Sachs v. LITTLE, OF ESTATE OF LITTLE

Barnes, J., delivered the opinion of the Court. ³⁴⁶ The will of Edward A. Little, a bachelor, executed by the testator on December 30, 1959, was challenged in the Orphans’ Court for Washington County by a caveat filed on January 15, 1965, by Bertha Little Sachs (Bertha), the surviving sister of the testator. Later, on April 20, 1965, fourteen surviving nieces and nephews, also filed a caveat. The caveatee, Philip N. Little (Philip), a nephew of the testator and the executor named in the will, which was admitted to probate on January 12, 1965, filed his answers to the caveats. Issues were duly framed by the Orphans’ Court for trial before a jury in the Circuit Court for Washington County.

The issues presented the usual questions of mental incapacity, undue influence, fraud and certain other alleged grounds of invalidity. The case came on before the Circuit Court (Chief Judge McLaughlin) and a jury, on June 28 and 29, 1965. At the end of the caveator’s case, the trial court upon motion by the caveatee directed a verdict for the caveatee on all issues except that of mental incapacity. Later at the conclusion of the whole case the caveatee again offered a motion for a directed verdict.

The trial court reserved its ruling at that time and charged the jury that the sole issue before the jury was that of mental incapacity as “the Court has ruled as a matter of law that the other things that were alleged to invalidate the will were not substantiated by any evidence, so, therefore, as a matter of law, the Court ruled on those various issues.” No exceptions were taken to the court’s charge. The jury was unable to agree, and a mistrial declared. The caveatee, pursuant to Maryland Rule 563 b 2, 1 filed a motion for a judgment n.o.v. which the trial court granted on August 3, 1965, filing a comprehensive and well-considered opinion and entering judgment in favor of the caveatee against the caveators for costs. This appeal followed.

The testator was born on March 7, 1875, and died on January 6, 1965, at the age of 89 (within two months of being ninety years of age). The challenged will was executed by him on December 30, 1959, when he was 83 years of age. The will is a simple one. It bequeathed $1000 to the testator’s sister, ³⁴⁷ Bertha; $1000 to his brother Thomas Little (Thomas), who also survived him; $1000 to St. Peter’s Roman Catholic Church in Hancock (where the testator had been a regular communicant all his life); and $500 to the priest of that church for saying Masses on behalf of the testator after his death.

The residue of the estate was bequeathed to his nephew Philip and Chlorous L. Little (Chlorous), his wife, “as tenants by the entireties, absolutely.” Philip was named as executor with the request that he be excused from giving bond. The subscribing witnesses were Brooks F. Smith (Brooks), the executive vice president of the Hancock Bank, and Juliana W. Ayers (Juliana), the cashier of that bank. The word “April” was stricken out by having a line drawn through it by a pen and the abbreviation “Dec.” was inserted below the word stricken out, so that the will was executed, as all agree, on December 30, 1959. There is little dispute about many of the facts.

The testator was born and raised in Hancock. His brothers Benjamin (who predeceased the testator) and Thomas had a store next to the testator’s home. After his mother and father died in 1925 and 1926, the testator lived by himself. He never married and continued to live alone.

His brother, Thomas, described him as a recluse, who did not want anyone “to bother him,” he “became sort of miserly.” He spent his adult years working for the Hancock Bank, ultimately becoming cashier of the bank, and a member and secretary of the Board of Directors. He resigned as cashier in 1951 and continued as a member and secretary of the Board until his resignation on December 30, 1958. The evidence shows that the testator was stubborn, irascible, unresponsive, uncommunicative, and strong willed. He was slovenly and ill-kept throughout his life.

He lived alone in squalor and refused to admit people to his home except on rare occasions. However, he was quite attentive to his duties at the Hancock Bank until he retired as cashier in 1951. After that retirement, he would each day, except Sunday, visit the Post Office, pick up his newspaper and go to the Board Room of the Bank, read his mail, prepare any deposits and then return home. He invested his money in stocks and bonds — always buying but never selling any securities.

