 February 1991, the Circuit Court for Harford County, sitting as the Orphans’ Court, determined that it had jurisdiction over the administration of the decedent’s estate. On 12 May 1993, prior to trial and before a jury was impaneled, Raymond filed a motion in limine seeking to ²⁴⁹ exclude certain testimony Joyce sought to introduce into evidence.

Joyce proffered that Robert Cunningham would testify to a lengthy discussion he had with the testatrix in 1981 before she executed the Pennsylvania Will, wherein she stated she distrusted George, doubted his honesty, and did not want him to have access to her funds. Joyce also proffered that Carla Cunningham would testify that in late 1986 George told her that he and Raymond knew the testatrix was troubled by bad vision, was almost incoherent at the time the Maryland Will was executed, and was admitted to a nursing home in Westernport, Maryland to discourage visits by Joyce and her children during which they could discuss her will. The circuit court granted appellee’s motion in limine, ruling that the testatrix’s statements to Robert Cunningham concerning George were irrelevant because they would introduce events too remote in time and that George’s statement to Carla Cunningham was inadmissible hearsay. During the trial, Joyce introduced into evidence a video tape of Mrs. Holliday, made in 1986 shortly before the Maryland Will was executed, asserting that the tape contained statements made by Mrs. Holliday that indicated her negative feelings toward George.

Preservation of Error We shall address, as a preliminary matter, the question of whether the issues now raised by appellant were preserved for appellate review. Ordinarily, an error, if any, in granting a motion in limine is not preserved if there was no offer of proof at trial. See Funkhouser v. State, 51 Md.App. 16, 23-25, 440 A.2d 1114 , cert. denied, 293 Md. 331 , 444 A.2d 50 (1982). But if, as in this case, the ruling in limine is made just prior to trial and the court, after considering a proffer of the evidence, rules that it will be excluded, the issue will be deemed to be preserved for review.

Turgut v. Levine, 79 Md.App. 279, 284-88 , 556 A.2d ²⁵⁰ 720 (1989). See also Leet v. Totah, 329 Md. 645, 666 , 620 A.2d 1372 (1993). Statement of the Testatrix to Robert Cunningham Appellant argues that the circuit court abused its discretion in excluding the testatrix’s negative statements about George. The court ruled that the statements were irrelevant, because they were made five years before the Maryland Will was executed and were, therefore, too remote in time to have probative value relating to the issues in the case.

Appellant contends that the statements were relevant to show that the Maryland Will was procured by undue influence and that the testatrix lacked the requisite mental capacity to execute a new will; therefore, they should have been admitted into evidence. For an item of evidence to be admissible, it must be both relevant and material. Evidence is material if it tends to establish a proposition that has legal significance to the litigation. Evidence is relevant if it is sufficiently probative of a proposition that, if established, would have legal significance to the litigation.

Paige v. Manuzak, 57 Md.App. 621, 632 , 471 A.2d 758 , cert. denied, 300 Md. 154 , 476 A.2d 722 (1984). Trial judges are vested with wide discretion as to rulings on the relevancy of proffered evidence. Fleming v. Prince George’s County, 277 Md. 655, 680 , 358 A.2d 892 (1976); see also McCray v. State, 305 Md. 126, 133 , 501 A.2d 856 (1985); Fidelity Deposit Co. v. Olney Associates, Inc., 72 Md.App. 367, 372 , 530 A.2d 1 (1987). A ruling on the relevancy of evidence will be overturned only if the trial judge abused his discretion in making his decision.

Eagle-Picher Inc. v. Balbos, 84 Md.App. 10, 92 , 578 A.2d 228 (1990), aff'd in part, rev’d in part on other grounds, 326 Md. 179 , 604 A.2d 445 (1992). An abuse of discretion exists when a judge makes a decision that is extremely unreasonable. See Lusby v. Nethken, 262 Md. 584 , 278 A.2d 552, 554 (1971). With regard to probate matters, an abuse of discretion occurs when a judge misapplies existing law, makes a manifestly unreasonable judgment, or rules with partiality, prejudice, or ²⁵¹ ill will.

See In re: Estate of Vaughn, 315 Pa.Super. 354 , 461 A.2d 1318, 1320 (1983) (imposition of costs in orphans’ court proceeding is a matter left to the sound discretion of the court and will not be disturbed on appeal absent an abuse of discretion). An abuse of discretion in a probate matter connotes more than an error of law or judgment, it implies that a court’s attitude is unreasonable, arbitrary, or unconscionable. See In re: Estate of Russolillo, 69 Ohio App.3d 448 , 590 N.E.2d 1324, 1326 (Ohio App.3d 1990) (removal of executor). Based on our review of the record, we conclude that the circuit court judge did not abuse his discretion by excluding the testatrix’s negative statements about George to Robert Cunningham.

Those statements tended to show a dislike for or distrust of George that would explain the One Dollar bequest to him in the Pennsylvania Will, and were thus offered to show that the later bequest of half the estate to him was “unnatural.” The circumstances had clearly changed, however, demonstrating a basis for a change of mind by the testatrix. The testatrix had made the negative statements about George five years before she executed the Maryland Will, while she lived in Pennsylvania. The Maryland Will was executed after she had moved into Raymond’s residence, where he cared for her, and George had joined Raymond in helping her manage her financial affairs. In view of the lapse in time and change in circumstances, we are not persuaded that the circuit court judge abused his discretion in ruling that the proffered evidence was too remote to have any probative value regarding the issues in the caveat case.

George Merling’s Statement to Carla Cunningham Appellant argues that George’s statement should have been admitted as an exception to the hearsay rule that is applicable when one who is in a joint interest with a party makes an admission against that interest. Appellant proffered that Carla Cunningham would testify that George made' a statement, after the Maryland Will was executed, that may be deemed to be an admission that he and Raymond knew that the testatrix lacked mental capacity to execute an enforceable will and that Raymond placed the testatrix in a nursing home ²⁵² to prevent her from discussing the Maryland Will with her family. Hearsay evidence consists of parol testimony about an out-of-court statement offered to