Schwanteck v. Berner

Schmucker, J., delivered the opinion of the Court. This appeal brings up for our review the action of the Court of Common Pleas of Baltimore City in instructing the jury to find for the caveatee at the trial of issues sent to that Court from the Orphans’ Court of Baltimore City. Lewis Berner by his will made on May 28th, 1895, gave to his only child and daughter, Mrs. Hedwig Schwanteck, a legacy of two hundred dollars and gave all of the rest of his estate to his wife, Augusta, who was the stepmother of the daughter. The testator died on February 9th, 1901, and the daughter and her husband filed their caveat to the will as soon as it was offered for probate.

Under this caveat three issues were framed, respectively presenting the questions of the proper execution of the will, the testamentary capacity of the testator and. the procurement of the making of the will by undue influence and were sent to the Court of Common Pleas for trial. At the trial of the issues in the Court of Common Pleas the caveatee, at the close of the testimony for the caveators, offered three prayers, asking the Court to direct the jury to render a verdict in her favor. The first prayer asked for a verdict under the first issue because the due execution of the will was admitted by the caveators. The second and third prayers asked for a verdict under the second and third issues respectively, because there was no legally sufficient evidence of want of testamentary capacity or of the procuring of the execution of the will through undue influence.

The Court granted all of these prayers and its action in so doing forms the subject of the appeal. The due execution of the will was conceded at the argument of the case and it was not seriously contended that 'the record presented any evidence of want of testamentary capacity. The real controversy was whether there was evidence legally sufficient to go to the jury tending to show that the execution ¹⁴⁰ of the will had been procured by undue influence -practiced upon the testator by the caveatee. After a cáreful examihation’of the evidence appearing in the record which for the purpose of this inquiry must be taken to be true we have come to the conclusion that the learned Judge below, was right in granting these prayers.

It has- usually been the habit of this Court in cases like the present one'to. confine itself to stating its conclusions as to the legal sufficiency of the evidence and abstain from a review :'or discussion-of it m detail. Stirling v. Stirling, 64 Md. 150 ; Moore v. McDonald, 68 Md. 341 ; Hiss v. Weik, 78 Md. 433 . We will, however, briefly notice the testimony upon which-the action of the Court was predicated. It appears from the evidence that the ...testator was a native German who came to Baltimore in 1869’ when- about twenty-nine years old.

He shortly afterwards opened-a’saloon and restaurant, on Howard street near- the Richmond Market, which he continued to conduct until he gave up business about July,-1895. Those of the .witnesses-who..knew him agree: that he was a good businessman, industrious in his‘habits and ‘I unlike the general run of saloon men he was very temperate.” He made his will while still engaged in. business when about fifty-five-years old.and when he was, so far as .the record discloses, im good health and, although he.-lived for six years-thereafter,.there is.no evidence.that he made:any attempt to al,ter its provisions or.. expressed .any desire to do so. Nor. does it appear that he had ever declared a-purpose to make, any .other disposition' of his property than that accomplished' by his will. Here we. find everything-to strengthen and. nothing to weaken the normal presumption of- the law of, the: po's-: session of testamentary capacity on- his- part • at the time he made the will. . ■ . • .

There is also a complete absence from the record of any testimony connecting, the caveatee with the making of the will-, or the suggestion of its provisions, or of the .use by her of any persuasion or influence upon the testator to induce him to make a will. It does -not appear that- she. was present at the ¹⁴¹ execution of the will or took any part, in its preparation or was even aware that her husband had mad© it.'- Nor, as we have already said, is it shown that the testator had ever intended ■to make a different disposition of his property.than the one directed in his will. . . The contention of the appellant is .-that) the caveatee was inflamed with jealousy at the.-attention bestowed by her hus-r band upon his daughter and for that reason and because of her own selfish greed she estranged his mind from the daughter and procured him to exclude' her from other’ than a nominal participation in the distribution of his -estate. But in our opinion, while the testimony appearing in the record shows a fixed aversion on the part of the caveatee to the daughter there is no evidence connecting that aversion on her part with the disposition of his property made by the testator in his will.

The testimony bearing upon the relations existing between the caveators and the caveatee shows that the daughter was born to the testator in 1864 by a wife residing in Germany from whom he soon afterwards separated and was subsequenty divorced. He was married to the caveatee in Baltimore in May, 1883. In 1880 when living with the caveatee as