At the time of his death on January 6, 1965, his estate was valued at approximately $700,- ³⁴⁸ 000. He was a faithful communicant at St. Peter’s Roman Catholic Church, attending Mass and receiving communion each Sunday. His general health apparently was good until 1958 when he began to suffer from an accute prostate condition. He also suffered from arteriosclerosis.

He was admitted to the Washington County Hospital in Hagerstown on June 30, 1958, when the prostate condition had become acute with attendant difficulty in urination. He was catheterized and thereafter had temporary relief except for the pain engendered by the presence of the catheter. He left the hospital on July 16, 1958, for further catheter drainage, the hospital report indicating that he would return later for surgery. He then went to the Hancock Nursing Home with an indwelling catheter to rest until his return to the hospital for the operation.

He returned to the hospital on August 28, 1958, and was examined on September 1, 1958. Doctor Warden’s report of his physical examination indicated that the patient was in better condition than when he was discharged. Dr. Warden successfully performed a transurethral resection of the testator’s prostate the following day, September 2, 1958. The testator was uncooperative for a time after the operation — attempting to get out of bed, swearing and making a general nuisance of himself.

He improved, however, and at the time of his discharge on September 13, 1958, the hospital report indicated that “he was voiding in a satisfactory manner.” Thereafter he returned to the Hancock Nursing Home where he remained until September 13, 1959, when he moved to the home of his brother, Thomas, near his own home place. The testator was re-admitted to the Washington County Hospital on October 21, 1959, suffering from “severe gross hematuria.” He was “very uncomfortable because of a full bladder.” A spinal anesthesia was administered and obstructions were removed from the bladder. After several days, with periods of restlessness and disturbance, the testator was discharged on October 29, 1959, the hospital report indicating that he was “fairly comfortable.” He then returned to the home of Thomas. On December 4, 1959, he fell, sustaining a hairline facture of the pelvis.

The testator was removed to Berkeley Springs Hospital where x-rays were taken and, contrary to the recommendations of the hospital authorities, he insisted on returning to Thomas’ home the same day — which he did on foot. ³⁴⁹ The Making of the Will The testator not having made a will, Bernard Little (Bernard), a nephew and one of the caveators, in March 1959 went from Baltimore to Hancock to visit his Uncle Ed. Bernard had previously discussed the making of a will by his uncle with Father Kerr, pastor of the testator’s church, and suggested to Father Kerr that he influence his uncle to make a will. On his second visit to his uncle in late March, 1959, Bernard suggested to his Uncle Ed that he make a will. His suggestion was apparently not appreciated by his uncle. Bernard described the result of the interview as follows : “He was downright discourteous to me and ordered me out of the room.

He told me to get the hell out.” Father Kerr, who administered to the testator and brought him his communion at regular intervals, testified that he had discussed with the testator the advisibility of making a will and reported later that in a subsequent conversation with him, Mr. Little “had followed his suggestion.” In a conversation a week later with Mr. Little, Father Kerr learned that “he had had a lawyer draw up the Will” and, at a still later time, that the will had not been signed by the testator. It is to be observed that the original suggestion to make a will was directly made to the testator by Bernard, one of the caveators, and thereafter indirectly through Father Kerr. As Bernard testified: “I am the one who pinpointed the whole thing.” Philip testified that his Uncle Ed had requested him in April 1959 to have an attorney prepare a will for him, giving him explicit instructions of what the will would contain. Philip relayed these instructions to an attorney who prepared the proposed will in accordance with the instructions.

This proposed will was given to the testator later in April. The testator put it in his coat pocket stating: “I won’t sign it right now. I may want to make some changes later on.” The testator kept the proposed will unsigned until December 30, 1959. On that day, in the middle of the morning, the testator asked Chlorous to go to the bank and “ask Mr. Smith ³⁵⁰ and Julie Ayers if they will come down to the house.” He did not state for what purpose he wanted them.

