Sellers v. Qualls

Brune, C. J., delivered the opinion of the Court. The appellants are the caveators of the will of the late Cora A. Hinson Dunn, dated March 5th, 1949. The will was offered for probate in the Orphans’ Court of Baltimore County; but because of the filing of a notice of caveat, followed by the filing of an actual caveat, issues as to the validity of the will were framed in customary form and were transmitted to the Circuit Court for Baltimore County for trial before a jury. Only two issues were contested.

These were mental capacity and undue influence. The trial court sustained objections to testimony by two of the appellants, each a lay witness, ⁶³ and by a medical expert, a psychiatrist, with regard to the mental capacity of the testatrix; and at the conclusion of the caveators’ case, the Court directed a verdict sustaining the validity of the will on each of the issues. This appeal brings up for review the rulings directing verdicts on the issues of mental capacity and undue influence and the exclusions of testimony above referred to. The caveators are three sisters and the brother and the daughter of a deceased sister of the testatrix.

Two sisters, Mrs. Cavey and Mrs. Molesworth, did not join in the caveat. The caveatees are the Reverend Claude R. Qualls, who is the executor named in the will, and the Bethel Pentecostal Church of the Assemblies of God (usually referred to below as the “Bethel Church”), Jones Creek, Maryland, of which Mr. Qualls was and is the pastor. By her will, Mrs. Dunn devised her home property known as No. 7401 Bay Front Road, in the Jones Creek (Sparrows Point) area in Baltimore County, consisting of about 2.9 acres of land improved by a dwelling house, to the Bethel Church; and she devised and bequeathed the residue of her estate to “such persons as the laws of the State of Maryland declare to be my next of kin and heir of law.” The record does not disclose the value of the property devised to the Bethel Church or the value of the residuary estate. Estimates of the value of the home property given during the argument in this Court varied rather widely.

It is, however, a waterfront property and would appear to be of greater value than the residuary estate, even including in the latter a number of United States Savings Bonds, which were registered in the name of Mr. George Cavey, a brother-in-law of the testatrix, seemingly with instructions to divide them after Mrs. Dunn’s death among her next of kin. (This, too, is not entirely clear from the record.) Mrs. Dunn’s husband died in April, 1947, and shortly after his death, her sister, Mrs. Mamie Sellers, who is now one of the caveators, went to live with Mrs. Dunn at the latter’s home and helped to take care of her. Mrs. ⁶⁴ Dunn had been a large woman, weighing one hundred and eighty-five pounds or more; but as a result of diabetes, from which she suffered for some years prior to her death, her weight went down to about one hundred pounds. Though Mrs. Dunn was supposed to adhere to a strict diet to combat diabetes, she did not do so.

She entered St. Joseph’s Hospital in December, 1947, largely because of her diabetic condition and left about the end of that month on her own insistence and contra to medical advice. The chief grounds upon which the appellants found ■their claim of mental capacity on the part of the testatrix ■are briefly these: the effects of diseases from which she suffered; her rather frequent falls both indoors and outside, her rummaging through a garbage dump, which she permitted to be established on. her place (and on which she sometimes fell), and eating moldy bread and other food which she retrieved from it; once eating food which she had vomited; eating food given her by hucksters for her chickens; eating large quantities of cheese, liverwurst, braunschweiger or bacon, regardless of diet restrictions; licking her plate; making unfounded accusations of theft against a tenant, against her sister, Mrs. Sellers, and against others; hitting Mrs. Sellers with a saucer at some unspecified date in 1950; making unfounded allegations of attempts to poison her; hiding money in odd places; laughing, crying or talking to herself and seeming nervous or upset; and on one occasion wanting to put roomers out of the house and then letting them return almost immediately. The testatrix’ disgusting eating practices were manifested on some occasions, but the évidenee is far from clear as to when these occasions occurred or how long these practices were continued, or how frequently they occurred, or as to how bad the salvaged food really was. Much of .the salvaged food she fed to her chickens.

Her own eating of salvaged food seems to have been a manifestation of an odd and extreme form of miserliness; ⁶⁵ but miserliness is not necessarily the hallmark of insanity, and is more likely to indicate the reverse. Testimony given by Mrs. Sellers as to business transactions, including the execution of a number of deeds or contracts for the sale of land, in which the testatrix engaged, indicates the presence, rather than the absence of mental capacity, and it does not seem to have occurred to Mrs. Sellers at the time when her sister was entering into these transactions that she was incompetent to do so. Mrs. Dunn’s desire to avoid the expenditure of money was apparent in these transactions, for she employed the Reverend Mr. Qualls to act as her agent in negotiating them, since he charged her nothing for his services, and she did not wish to incur the expense of employing a lawyer. With a similar desire to minimize expenses she sought to deceive a hospital by wearing clothing retrieved from the dump instead of new articles purchased for her, with her own money, by one of her sisters.

Neither Mrs. Dunn’s change of mind about her roomers, nor her occasional hiding of money in odd places seems to indicate anything more than eccentricity. Her violations of diet restrictions were undoubtedly dangerous to her health, and probably to her life, but they did not impress the trial court, nor do they impress us, as signs of insanity. It is common knowledge that persons do violate diet restrictions at the risk, at least, of impairing their health; and this alone does not indicate a lack of such mental capacity as is required for the execution of a valid will. The question of testamentary capacity has been litigated many times in this State.

