Moats v. Estate of Lily W. Pumphrey

Smith, J., delivered the opinion of the Court. This case is a sequel to Moats v. Schoch & Berry, 24 Md. App. 453 , 332 A. 2d 43 (1975), and was pending at the time that proceeding was before this court. In fact, Chief Judge Orth noted for the court in footnote 5 of the opinion in that case that the appellants there (two of the three appellants here) “moved to have further appellate proceedings stayed pending the outcome of Equity 3343 [(this case)] below,” which motion was denied. We shall here invoke Maryland Rule 1086 and hold that “the judgment of the lower court [should] not be set aside on the evidence [since it was not] clearly erroneous .. . .” The seeds of this controversy were sown in 1942 when Hilda Mae Pumphrey married contrary to the wishes of her parents.

A day or two later they executed a will styled at the top as “Joint and Several Will of William B. Pumphrey and Lily W. Pumphrey.” It provided in pertinent part: “We, William B. Pumphrey and Lily W. Pumphrey, husband and wife,... do hereby make, publish and declare this to be our Joint and Several Last Will and Testament in manner and form following, that is to say: — “After the payment of all our just debts ... we dispose of our estate, jointly and individually, as follows: — “Item 1\ — We give and bequeath unto our daughter, Hilda Mae Pumphrey, the sum of one ($1.00) dollar. ¹¹ “Item 2: — After the death of both of us, we jointly and severally bequeath and devise our home property containing 18.32 acres, more or less, ... unto our daughters, Frances Geneva Pumphrey and Lillie Belle Pumphrey, equally, share and share alike. “Item 3: — We jointly and severally and individually bequeath and devise, after the death of both of us, the survivor having had a life interest therein, all the rest and residue of our estate, jointly and severally and individually, real, personal and mixed, of whatsoever kind and wheresoever located, and whether nor [sic] owned or hereafter acquired, unto our daughters, Frances Geneva Pumphrey, and Lillie Belle Pumphrey, equally, share and share alike. “We hereby nominate, constitute and appoint our daughters, Frances Geneva Pumphrey, and Lillie Belle Pumphrey, executors of this our Joint and Several Last Will and Testament.” Mr. Pumphrey died in 1949. In 1957 Mrs. Pumphrey executed a new will. In it she left the residue of the estate, after bequests of $1.00 to each of her three daughters, to two granddaughters, the children of Lillie Belle Bastain. In the earlier appeal two of the daughters, Hilda Mae and Frances Geneva, sought to prevent the probate of the later will.

In holding that the 1957 instrument was properly admitted to probate, Chief Judge Orth said for the court: “We assume for the purpose of decision, but expressly do not decide, that it was a joint and mutual will, 6 contractual in nature, and that Lily W. Pumphrey accepted benefits thereunder. In other words, we are assuming arguendo, for the determination of this appeal only, that the will of 1942 was a joint, mutual, reciprocal will binding William and Lily to dispose of their property in the manner therein set out, each in consideration of the other, and that there was a contract between them ¹² that the will would remain in effect. Even on these assumptions, which accept the premises in the question as presented by daughters, the answer to the question is no, the will of 1942 is not irrevocable. In this case appellants Hilda Mae Moats (Hilda Mae), Frances Geneva Bell (Frances Geneva), and Lillie Belle Bastain (Lillie Belle) (collectively, the daughters), have sued the two granddaughters and the estate of Mrs. Pumphrey.