She drove down to the bank and delivered the message. The two officials of the bank came to the house. Chlorous let them in and then left. Brooks Smith testified that the testator took the proposed will from his pocket to sign and asked him and Juliana to witness it.

He stated that it was his will and asked Brooks if he wanted to read it, but Brooks declined to do this. After the will was signed, the witnesses visited for a while and the testator offered Brooks a cigar. No one was in the room when the will was signed other than the testator and the two witnesses. Thomas came in later but no one mentioned to him that a will had been signed.

The evening the will was signed — or the next morning — the testator gave the executed will to Philip to put “in a safe place with these other stocks.” Philip carried out these instructions and later delivered the will to the Orphans’ Court. Other facts will be stated in discussing the issues presented to us in this appeal. Questions Presented The caveators urge four questions: (1) Did the trial court err in declining to permit the lay witnesses for the caveators to express an opinion that the testator lacked testamentary capacity on December 30, 1959? (2) Did the trial court err in ruling that an insufficient foundation had been laid by the caveators to support the opinion of Dr. Manfred S. Guttmacher that the testator lacked testamentary capacity on December 30, 1959 ?

(3) Was the evidence, when viewed in the light most favorable to the caveators, legally sufficient to be submitted to the jury on the issue of the testator’s testamentary capacity on December 30, 1959? (4) Was the evidence when viewed in the light most favorable to the caveators, legally sufficient to be submitted to the jury on the issue of undue influence in the preparation and execution of the will dated December 30, 1959? We are of the opinion that all of these questions must be answered in the negative, and the judgment of the trial court must be affirmed. ³⁵¹ (1) Lay Witnesses We recently reviewed the Maryland law in regard to the admissibility of opinion testimony by lay witnesses in cases involving challenges to wills because of alleged mental incapacity in Ingalls v. Trustees, 244 Md. 243, 257-59 , 223 A. 2d 778, 785-86 (1966). We followed and quoted with approval from the opinion of the Court in Doyle v. Rody, 180 Md. 471, 481 , 25 A. 2d 457, 462 (1942) as follows : “But a non-expert witness is qualified to express an opinion as to a testator’s mental capacity only where the acts and circumstances, of which the witness had personal knowledge, are sufficient to form a basis for the formation of rational opinion.

He must state the facts as far as he can and disclose what led to his conclusion. If the whole testimony of the witness fails to show facts sufficient to justify the conclusion reached by him, he should not be permitted to express an opinion.” The lay witness must not only have an ample opportunity to observe the testator but the facts relied on by the lay witness must be sufficient to establish a lack of testamentary capacity. Plummer v. Livesay, 185 Md. 450 , 44 A. 2d 919 (1946). Seven of the lay witnesses who testified for the caveators were asked to give their opinion as to whether the testator on December 30, 1959, was of sound and disposing mind and capable of executing a valid deed or contract.

The trial court sustained the objection of the caveatee to the question addressed to six of the witneses, overruled the objection to that question addressed to Winifred Sachs Byers, but later changed its ruling — properly, we think — and ruled that her opinion that the testator lacked testamentary capacity on December 30, 1959, should not be considered by the jury. We will now consider the substance of the testimony of the seven lay witnesses. Edward M. Bearinger, the operator of the Hancock Nursing Home in which the testator was a patient from July 16, 1958, to September 13, 1959, testified that the testator was a very unusual patient. He could not get a conversation out of him.

The ³⁵² testator was very rough with the nurses, used profanity and objected strenuously when the piano, in the room just below his room, was played. The testator indicated that he was not able to afford the expense of the nursing home. The testator would not carry on a conversation regardless of who came to see him — relatives or nurses. The testator was very independent and when permitted to walk to church, resented having the witness or other employees at the nursing home accompany him.