As was pointed out in Mecutchen v. Gigous, 150 Md. 79, 86 , 132 A. 425 , 429: “In Maryland we customarily take our statements of the law on proof of mental capacity to make a will from the expressions of Chief Judge Buchanan in Davis v. Calvert, 5 G. & J. 269 . The formulas which run through all our subsequent decisions may be read there, and it seems unnecessary to repeat them here at any length. But it has never been intended to ⁶⁶ require under these formulas any extraordinary mental capacity for making a will. Jones v. Collins, 94 Md. 403 ; Higgins v. Carleton, 28 Md. 115 .” See also Sykes, Contest of Wills in Maryland, Sec. 61.

The statute relating to mental capacity to make a will in force when Mrs. Dunn made her will and when she died (as well as now) is substantially identical with that involved in Davis v. Calvert. Code (1939), Article 93, Section 335; Code (1951), Article 93, Section 346; Acts of 1798, Chapter 101, Sub-Chapter 1, Section 3. As stated by Sykes, op. Cit., “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.” Applying'this test to the instant case, we agree with the learned trial judge that there was no suffiicient evidence to warrant a finding of mental incapacity. Mere eccentricity is not enough. Jones v. Collins, 94 Md. 403 , 51 A. 398 . Neither are delusions, unless the will is the product thereof, and the burden is on the caveator to establish this as a fact.

Harris v. Hipsley, 122 Md. 418 , 89 A. 852 . See also Gesell v. Baugher, 100 Md. 677 , 60 A. 481 ; Jones v. Collins, 94 Md. 403 , 51 A. 398 . If the testatrix harbored the belief that her sister, Mrs. Sellers, had tried to poison her, it seems clear that no such delusion controlled her in the making of the will, for Mrs. Sellers was a beneficiary under the residuary clause on the same basis as other close relatives as to whom no such suspicion had been expressed. Furthermore, the incident particularly relied upon by the caveators to establish such a belief seems to have occurred some time after the making of the will. ⁶⁷ On the question of mental capacity, we come now to the exclusion of certain evidence offered by the caveators.

The testimony of two lay witnesses on the mental capacity, or lack thereof, of the testatrix was excluded. Each of them was a sister of the testatrix, and each of them happens to be one of the caveators. The rule is well established, as stated by Sykes, op. cit., Section 67, that: “A witness who is not an expert, an attending physician, nor a subscribing witness to the will, is not competent to express his opinion as to the capacity of the testator, without first stating facts upon which his opinion may be adequately founded.” If such facts are not sufficient to support an opinion of the testator’s lack of mental capacity, the witness should not be permitted to express such an opinion. Doyle v. Rody, 180 Md. 471, 481 , 25 A. 2d 457, 462 ; Brashears v. Orme, 93 Md. 442, 448 , 49 A. 620, 622 ; Wood v. Hankey, 133 Md. 389, 397 , 105 A. 430, 433 .

(Compare Grill v. O’Dell, 113 Md. 625, 637 , 77 A. 984, 990 .) All of the facts upon which these two witnesses would have based their opinions are among those enumerated upon which the caveators rest their claim of the testatrix’ lack of mental capacity. We agree with the learned trial judge that they are not sufficient to warrant the expression of their opinion. The proffered opinion testimony of Dr. Freedom was properly excluded, we think, on the question of mental capacity on the authority of Grant v. Curtin, 194 Md. 363, 384-385 , 71 A. 2d 304, 313-314 ; Berry v. Safe Deposit & Trust Co., 96 Md. 45, 57-59 , 53 A. 720, 724-726 ; and Horner v. Buckingham, 103 Md. 556 , 64 A. 41 . In reaching this conclusion we are not unmindful of the statement in Grant v. Curtin, supra, that psychiatry has undoubtedly made great strides since the days of the Berry case, but what was said in Horner v. Buckingham, supra, at page 563, still is pertinent: “Evidence that the person has a disease which may or must eventuate in mental disease cannot prove, or standing alone tend to prove, that at a given point of time that he is actually so afflicted.

The tendency to mental infirmity, cannot ⁶⁸ per se prove the infirmity, it must be shown by facts. If a person has always shown through many years a high degree of mental soundness, in fact through his entire life, a jury ought not to be permitted to pronounce him insane, merely because a medical expert can be found who will testify that he is affected with a disease, that may eventually produce insanity, without other facts being shown that tend to prove that his speech or conduct is such as reasonably warrant the conclusion that such point has actually been reached.” The difficulty in the path of the caveators in the instant case, as in Horner v. Buckingham, supra, is to show sufficient manifestations of incapacity at the time of making the will to lay the necessary foundation for the admission of the testimony of an expert psychiatrist who admittedly never saw the testatrix. In concluding the statement of our views on this phase of the case it is hardly necessary to add that neither old age nor debility is necessarily a yardstick of mental capacity. Cronin v. Kimble, 156 Md. 489 , 144 A. 698 .

Neither does the fact that a will disappoints reasonable expectations of prospective beneficiaries establish lack of