Phelps v. Goldberg

Smith, J., delivered the opinion of the Court. A widow, appellant Janet W. Phelps, here challenges the determination by a trial judge (Mayfield, J.), who heard the case without a jury, that her husband had the requisite testamentary capacity to execute a valid will. After disposing of a stamp collection, a coin collection, musical instruments, and music compositions, and bequeathing $10,000 to a hospital and $20,000 to his secretary, the testator, Charles A. Phelps (Phelps) left the entire residue of his estate to his widow. The will specified relative to the bequest to the secretary that “the payment [was not] ... to come about at the sacrifice of any property value and foolish loss of money merely for the sake of expediency of payment of the bequest.” The will was executed on July 31, 1970, at a time when Phelps was hospitalized in the District of Columbia.

He died on August 4, 1970. The will was admitted to probate in Howard County on April 16, 1971. Mrs. Phelps filed her caveat on October 12, 1971. It is conceded by all parties that Phelps was a resident of Howard County.

The trial judge found, and both parties agree, that District of Columbia law is applicable in the determination of testamentary capacity. It appears that District of Columbia law and Maryland law on the subject of testamentary capacity are virtually identical, if not identical, perhaps as a direct result of the fact that most of the territory comprising the original District of Columbia came from Maryland. District of Columbia Code Annotated, § 18-102 (1973 ed.) provides in pertinent part: “A will ... is not valid for any purpose unless the person making it is ... , at the time of executing or acknowledging it ... , of sound and disposing mind and capable of executing a valid deed or contract.” It will be seen at once that this language is virtually the ⁶⁹⁶ same as that appearing in Maryland Code (1957, 1964 Repl. Vol.) Art. 93, § 349 providing: “No will . . . shall be good and effectual for any purpose whatsoever unless the person making the same be at the time of executing or acknowledging it ... of sound and disposing mind, and capable of executing a valid deed or contract.” Our current provision, Code (1969 Repl.~~Vol.) Art. 93, § 4-101, the “new” Art. 93, which would have been applicable were Maryland law to govern, requires simply that a person be “legally competent to make a will.” The Second Report of the Governor’s Commission to Review and Revise the Testamentary Law of Maryland (1968) said relative to this language: “The language ‘legally competent to make á will’ is substituted for the present language of § 349 (Md) ‘of sound and disposing mind, and capable of executing a valid deed or contract’, which in turn is similar to the language of 2-501 (UPC).

The Maryland Court of Appeals has developed a sound and consistent body of law on the subject of mental capacity to make a will which, in the opinion of the Commission, could be better described by the language ‘legally competent to make a will’ than by the language presently contained in the statutory provision. See Sykes, § 3. In fact, the Commission believes that in view of the substantial amount of decisional law on the subject a restatement of the present language, which would seem to have a little different significance than that attached to it by the Court of Appeals, would not be useful. See Sykes, Contest of Wills in Maryland, § 61 at page 72.

Thus, the Commission intends to adopt the present Maryland law in connection with legal capacity to make a will, as it has been construed, rather than as it might have been in view of the prior statutory language.” Id. at 46. ⁶⁹⁷ As to the connection between the law of the District of Columbia and the law of Maryland on this subject, the oft cited case of Barbour v. Moore, 4 App. D. C. 535 (1894), states: “Whether the testator was capable, at the time of executing the paper purporting to be his will, of making a valid deed or contract, is the question, in all such cases as the present, that must be decided. This is the test prescribed by the Maryland Statute of 1798, Ch. 101, in force in this District.” Id. at 547. To like effect, see Rossi v. Fletcher, 135 U. S. App. D. C. 333, 418 F. 2d 1169 (1969), cert. denied, 396 U. S. 1009 , 90 S. Ct. 568 , 24 L.Ed.2d 501 (1970). Identical language relative to mental capacity for execution of a will appears in our former § 349 and in Chapter 101 of the Acts of 1798, there having been'no change in the interim.

In the recent case of In Re Estate of Weir, 154 U. S. App. D. C. 404, 475 F. 2d 988 (1973), in applying the District of Columbia statute in a case where a caveat challenged a will for lack of testamentary capacity, the court quoted from Thomas v. Young, 57 App. D. C. 282, 284, 22 F. 2d 588, 590 (1927), saying: “In this jurisdiction, as in most others, sound and disposing mind simply means that ‘the decedent must have had, at the time of execution of the instrument, sufficient mental capacity to dispose of his property or estate with judgment and understanding, considering the nature and character of the estate as well as the relative claims of different persons, who would be the natural objects of [his] bounty.’ ” Id. at 475 F. 2d 991 . Thomas v. Young in turn quoted Berry v. Safe Deposit Co., 96 Md. 45 , 53 A. 720 (1902), where Chief Judge McSherry said for our predecessors: “By the legal standard he who is possessed of sufficient capacity at the time of executing his will to make a disposition of his estate with judgment ⁶⁹⁸ 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 objects of his bounty, is mentally competent to make a valid will.” Id. at 49 . The court in Weir also referred to 1 Page, Wills §. 12.21 (3d ed. 1959). 1 Bowe-Parker, Page on Wills, § 12.21 (1960) states: “The standard of testamentary capacity which has finally been agreed upon, in substance, by the great weight of authority is as follows: Testator must have sufficient strength and clearness of mind and memory, to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and nature of the act which he is about to perform, and the names and identity of the persons who are to be the objects of his bounty, and his relation towards them.” Id. at 606. The latter treatise in turn cites, among other cases, Sellers v. Qualls, 206 Md. 58 , 110 A. 2d 73 (1954), where Chief Judge Bruñe said for this Court: “As stated by Sykes, [Contest of Wills in Maryland § 61 at p. 72 (1941)], ‘Whether a testator had sufficient mental capacity is determined by a consideration of his external acts and appearances.