In fact, he would order the witness to go back and would curse at him. The testator pulled out the catheter. The witness admitted on cross-examination that the testator paid his own bills at the nursing home by check, gave the witness a check for $125 every month and usually had the checks already prepared and signed before the testator was asked for them. The witness stated that the testator was a strong-willed person, “stubborn as could be,” but he added “If you knew how to attack him, he wasn’t strong at all.” He was a man difficult to influence in financial matters.

The witness did not see the testator for more than three months prior to the execution of the will and, in any event, did not testify to conduct which would justify an opinion that the testator lacked testamentary capacity on December 30, 1959. See Ingalls v. Trustees, supra. Fred C. Cunningham lived at the Hancock Nursing Home with his wife, Carrie, who was employed at the home. He observed the testator when he was there.

He testified to the same effect as Mr. Bearinger and the trial court properly refused to permit him to give his opinion in regard to the testator’s mental capacity on December 30, 1959, for the same reasons we have given in regard to Mr. Bearinger. Bernard Little, a nephew of the testator, who lived in Baltimore City after he moved from Hancock, saw the testator when Benjamin Philip Little, the father of the witness and the brother of the testator was buried on April 2, 1958. He noticed that the testator was shabbily dressed and at the buffet reception after the funeral, the testator ate very poorly and dropped his food. The witness also stated that his uncle was never clean and dressed shabbily “during the last years.” He did not talk and engage in too much conversation.

As already indicated, Bernard ³⁵³ had requested Father Kerr to influence the testator to make a will in March 1959 and when Bernard visited his uncle at the nursing home in March, 1959 he, himself, suggested to his uncle that he make a will, whereupon his uncle, as we have already indicated, was discourteous to his nephew. Bernard had suggested to his uncle that he leave all of his property to St. Peter’s Roman Catholic Church and when he refused to do this, suggested that he leave it to a hospital that would bear his name. The testator refused to do this and he “became very angry about it.” The witness saw the testator when he had returned to Thomas’ home in the fall of 1959 at which time the testator did not recognize him and complained about cheap cigars. One time the testator slept with his hat on.

He was very shabbily dressed and would not carry on a conversation with Bernard. On cross-examination, Bernard admitted that he had no hesitancy in suggesting to Father Kerr that the testator make a will in March, 1959. Bernard was obviously of the opinion that his uncle, the testator, was mentally competent to execute a will in March and April of 1959. On the few occasions he saw his uncle after April of 1959, the lack of recognition on one occasion, and sloppy dressing and going to sleep one time with his hat on, would most certainly not support an opinion that the testator lacked mental capacity on December 30, 1959.

Myrtle Little Palmer, a niece of the testator, who moved to Baltimore from Hancock, recalled seeing the testator on weekends in Hancock. She did not visit him when he was at the Washington County Hospital, but did visit him after Mass on Sunday when he was in the nursing home. She also visited him after he returned to Thomas’ home. She saw him on Christmas 1959.

He was very dirty and would be sitting in a chair with a cigar in his mouth. The testator did not recognize her on these occasions, but after she introduced herself, he said, “Ben has red hair didn’t he.” Ben, the father of the witness, did have sandy red hair when a younger man. The trial court was clearly correct in sustaining the objection to the question of whether in the opinion of the witness, the testator had testamentary capacity on December 30,1959. ³⁵⁴ Gorman B. Palmer, the husband of Myrtle Little Palmer, testified that the testator did not recognize him when he visited the testator with Myrtle, that the testator would never make conversation, he would doze off and go to sleep when the visitors were there and he was very dirty. Here again there were not sufficient facts given to justify the expression of an opinion in regard to the testamentary capacity of the testator on December 30,1959.

Winifred Sachs Byers, a niece of the testator, testified that she had grown up in Hancock, and that the testator was a frequent visitor in the family home. He would goi to dinner at her mother’s home frequently but at times had dinner at the home of the witness. She saw the testator in the Washington County Hospital. At that time his head was dirty, part of the dirt looked like a scab and he ate his ice cream ravenously and so fast that he got a terrible headache.

