Tufts v. Poore

Prescott, J., delivered the opinion of the Court. This is an appeal by the defendants below, Nancy Narcissa Poore Tufts, individually and as executrix of the estate of Pearl Payseur Poore, and William O. Tufts, from a determination by the Circuit Court for Prince George’s County, ⁵ upon a verdict of the jury, that the codicil of Pearl Payseur Poore, dated July 3, 1955, was procured by fraud. The proceeding arose upon a caveat instituted in the Orphans’ Court of Prince George’s County by the plaintiffs, James Edward Poore, III, Gerald G. Poore, Walter H. Poore, Elizabeth Gilbert Poore, individually and as mother and next friend to Richard T. Poore, Suzanne P. Poore and Thomas W. Poore, infants. Said Orphans’ Court transmitted for trial the following issue: “Was the said paper writing dated July 3, 1955, purporting to be a codicil to the last will and testament of the said Pearl Payseur Poore procured by fraud exercised and practiced upon her?” The jury by their verdict answered “Yes.” There was also an issue upon the question of undue influence to which the jury answered “No,” but it is not involved in this appeal, except insofar as it relates to the admissibility of certain testimony.

Sometime prior to 1939, the testatrix, Pearl Payseur Poore, and her husband, Colonel James Edward Poore, Sr., acquired about fourteen acres of land on the banks of the Potomac River in Prince George’s County, Maryland. After Colonel Poore, Sr., was retired from military service, he and his wife built a home on the property and made their residence there. The home was built in 1939 and is known as Tulip Hill. The testatrix and her husband had two children, Colonel James Edward Poore, Jr., and Nancy Poore Tufts.

Colonel Poore, Jr., married Elizabeth Gilbert Poore in 1927. Six children were born of the union, all of whom were plaintiffs herein. Nancy Poore Tufts married William O. Tufts in 1941. The Tufts have no children.

Mrs. Tufts lived at Tulip Hill with her parents until her marriage in 1941. She and her husband returned to Tulip Hill about 1942, and have continuously resided there since that time. Colonel Poore, Jr., and his family lived during this period at various Army posts throughout the world, until he was retired from active service for a partial physical disability. He and his family then took up residence in South Carolina. ⁶ During the 1940’s Colonel Poore, Jr., and his family visited from time to time at Tulip Hill, and Pearl Payseur Poore occasionally visited her son’s family in South Carolina.

After her husband’s death in 1947, Pearl Payseur Poore executed her last will and testament under date of August 2, 1948. This will was drawn with the legal assistance of the Army’s Judge Advocate General’s Department, and the validity of this document is not questioned in this action. The pertinent dispositive provisions of the' will, as stated by the parties, were: 1. Tulip Hill was left to Nancy Poore Tufts for her lifetime, with a vested remainder over to Suzanne P. Poore, the remainder being subject to divestiture upon the happening of certain conditions which are not material here. 2.

Personal effects, and household goods were left to Nancy Poore Tufts for her lifetime, with remainder to Suzanne P. Poore, the remainder being subject to divestment as in item 1 above. 3. A brick house and lot in Washington, D. C., was left to Colonel James Edward Poore, Jr., in fee simple. 4. and 5. One thousand dollars in government bonds or the equivalent in cash was left to each of the following grandchildren of the testatrix: James Edward Poore, III, Gerald G. Poore, Walter H. Poore, Richard T. Poore, Thomas W. Poore and to her daughter-in-law, Elizabeth Gilbert Poore. 6. The residue of the estate, including all cotton mill and bank stock, bonds, building and loan accounts and cash, was given one-half to Colonel James Edward Poore, Jr., outright, and one-half to Nancy Poore Tufts for her lifetime, with a remainder over to Colonel James Edward Poore, Jr., or his issue.

William O. Tufts was not left anything in the will. The testatrix did, however, include a request that her son-in-law be permitted to live at Tulip Hill after the death of Nancy Poore Tufts, so long as he should remain unmarried. In September, 1952, the testatrix underwent an operation. She was hospitalized until January, 1953.

She stood the operation fairly well, although she was confined to a wheelchair for a time and was obliged to utilize a nephrector tube. De ⁷ spite these handicaps, she remained quite active and it is not disputed that she was mentally alert until her death. In the winter of 1954-1955, the testatrix planned a trip (her second) to Europe in the company of Mr. and Mrs. Tufts. In June of 1955, the testatrix wrote to her daughter-in-law, Elizabeth G. Poore, and requested that she and her husband come to Tulip Hill for the summer of 1955 in order to take care of the house in her absence.

The Poores arrived at Tulip Hill on approximately the 29th of June, 1955. In the meantime, Colonel Poore, Jr., who had been suffering from tuberculosis for some time, became seriously ill. When the Colonel and his family arrived in Maryland, the former was immediately taken to Walter Reed Hospital where it was found he had leukemia. Elizabeth G. Poore and her children, Captain James Edward Poore, III, Richard T. Poore, Suzanne P. Poore and Thomas W. Poore, stayed at Tulip Hill.

On July 3, 1955, the testatrix telephoned neighbors, Hilda N. Himmler and James B. and Henrietta Gillespie, and requested them to come to Tulip Hill and witness a codicil to her will. The three witnesses arrived in the early evening. Prior to their arrival, Nancy Poore Tufts, according to her testimony, had typed up her mother’s codicil from a copy of a longhand draft furnished her by the testatrix. The testatrix and the three witnesses gathered in the living room at Tulip Hill and the codicil was executed with all proper legal formalities.