Among other things, they have alleged: “That prior to and concurrent with the execution of said will, [their parents] agreed and contracted, each with the other and in consideration of the promises made each to the other' and to their daughters, to dispose of all of their separate and jointly held property, whether in hand or after acquired, in such manner that the survivor would obtain only a life interest therein, including ¹³ property owned solely by the survivor, with remainder to specified legatees and devisees, namely, their daughters, Frances Geneva Bell, Hilda Mae Moats and Lillie Belle Bastian [sic], “That said agreement and contract was understood and consented to by both parties, and the terms thereof were reduced to writing and contained in the document dated May 22,1942, and titled ‘Joint and Several Will of William B. Pumphrey and Lilly [sic] W. Pumphrey’ (marked as Exhibit A and attached [to the bill of complaint]), which document was intended to and did in fact serve as a binding written memorial of said agreement and contract, as well as the means by which performance of said agreement and contract would be insured as to both parties in the event of the death of the other.” They further alleged that by this will their mother “took only a life interest in the property of [their father], [with the] remainder to Frances Geneva Bell, and Lillie Belle Bastian [sic], and she did contract to leave her property, then held or after acquired, in accordance with the terms thereof”; that “[t]he parties contracted and agreed that upon the death of the first to die the survivor should take an ordinary life estate in all property belonging to either spouse at that time or thereafter acquired, and that [their mother] thereby became bound to create such an interest at the death of [their father] in all property belonging to her then or acquired later, and to make a gift of the remainder interest to her daughters in compliance with the agreement”; “[t]hat at the death of [their father], [their mother] acquired a life estate only in his property and simultaneously had her own fee interest in all jointly held, separate, and after acquired property, diminished, pursuant to the agreement and contract between them, to a life estate”; that at the death of their father they “acquired a vested remainder interest in fee simple in all property belonging to [their father], and in all property jointly owned ¹⁴ by [their father and mother] and in all property owned by [their mother] at that time or thereafter acquired by her and not disposed of inter vivos that at the death of their mother “and the termination of her life interest in all her property, whether separate, jointly held, or acquired subsequent to the death of [their father], the Plaintiffs’ vested remainder interest became a vested fee simple interest in all property belonging to [their parents], whether separate, jointly held, or after acquired, and that, therefore, [their mother] was without power or authority to effect any valid testamentary disposition of any such property in violation of the agreement and contract described supra.” (Emphasis in original.) They sought: (1) a declaration that the agreement between their parents as contained in the 1942 will was “valid and binding upon the Estate of Lily W. Pumphrey, deceased, . .. upon the Defendants in this action; and upon all other persons mentioned in or benefited by the said mutual Will”; (2) specific performance of the agreement; (3) that the 1957 will “be declared inoperative, illegal, and ineffective to devise, bequeath, give or dispose of any of the real or personal property which came into the hands of [their mother], on the death of [their father], or was thereafter acquired but not disposed of by her during her life, and that in such respect said alleged Last Will and Testament of [their mother] be declared null ánd void”; (4) an accounting of all property received by the co-executors under the 1957 will and surrender by them of all such property; (5) an injunction against sale or transfer of real or personal property in the possession of the co-executors; (6) the appointment of a receiver “for the purpose of taking possession of and protecting the property mentioned in [their] complaint,” with the receiver to collect rents, etc.; and (7) a judgment for costs. The chancellor (Bowling, J.) pointed out in his opinion that the earlier case in this court settled the fact that the 1942 will was revocable. Thus, he reasoned, “if the relief prayed is to be granted it must be based on an underlying agreement independent of the Will.” He referred to Wilks v. Burns, 60 Md. 64 (1883), quoted extensively by this court in the earlier ¹⁵ opinion, and repeated that portion of the opinion in Wilks in which Judge Yellott said for the Court: “If a will executed under these circumstances, is subsequently cancelled, the aid of a Court of equity can be invoked. But how does equity intervene?

By an inquiry into the terms of the contract, which must be established by the adduction of proper and adequate evidence. If the proof fails, there can be no application of the remedy, and the cancelled will remains without vitality.” Id. at 70 . He said that in “reviewing] the terms of the Will and the facts in this case to determine whether an underlying agreement existed which would be enforcible [in equity]” it was necessary that “a determination should be made as to whether this is a ‘joint and mutual’ or a ‘joint and several’ Will,” that if it were found that this was “a mutual Will it would be some evidence indicating that there was an independent, underlying agreement between Mr. and Mrs. Pumphrey for the disposition of their property.” He pointed out that the words “joint and several” were used in the instrument, that “Websters’ definition of several is ‘existing apart, separate, distinct and individual,’ ” that there was “no other language in the Will which indicates that these words were to be given any meaning other than their normal and customary meaning,” and thus concluded “that this was to be a joint and several Will and not a joint and mutual Will,” that at the death of her husband in 1949 the will became the individual will of Mrs. Pumphrey “and she had the right as provided by statute to revoke the same at any time.” He added that “[t]he disposition of property as provided in the Will does not show an independent, underlying agreement which would be binding upon Mrs. Pumphrey after the death of Mr. Pumphrey.” He then went on “to determine whether or not there was extrinsic evidence sufficient to establish the existence of an underlying agreement which would preclude Mrs. Pumphrey from revoking this Will in 1957.” He concluded there was no such evidence, that there was no underlying agreement ¹⁶ concerning the disposition of the property other than that both parents intended to punish Hilda for running off and getting married, and that “[t]he evidence disclose[d] no independent agreement for the disposition of their property in any other manner which would prevent Mrs. Pumphrey from revoking her 1942 Will in 1957.” The evidence adduced was sparse. All three daughters testified.

