Syfer v. Dolby

Grason, J., delivered the opinion of the Court. William Cook, late of the City of Baltimore, died on the 17th day of May, 1942. A will, dated the 10th day of March, 1938, together with a codicil thereto, dated the 16th day of April, 1942, styled “second codicil to Will of William Cook,” was probated in the Orphans’ Court of Baltimore City on the 25th day of May, 1942. On the 25th day of July, 1942, a paper writing dated the 29th day of March, 1940, executed by William Cook, attested by three witnesses, was presented to said court for probate.

The testator in terms declares it to be a “Codicil to my Last Will and Testament bearing date the 10th day of March, 1938.” This paper will be referred to as the “secret codicil.” A caveat was promptly filed thereto and the following issues were sent to the Court of Common Pleas of Baltimore City, to be tried by a jury. The first issue submitted the question of whether the “secret codicil” was a codicil to the last will and testament of William Cook. The second issue submitted the question of whether the contents of the “secret codicil” were read or known to the testator at or before the time of its alleged execution. The third issue submitted the question of whether or not the “secret codicil” was revoked after the making and execution thereof.

The fourth issue submitted the question of whether the “secret codicil” was signed by William Cook, or by some other person for him in his presence, and by his expressed direction, and attested and subscribed in his presence by two or more credible witnesses. These issues were tried by ¹⁴² the court, sitting as a jury, and by its verdict the answer to the first issue was “No”; to the second issue “Yes”; to the third issue “Yes” and to the fourth issue “Yes,” and “from the orders or judgments rendered in the above entitled case upon the first and third issues” an appeal was taken by the defendants (caveatees) to this court. William Cook was a very successful man. He was engaged in the undertaking business as well as in a business called “Cook Motor Company.” He amassed a fortune, totaling approximately a million, two hundred thousand dollars.

His will is lengthy, comprising twelve and one-half pages of the printed record in this case. Item I of the will consumes at least seven printed pages of the record. On or about April 8, 1937, a corporation was formed under the laws of the State by William Cook, Harry E. Cook and Ralph P. Dolby. The name of this corporation is “William Cook, Incorporated.” By the first item of his will he directed that his business as funeral director “shall be continued after my death by William Cook, Incorporated.” The general scheme set up in Item I of the will was that all of the assets of his business as funeral director and the business of “Cook Motor Company” were to be transferred to the corporation.

The way and manner of accomplishing this is meticulously and at length set out in this item, which is too long to be embodied in this opinion. In sub-section one of Item I he bequeathed stock in the corporation, in percentages designated, to certain individuals, and in sub-section two of said item he bequeathed stock in said corporation, in terms of cash, to certain employees, conditioned upon their surviving him and in his employ at the time of his death. He suggests and advises how the corporation should be run. The testator evidently intended that the corporation bearing his name and by which the business was to be conducted, was to be a memorial to him.

This will was prepared by Mr. Ernest E. Wooden, who is a lawyer and an accountant, and who ¹⁴³ had close relations with the testator in auditing his business from time to time. The testator consulted Mr. James T. Carter, vice-president and general counsel of the Fidelity Trust Company, about his will and Mr. Wooden, in drafting it, with the consent of the testator, collaborated with Mr. Carter. Mr. Wooden, at the request of the testator, prepared three codicils to the will. The first, dated the 13th day of May, 1940, and styled “first codicil,” revoked a bequest in Item I of the will to Ralph Hill, Hill having died since the execution of the will; and Item II of the codicil directed that the fifteen institutions mentioned in Item XIII of the will must be in existence at the time of his death in order to receive the bequests made respectively to the institutions specified, and further directed that if he held any evidence of indebtedness of any of said institutions at the time of his death that the same be distributed to it, at par value, as a part “of its S5000.00 bequest.” The second codicil is dated the 8th day of March, 1941, and is styled “second codicil” to said will.

The testator’s brother, Eugene Cook, died on March 5, 1941, and this codicil revoked all provisions in the will pertaining to his said brother, which are contained in Item I of the will. The other provisions in this codicil do not affect the determination of this case. The third and last codicil prepared by Mr. Wooden is dated the 13th day of October, 1941. Mr. Wooden, in his testimony (record page 16), said he “decided to combine the original first codicil and the second codicil in a new codicil which I termed a first codicil, because the first and second codicils were to be destroyed.” This third codicil repeats the revocation of all of the provisions in the will made to the brother Eugene Cook, because of his death, and refers to Item I of the will.

It was intended, according to Mr. Wooden, to be a combination of the first and second codicils but it omits the revocation of the bequest to Ralph Hill contained in the ¹⁴⁴ first item of the will, which wás effectuated by the first codicil. The fourth codicil is dated the 16th day of April, 1942, and is styled “second codicil to Will of William Cook.” This paper was not prepared by Mr. Wooden, but under the following circumstances. The testator took a paper written by himself in pencil to Margaret C. Cur-ran, an employee. Miss Curran testified: “He had forgotten to give his jewelry and some household effects; he had just remembered it, and wanted to write a new codicil.