At the same time and utilizing the same witnesses, Nancy Poore Tufts executed a will of her own. The codicil executed on July 3, 1955, contained the following provisions: (1) Nancy Poore Tufts was left Tulip Hill, in fee simple. (2) Nancy Poore Tufts was left one-half “my mill and bank stocks, bonds, building and loan, and all cash monies,” absolutely, with the request that she divide them equally among the testatrix’ grandchildren upon her death. (3) Elizabeth G. Poore was left “all my stock in the Charlestown National Bank.” (4) William O. Tufts was left 25 shares of “PEPCO” stock. ⁸ (5) Nancy Poore Tufts was requested to divide her father’s guns and trophies among the testatrix’ grandchildren.

After the two documents were signed, the testatrix requested Mr. Tufts to take them upstairs and put them on her desk. Mr. Tufts did so. On July 6, 1955, the testatrix, together with Mr. and Mrs. Tufts, departed for Europe. They returned to Tulip Hill on approximately the 20th of August, 1955.

The papers remained in Pearl Payseur Poore’s room until she and the Tufts returned from Europe. Nancy Poore Tufts and William O. Tufts both testified that it had been their intention and that of the testatrix to deposit the documents in the safe deposit boxes before the trip, but that due to the heat of the summer and the pressure of time, the trip to the bank was never made. A few days after the return from Europe, Mrs. Tufts placed her mother’s codicil in her mother’s lock box at the bank; she put her own will in a strong box in her study. Colonel James Edward Poore, Jr., died on October 14, 1955.

After her brother’s death and before her mother’s, Nancy Poore Tufts destroyed the will she had made on July 3, 1955, and has made no other. She testified that she did this because her brother was a beneficiary under the will and that she thought his death made a new will necessary. Mrs. Tufts did not tell her mother that the will was destroyed. The testatrix died on February 21, 1956.

I The principal question involved herein is whether there was-sufficient evidence upon which to submit the issue of fraud to the jury. In making such a determination in this type of case, we must, in accordance with the rule generally, examine all of the evidence offered on behalf, and in favor, of the caveators, assume its truth, and then consider it, together with all reasonable inferences that may be drawn therefrom, and decide whether the jury could reach a rational conclusion that the codicil was induced by fraud perpetrated upon Mrs. Poore. Smith v. Diggs, 128 Md. 394, 396 , 97 A. 712 . There was testimony and reasonable inferences to be drawn ⁹ therefrom from which the jury could have concluded: that the testatrix was a lady who had deep bonds of love and affection for her son and his family, and wanted him or one of his children ultimately to inherit not only Tulip Hill, the lovely home on the Potomac, but substantially all of her considerable personal estate; 1 that there was no hope of descendants through her daughter; that she had a pronounced dislike for her son-in-law; that her intention, as expressed in her will of 1948, was that Mrs. Tufts would inherit only a life estate in the property left her; and that the testatrix executed the codicil at her daughter’s request and importuning upon the representation that the codicil would save the daughter embarrassment and that it would not substantially alter the disposition of her mother’s estate as provided in the 1948 will, because the daughter would simultaneously execute and continue in existence a will of her own which would accomplish substantially the same disposition of her mother’s estate.

There was also evidence and inferences to be drawn therefrom from which the jury could have further concluded: that the testatrix’ codicil and the daughter’s will, her first and only one, were executed at the same time and place and attested by the same witnesses; that both instruments were taken into the custody and control of the mother and remained in her room at Tulip Hill until the mother and daughter returned from Europe; that the instruments were taken from the mother’s room by the daughter, and the mother’s codicil was placed in a lock box at the bank, but the daughter’s will was retained by the daughter at the residence; that the daughter destroyed her will shortly after her return, on August 20, 1955, from the trip abroad (she testified she destroyed it after her brother’s death on October 14, 1955, but before her mother’s decease in February, 1956) without advising her mother, and has made no other; that at the time the daughter promised her mother to execute and con ¹⁰ tinue in existence a will that would dispose of the mother’s estate substantially in accordance with the mother’s will, the daughter made the promise with a present intention not to perform her agreement; and that the daughter’s promise was made with the intention of deceiving her mother, it did deceive the mother and induce her to make the codicil, and without which she would not have made it. Something should be said with reference to what has just been stated concerning the permissible inference of the daughter’s intention at the time of making the promise. A person’s intention or state of mind at any particular time is difficult to prove. A fraudulent pre-existing intent not to perform a promise made cannot be inferred from the failure to perform the promise alone.

Lipp v. Lipp, 158 Md. 207, 216 , 148 A. 531 . But, it may be considered with the subsequent conduct of the promisor and the other circumstances surrounding the transaction in sustaining such an inference. Lipp v. Lipp, supra, at page 216, and page 219; Councill v. Sun Ins. Office, 146 Md. 137, 150 , 126 A. 229 ; Annos., 51 A. L. R. 165, 125 A. L. R. 892; Cutler v. Bowen, 51 P. 2d 164 (Cal.

App., 1935). Cf. 1 Moore on Pacts, sec. 100. And it has been stated that under certain conditions, a failure or refusal to perform is strong evidence of an intent not to perform the promise at the time it was made, as where