Slicer v. Griffith

Murphy, J., delivered the opinion of the Court. On February 3, 1972, Raymond C. Gloyd (Gloyd), a patient at the Potomac Valley Nursing Home, signed an instrument purporting to be his Last Will and Testament leaving his entire estate to a nephew, John B. Sheer. Gloyd was then 93 years of age and in poor physical and mental health, suffering from arteriosclerosis, encephalomalacia (softening of the brain) and senility. The instrument was prepared by Judson Wood, an attorney who resided in Gloyd’s home with Sheer; Wood, who was unknown to Gloyd, was named as executor of Gloyd’s estate.

An earlier will executed by Gloyd in 1969 was destroyed by Sheer after Gloyd signed the instrument of February 3, 1972. Gloyd died on March 12, 1972, and two days later the instrument dated February 3, 1972, was admitted to administrative probate. Subsequently a petition and a caveat was filed by a number of Gloyd’s nieces and nephews. They claimed that the instrument dated February 3, 1972, was not Gloyd’s will and had not been duly executed by him; that Gloyd lacked testamentary capacity to execute a will on February 3, 1972; and that the document was procured by fraud and undue influence.

Issues were ⁵⁰⁴ thereafter framed, and the complaining nieces and nephews, as caveators, were named as plaintiffs; Sheer and Wood, as caveatees, were designated as defendants. After opening statements of the parties had been presented at the trial before a jury in the Circuit-Court for Montgomery County, the Court (Shearin, J.) ruled that since the execution of the will was not admitted by the pleadings and Gloyd’s testamentary capacity had been challenged, “there has to be a prima facie showing that there is a will about which the contest arises.” The court concluded that the burden was upon the caveatees, as proponents of the will, to establish “prima facie the execution of the will and the testamentary capacity of the testator first, whereupon the caveators will then proceed with their proof, lack of capacity, and lack of due execution . . . .” The caveatees objected to this procedure, claiming that testamentary capacity was the main issue in the case, and that the caveators, as the moving parties, had the burden of proving lack of testamentary capacity. The caveatees further objected to the court’s requirement that they prove prima facie execution of the will and testamentary capacity in the presence of the jury. They argued that these were preliminary matters solely for the court’s determination.

The court agreed that it alone would determine whether the caveatees made the requisite prima facie showing but ruled that the jury “as the trier of the ultimate issues of fact, . . . ought to have the benefit of . . . all of the testimony that is adduced.” The court said that “if the two aspects of the initial proof of . . . [the caveatees’] prima facie case fall short, then conceivably the matter might be ended there” but that if the court ruled that a prima facie case of due execution and testamentary capacity had been preliminarily established by the caveatees, that testimony “would be in along with any other evidence adduced to the contrary, or further evidence on behalf of the caveatees.” The court indicated that “it would save time not to have . . . [the same testimony] repeated [before the jury],” but its ruling did not preclude the caveatees from presenting the same, or additional evidence bearing on the ⁵⁰⁵ execution of the will, or on Gloyd’s testamentary capacity to the jury at a later stage in the proceedings if they desired to do so. In accordance with the court’s procedural rulings, the caveatees produced the testimony of Sally Robbins, the administrator of the nursing home and one of the attesting witnesses, and Slicer, as well as the deposition of Betty Tomlinson, the other attesting witness. Their testimony with respect to the execution of the will was somewhat conflicting but each expressed the opinion that Gloyd was mentally competent on February 3, 1972, to execute the will. At the conclusion of their testimony, the Court ruled that the requisite prima facie showing of due execution and testamentary capacity had been made and admitted the will into evidence.

The caveators then proceeded to put on their case-in-chief. Katheryne Van Metre, a second cousin and long acquaintance of Gloyd, Mary Gloyd, a niece, and Lloyd Whalen, a neighbor, each testified with respect to Gloyd’s mental condition. Dr. John G. Lodmell, Gloyd’s attending physician, testified with respect to Gloyd’s mental and physical condition, and the records of the nursing home, and the Montgomery County General Hospital, where Gloyd had been confined prior to his admission to the nursing home, were admitted in evidence. Following the presentation of this evidence, the caveatees moved for a directed verdict which the court denied.

Thereafter, the caveatees adduced documentary evidence in support of their case, but offered no additional testimonial evidence; they chose not to repeat the testimony given on their behalf before the jury at the outset of the trial, but instead incorporated it as part of their defense and rested. The jury returned special verdicts to the effect that while Gloyd signed the instrument dated February 3, 1972, he lacked testamentary capacity to execute a will on that date, and that the purported will was procured by fraud and undue influence. This appeal followed, the caveatees claiming that the lower court erred: (1) in requiring that they “proceed with testimony as to the execution of the will and also ⁵⁰⁶ to prove the competency of the testator first before any other evidence,” and (2) “in conducting preliminary hearings on the prima facie execution of the will and a prima facie determination of mental competence of the testator in the presence of the jury,” and (3) in admitting the testimony of the caveators’ witnesses with respect to Gloyd’s testamentary capacity, ánd (4) in “spbmitting issues to the jury on the question lof duress and undue influence,” and (5) in appointing “the foreman of the jury, who was the father of the judge’s bailiff and law clerk, without having made such relationship between the two first known to the defense counsel.” It is well settled in Maryland that where, as here, the execution of the will is not admitted by the pleadings, the caveatees bear the burden of presenting a prima facie case of the execution of the will before it may be received in evidence. Conrades v. Heller, 119 Md. 448, 452 , 87 A. 28, 31 (1913); P. Sykes, Contest of Wills in Maryland § 46 (1941).