She used to visit him at the nursing home on an average of once a week. He failed to recognize her when he had not seen her for sometime. His food was spilled down all over him. His sense of humor was gone.

He told her he didn’t like to read magazines any more because he didn’t remember the theme of the story. He was “touchy and irritable.” When she and her father visited the testator on December 26, 1959, he asked her father how much money he had in the bank. Mrs. Byers testified: “Daddy said, ‘I’ll look at your bank book, it is in your pocket,’ and he looked at it and he just didn’t believe it was there and then he would ask again how much money he had and Daddy said, ‘You have stocks, too,’ and he said, ‘No, something happened to my stocks.’ And Daddy said, ‘Why do you say that’, and he said, T don’t ever see my dividend checks any more.’ Actually to say he talked to me while he was at Tom’s would be an overstatement. He didn’t actually talk to me very much at all.” As already set forth, the trial court permitted Winifred to state that in her opinion the testator was not capable of executing a valid deed or contract in December, 1959, on the ground that she had presented facts from which the jury might infer ³⁵⁵ that the testator did not know the amount or situation of his property in December, 1959.

Later, after hearing the testimony of Frank B. Sachs, the father of Winifred who was present with her at her visit on December 26, the trial court changed its ruling. Frank B. Sachs, the father of Winifred and husband of Bertha, a caveator and surviving sister of the testator, testified that prior to the testator’s going to the hospital in 1958, the condition of the testator’s home was terrible, the windows never washed, the floor never cleaned and cigar boxes were piled on the old dining room table. The testator never wanted visitors. He was filthy dirty.

His toenails were about one-half inch long. In regard to the episode about the stocks, the witness testified : “Q. Did he discuss stocks with you when he was at Tom’s house? A. Oh no. He said he didn’t have any. “Q. He what?

A. He said he didn’t have any. When I would try to bring it up, he would say that he didn’t have any. “Q. What did you say about that? A. I said Ed, you never sold any. You have told me all my life that you never sold any stock, and I said, ‘You surely have stock because you didn’t sell it.’ And he smiled and said, T don’t know what happened, I didn’t have any.’ Later on, he said, and I said, ‘Why how did you get rid of your stock — no one stole them from you, no one is going to do that, they couldn’t use them’ and then he said, T don’t see any dividend checks any more.’ Just like that.

Now, I talked to Tom about the dividends and I said, ‘What’s wrong Tom?’ and Tom said, ‘We don’t show them to him any more, he just loses them and tears them up and loses them around the place,’ and he said that they didn’t show them to him any more. * * * “Q. When he was at Tom’s house after he left the Nursing Home, do you know where he kept the pass book? A. Yes, he always wore a suit coat, the same as he wore in the bank and he had it just like this (indicating inside pocket) in his pocket. ³⁵⁶ “Q. He would keep it in his inside coat pocket? A. Yes. “Q. Would he ever say anything to you about his savings account? A. This was a ritual.

I would no more than go into Tom’s house and he would say, ‘Frank, how much money do I have in the bank? Will you go to the bank and find out?’, and I would say, ‘Ed, you have it right in this book inside your coat pocket’ and he would open it up and look at it and then he would put it back in again, and then he would say, ‘Will you go to the bank and find out just how much money I have in the Bank?’ and then I would say, ‘Ed, you just looked at your bank account, what you call your interest account.’ I would call it savings account. * * * “Q. Would he ask Tom how much he had? A. Yes, he would ask Tom and Tom would say, ‘Oh, you got $1300’, something like that in the bank and I would criticize Tom for it. “Q. Would you ask Tom why he said that? A. He said he would take his money out of the bank.