He had another codicil dated in October, 1941, and asked me to combine both.” The revocation of the provision for Eugene Cook, contained in Item I of the will, is repeated and the rest of the codicil does not affect the decision of this case. Thomas J. Murphy, who had been with Mr. Cook from 1912 until the death of the testator, was vice-president of William Cook, Incorporated, and was manager of the funeral business. He and Mr. Cook occupied the same office, in which there was a safe. Murphy, together with Dolby, had access to the safe by a key, which each used from time to time.

Murphy testified that Mr. Cook told him and Dolby “if anything should happen to me, you will find the Will in the box in the safe.” After Mr. Cook’s death he opened the safe, found the box and in it an envelope. Mr. Wooden testified that he was present at the time and said: “It was a large white manila envelope and it had written on the outside, in Mr. Cook’s handwriting, ‘Last Will and Testament of William Cook’.” He gave the envelope, with its contents, to Mr. Carter, and it contained the'will and the codicil dated the 16th day of April, 1942, styled “second codicil to the will of William Cook,” which were probated in the Orphans’ Court. Wooden further testified that Cook told him in May, 1942, he (Wooden) “would find his will in his box.” On the 10th day of July, 1942, Harry E. Cook gave to James Sollers, who had been employed by the testator for twenty years, two dark suits of clothes that belonged ¹⁴⁵ to the testator. Before Sollers took the clothes to be cleaned he went through the pockets and in the inside coat pocket of one of the suits he found the paper writing dated the 29th day of March, 1940 (which we call the “secret codicil”), which he turned over to Mr. Harry Cook and which was presented to the Orphans’ Court of Baltimore City and is the subject of this suit.

The “secret codicil” provides: “I hereby revoke Item I — on page 1 — of my last will and also revoke any and all codicils made since my last will — and cancel all bequests in reference to gifts of stock of the Wm. Cook Corporation, and change the same to read as follows: I hereby give and bequeath stock in Wm. Cook Corporation to the following employees, if still in my employ,” and after the name of each person is a specific sum of money. In Item I of the will Ralph P. Dolby was bequeathed 16 per cent, and Thomas J. Murphy 5 per cent, of said stock.

By this codicil they receive $20,000 and $10,000 worth of stock respectively in said corporation. James Sollers was given $5,000 worth of stock in the place of $2,500 worth as provided by Item I of the will. Howard H. Hubbard was given $2,500 worth of stock in the place of $1,500 worth as provided by Item I, and Florence Mullikin was given $2,500 worth of stock, but whether she is Florence Mullikin Tuerke to whom $1,500 worth of stock was bequeathed in Item I of the will is not known. Mr. Robertson was given $2,500 worth of stock, Walter Penny $2,000 worth, and Mr. Meyer $1,000 worth.

James Coekrill, who was given $1,500 worth of stock in Item I is, by the “secret codicil” given $1,000 worth of stock. Miss Taveau is given $1,000 worth of stock and James Devine, who was given $1,500 worth of stock in Item I of the will, by the “secret codicil” is given only $1,000 worth of stock. A line is run through the amounts respectively opposite the names of Hubbard, Mullikin, Penny and Meyer' and it would appear that $2,500 was attempted to be substituted for the amount of stock that Penny and Meyer were originally be ¹⁴⁶ queathed. There is a numeral “10” next to the amount of $5,000 opposite the name of James Sollers.

Robertson, Penny, Meyer and Miss Taveau were not mentioned in Item I of the will. The above bequests are conditioned upon whether the persons named were employees of Cook at the time of his death and on a further condition that “they invest in the Wm. Cook Corporation, and purchase stock in an amount equal to one-half the amount of cash bequeathed to them by my last Will.” Mr. Cook also says in this codicil: “I further direct a further distribution of said stock of the Wm. Cook Corporation to be given as follows, without any purchase of stock in the said Corporation: My Estate, $35,000; Harry E. Cook, $25,000; Ernest E. Wooden, $5,000; Robert C. Jones, $1,000.” He-provides in this codicil that the balance of said stock is to be sold to “employees of said Corporation, or held in the Treasury of said Corporation, to be decided on by the Board of Directors of said Corporation” and that the dividends of said corporation be paid in equal amounts to five named institutions.

The “secret codicil” then provides: “I hereby cancel all codicils made previous to this one and desire this codicil become effective at once, and direct all other items, except the one herein mentioned of my last Will made on the 10th day of March, 1938, was carried out as written.” The circumstances of the execution of the “secret codicil” are as follows: Mr. Cook called on Mrs. Carmelite E. Hubbard, who was a public stenographer at the Emerson Hotel, Baltimore. She had been recommended to him “as doing everything strictly confidential.” He stated to her, “I have a very important document I would like you to fix for me. I have been here on two previous occasions.” He handed her some yellow sheets of paper which contained writing in pencil. He said to her: “This is a codicil I am putting to my will.

I have a secretary in my undertaking establishment, but I do not care for this to go through the channels of business.” She type ¹⁴⁷ wrote the “secret codicil” for him from the pencil memorandum. She procured the witnesses and he signed and executed it in the presence of the witnesses. “Then Mr. Cook put the codicil in his pocket, thanked me, paid me, and he left.” The extent to wdiich the “secret codicil” may revoke Item I of the