It must appear that at the time of making the will he had a full understanding of the nature of the business in which he was engaged; a recollection of the property of which he intended to dispose and the persons to whom he meant to give it, and the relative, claims of the different persons who were or should have been the objects of his bounty.’ ” Id. at 66. In Webster v. Larmore, 268 Md. 153, 165 , 299 A. 2d 814 (1973), Judge Singley pointed out for the Court that “the classic test” set forth in Sykes is derived from Davis v. ⁶⁹⁹ Calvert, 5 G. & J. 269, 300-01 (1833). Thus we reach the conclusion that there is virtually no difference between the District of Columbia law and the Maryland law relative to testamentary capacity. In our evaluation of the facts of this case we must bear in mind the standard set forth in Arbogast v. MacMillan, 221 Md. 516 , 158 A. 2d 97 (1960), where Judge Plorney said for the Court: “The law presumes that every man is sane and has capacity to make a valid will, and the burden of proving the contrary rests upon those who allege that he lacked mental capacity.

Cronin v. Kimble, 156 Md. 489, 494 , 144 Atl. 698, 700 (1929); Smith v. Shuppner, 125 Md. 409, 417 , 93 Atl. 514, 517 (1915). Moreover, in the absence of proof of prior permanent insanity, it must be shown that the testator was of unsound mind at the time the will was executed in order to overcome the presumption of sanity. Acker v. Acker, 172 Md. 477 , 192 Atl. 327 (1937); Gesell v. Baugher, 100 Md. 677 , 60 Atl. 481 (1905).” Id. at 523. To like effect see Webster, 268 Md. at 158 ; and Ingalls v. Trustees, 244 Md. 243, 260 , 223 A. 2d 778 (1966).

The will here was originally 'prepared as a draft of a will and is so labeled. The words “draft of” have been stricken from the top of the first page of the two-page instrument and the initials “CAP” with the date “7/31/70” written opposite this striking. Item second concerned the musical instruments. This was also stricken with the same initials and date being placed immediately adjacent to it.

At the end of that item there was written in “see insert Exhibit ‘A’ ” together with certain other language not readily decipherable on the copy available to the Court, the last words of which, however, read “by consent of Charles Phelps.” Item third provided a bequest to the secretary of Phelps in the amount of $10,000 “if she survivefd] [him] sixty (60) days.” This also was stricken with like initials and date ⁷⁰⁰ placed along side of it. In parenthesis at the end of that paragraph appears, “See insert Exhibit ‘B’ — this was changed and deleted by Mr. Charles Phelps.” The fourth, fifth, and sixth items were unchanged. In the seventh item Weenonah Goldston, previously identified in the instrument as the sister of Phelps, was appointed executrix. As typed, the name was spelled “Wwanenah.” This has been stricken with the spelling “Weenonah” inserted above it and the initials “CAP” and the date “7/31/70” adjacent to it.

There are several instances in item seventh in which words have been typed, in what was obviously intended to be a rough draft, and then the letter “X” has been typed over the top of the words thus typed in order to eliminate them. In each instance initials and dates have been placed in close proximity to the changes thus made, corresponding to the initials and dates previously mentioned. A similar situation exists relative to item eighth naming an attorney to represent the estate, the same attorney who appears here as personal representative, he having been designated as an alternate executor. The will as originally drafted covered two pages.

At the bottom of the first page appeared the words “Page One of Two Pages.” The word “Two” has been stricken and “Five” inserted above it with initials and date similar to that previously described. A similar situation exists on the second page. On that page the name of Phelps is typed under the signature line as “Charles Phelps.” The signature immediately above the line is “Charles Phelps,” with the signature “Charles A. Phelps” immediately above that. On the second page appears an attestation clause with space for signatures of three witnesses together with their appropriate addresses.

The will is witnessed on page two by James P. Mann, M.D., Roger E. Williams, and Daisy Chun Polissar. Written in longhand on page two between the printed margin on the lefthand side of the page and the edge of the paper, running perpendicular to the typing, is a statement that Mrs. Goldston should be entitled to commissions of 10% “of the entire Estate in payment for her services as Executrix” with reference made by way of ⁷⁰¹ explanation or clarification to “royalties, or any other continuing incomes that may be attendant to [Phelps’] Estate” as being included. There was a further statement in that paragraph that Mrs. Goldston was to “use her discretion about her bequest to Daisey, [Phelps’] sister, and Horace, [his] brother.” This has also been initialed and dated. At the bottom of the third page appears “page 3 of 5” with initials and date.

Page three is marked “Exhibit ‘A’ ” at the top of the page. It repeats the prior language of item second relative to a bequest of musical instruments and then in a new paragraph labeled “SECOND” appears a provision that “ [i]n addition to musical instruments, additionally any musical composition copyrights or otherwise which may turn out to be usable . . . should be divided between [the person previously named] and SPEBSQA (Barbershop),” with further comment as to the procedure Phelps would like for SPEBSQA to follow. Page four is marked at the bottom of the page as “Page 4 of 5” with initials and dates similar to the ones previously mentioned. At the top of the page appears “Exhibit ‘B’ ”.

This is item third. It makes a