Not so well settled is the question whether the caveatees must also make out a prima facie case of the testator’s mental capacity, where challenged, before the caveators are required to proceed with their case-in-chief. Early Maryland cases, such as Cramer v. Crumbaugh, 3 Md. 491 (1853), and Waters v. Waters, 35 Md. 531 (1872), indicate that the caveatees do have this duty. In Cramer , where a caveat was filed on the ground of lack of testamentary capacity, the caveatee had drawn the will and both he and his son were legatees; there the Court said that in such cases the “onus [probandi] is imposed on the party propounding a will; it is in general discharged by proof of capacity and the fact of execution . . . .” 3 Md. at 504 (emphasis in original). In Waters , where the validity of a will was similarly challenged on grounds of testamentary capacity, the Court said: “The onus was upon the defendants [caveatees] to ⁵⁰⁷ prove the due execution of the will, and for that purpose it was necessary for them first to call the subscribing witnesses, to testify as to the fact of the execution of the paper, and the mental capacity of the testator at that time . . . 35 Md. at 537 .

Another early Maryland case, Higgins v. Carlton, 28 Md. 115 (1868), involving a challenge to the testator’s mental capacity, held that the burden of proof (in the sense of the risk of non-persuasion) rested upon the caveators. There, the Court noted at page 141 that in some states the presumption of sanity was not applicable in will contests “and that therefore a party propounding a will must not only prove execution, but must also offer positive proof of capacity.” In rejecting this rule as not sustained by reason or the weight of authority, the Court stated that the presumption of sanity applied in will cases in Maryland, and that, after due execution of the will had been proved by the caveatees, the burden of establishing unsoundness of mind was upon the caveators. The Court said: “The very general language used in Cramer v. Crumbaugh . . . cannot be taken to control and alter this principle .... [T]he quo modo of proof must be in harmony with other recognized rules and principles. If capacity be established by evidence of a fact from which it is to be presumed, proof of capacity has in reality been given; and the onus cast upon the party propounding a will is discharged by proof of execution, because that being proved, the presumption of capacity follows.” 28 Md. at 144 .

Since Higgins and Waters , no Maryland case has directly addressed the question of onus probandi in precise terms of the requirement of proving a prima facie case where the issue is testamentary capacity. Cases from other jurisdictions, however, go off in all directions. Some say that the proponents of the will must, in the first instance, establish a prima facie case by proof of testamentary capacity without regard to the presumption of sanity. Other ⁵⁰⁸ cases hold that the burden of showing testamentary incapacity is upon the contestants throughout the trial.

Still other cases indicate, as in Higgins , that in view of the presumption of sanity, it is only necessary for the proponents of the will to prove due execution to establish a prima facie case, after which the caveators are required to proceed with their testimony; this appears to be the view of the Maryland law taken by Sykes, supra, § 46 at 55. See also J. Alexander, Law of Wills § 399 (1917); T. Atkinson, Law of Wills §. 101 (2nd ed. 1953); W. Bowe and D. Parker, Page on Wills § 29.33 (3rd rev. ed. 1961). We think Higgins represents the law of Maryland and is fully consonant with the firmly established rule in this State that generally, in view of the presumption of sanity, the caveators bear the burden of proving testamentary incapacity. See Phelps v. Goldberg, 270 Md. 694 , 313 A. 2d 683 (1974); Webster v. Larmore, 268 Md. 153 , 299 A. 2d 814 (1973); Ingalls v. Trustees, 244 Md. 243 , 223 A. 2d 778 (1966).

Cf. Kuenne v. Kuenne, 219 Md. 101 , 148 A. 2d 448 (1959) and Daugherty v. Robinson, 143 Md. 259 , 122 A. 124 (1923). Accordingly, we think the lower court erred in requiring the caveatees, over their objection, to make out a prima facie case, independent of the presumption of sanity, that Gloyd possessed the requisite testamentary capacity before receiving the will in evidence. 1 Under the circumstances of this case, the lower court’s error in this regard, and its insistence that the prima facie showing of testamentary capacity be made in the presence of the jury, does not require reversal. The caveatees claim only that they were prejudiced “by the proceeding requiring them to repeat so-called pronounced ‘prima facie evidence of execution and competency,’ or by referring to it and incorporating it by reference into the proceeding at an awkward and prejudicial posture of the Defendants’ case.” They contend that prejudice resulted because they