Hilda Mae said that she had no contacts with her parents from the time that she called her mother after the ceremony on the day of her marriage until seven years later in 1949 when her father was in the hospital. She testified that her father operated a hog farm in Prince George’s County and that when the hogs were sold her father “got two-thirds. [Her] mother received a third. They were partnerships.” Lillie Belle said that her father told her that if she “taken and walked off and got married like Hilda [she] would be left nothing or otherwise if [she] had stayed home and got married like [she] should that [she] would heir to everything that he had,” that is that she and her sister, Frances, would be “made heirs of everything.” This conversation took place on the night that Hilda was married. She stated that on the following day her father “said he was going to Upper Marlboro and they [we] re going to make a will” and “that Frances and [she] would be the heirs to whatever they had.” On May 22, in the presence of her mother, she and her sister were handed the will and told to read it.

At that time the discussion was with her father who “told [them] that there was a will and everything belonged to Frances and [Lillie Belle].” She identified the will we have quoted as the instrument which she read on that day. She testified to familiarity with the business operation of the family farm and that “when [her father] came home from selling these hogs [her mother] was given so much money, one third, and he kept the other two-thirds. In fact, he put his share in the bank/’ The next witness was Frances Geneva. She was close to 16 at the time her older sister got married and left home in 1942.

She said, “There was a lot of confusion and threats and ¹⁷ everything, what would happen if we did it and all.” She testified relative to a conversation with her father: “He said if either one of you girls do that, you will get the same thing. We will leave her a dollar. We are going to have a will made and we are going to leave her a dollar.” On May 22, 1942, when she came home from school her mother and father showed her the will. She identified the document we have previously quoted as the instrument which she was shown.

Relative to the conversation, she declared: “My father said well, we had a will made today. And my mother handed it to my oldest sister and we read it, because, you know, I was a child. I didn’t pay too much attention to it.” John E. Kennedy described himself as a good friend of the family in 1942. At that time he saw Mr. Pumphrey “every day, five days a week.

And family about twice. [He] guess [ed] about every other night through the week.” He said that when Hilda ran away to get married her father “said that they were going to make a will,” that “[h]e said they [we] re going to make a will, going down to Upper Marlboro, to make a will, and leave Hilda one dollar and the entire estate would go to Belle, which is the oldest daughter and Frances, the youngest daughter.” This conversation took place on May 21, 1942, a date he “never will forget.” According to Kennedy on the following day or two days later Mr. Pumphrey “and Mrs. Pumphrey told [him] that they made the will that day” and asked whether he “would like to read it.” He said there was not much further conversation “with Mr. Pumphrey. Because he was very brief. He never said much. But Mrs. Pumphrey kept saying over and over .. . that they made the will and that Belle and, the oldest daughter, and Frances.

The youngest one would get the entire estate. Hilda Mae would get one dollar.” The above testimony, the 1942 will, and a certified copy of the administration account in Mr. Pumphrey’s estate ¹⁸ showing a gross personal estate of $3,945.04 and payment in excess of receipts of $294.78 constituted the evidence before the chancellor. We review this case bearing in mind that in Wilks, 60 Md. at 67-68 , the Court of Appeals said, “When there is an application for specific performance, the proof of the intention of the contracting parties must be clear, and the contract certain in its terms, and free from all shade or color of ambiguity.” In that same case the Court quoted from Semmes v. Worthington, 38 Md. 298 (1873), where Judge Alvey said for the Court: “[I]n all cases for specific performance [of a contract to devise real estate] the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. The proof must be clear and explicit, leaving no room for reasonable doubt.

And in cases for the specific enforcement of a contract to devise, like the present, where the property has been devised to other parties, the utmost certainty is required, as, by the enforcement of the contract, the court undertakes to set aside a solemn testamentary act of the deceased party, in the absence of all possible explanation of his conduct, and when he is no longer present to vindicate himself against the imputation of bad faith. To such cases may well and most aptly be applied the rule so clearly and forcibly stated by the late Mr. Justice Grier, of the Supreme Court, in delivering the opinion of that tribunal, in a case of an application for specific performance. In speaking of the character and certainty of proof required on such applications, he said: ‘Such proof must be clear, definite and conclusive, and must show a contract leavingnojws deliberandi or locus penitentiae. It cannot be made out by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversations, which the ¹⁹ witness had no reason to recollect from interest in the subject-matter, which may have been