He said if you tell him how much he has, he would take it out of the bank and I said, ‘He’s a banker, he certainly would trust the bank.’ ” The witness also testified that once when he was with Thomas and the testator in the nursing home, Chlorous brought a tray of food, handed it to Thomas and walked out. The testator looked up at Thomas and said, “who was that woman who just went out of here.” The witness also testified that the testator at times, could not remember the name of his doctor, Dr. Warden. The trial court correctly sustained the objection to a question directed to the witness as to- whether the testator was competent in December 1959, and with the explanation given by the witness in regard to the dividend checks and what Thomas told the testator about his bank account, correctly changed its ruling in regard to Winifred’s opinion testimony. ³⁵⁷ In our opinion, the facts given by the lay witnesses were little more than a description of certain physical infirmities and certain odd traits of character which had been characteristic of the testator during his adult life. He was shabbily dressed, dirty, self-willed and stubborn, self-reliant, resentful of interference by others in his affairs, miserly and uncommunicative.

He did not want visitors and clearly did not want suggestions in regard to how he should bequeath his property. In our opinion, these facts were far from sufficient to justify a lay opinion that the testator lacked testamentary capacity on December 30, 1959. See Arbogast v. MacMillan, 221 Md. 516 , 158 A. 2d 97 (1960) and Giardina v. Wannen, 228 Md. 116 , 179 A. 2d 357 (1962). We have held that a testator who was over eighty years of age, who suffered from arteriosclerosis and, at times failed to recognize a person who had been his attorney for many years or a person who had been a tenant for many years on the testator’s farm, was not sufficient to justify a lay witness to give an opinion in regard to the testator’s testamentary capacity at some later time.

Ingalls v. Trustees, supra. In our opinion, the facts given by the respective lay witnesses would not justify their giving of opinions in regard to the testator’s testamentary capacity on December 30, 1959, and the trial court properly ruled that they could not give such opinions. (2) Other Witnesses In addition to the testimony of the seven witnesses above set forth in some detail, the caveators offered the testimony of Bertha W. Sachs, the sister of the testator, Jean E. Little, Gary Little, James W. Bevans, Philip James Bevans, James W. Sachs, nephews of the testator, Mary Josephine Kreig, a niece of the testator, and Gorman B. Palmer, the husband of a niece of the testator. The caveators also offered the testimony of Howard Kaylor, a broker who had reviewed the stock certificates of the testator and who testified that with six exceptions, all of the certificates dated 1958 or later were due to stock splits, stock dividends or rights offered by the companies.

The sister, niece and nephews mentioned were not asked if they had an opinion in regard to the testator’s testamentary capacity on December 30, 1959. Their testimony was largely repetitious of that of the lay witnesses from whom an opinion in ³⁵⁸ regard to the testator’s testamentary capacity on December 30, 1959 was elicited, i.e., that the testator lived in dirty surroundings, was dirty, uncommunicative and miserly. Bertha did testify that the testator told her that when he was in the nursing home in September, 1959 that Chlorous was pacing the floor until twelve o’clock at night and trying to make him make a will. Mr. Palmer testified that the testator never did recognize him.

In addition to this testimony, the parties stipulated that the testator’s savings bank account in the Hancock bank was opened on December 1, 1934, with a deposit of $1200. The account had varying balances thereafter until in December 1959 the balance was $27,365; in December 1960, it was $51,295 and in 1961 it was $57,881. He resigned as cashier of the Hancock Bank in 1951 and from the Board of Directors on December 30, 1958. The caveators then offered the testimony of Dr. Manfred S. .Guttmacher, a well-qualified psychiatrist licensed to practice medicine in Maryland, to express an opinion upon the testamentary capacity of the testator on December 30, 1959.

Dr. Guttmacher had heard the testimony of all of the witnesses theretofore offered by the caveators and had examined the medical records, both for the October 1959 stay at the hospital and for the December 1960 hospitalization, the later occurring approximately eleven months after the will of December 30, 1959 was executed. Dr. Guttmacher had never seen the testator during his lifetime and, of course, did not have the benefit of hearing the