Tyson v. Tyson

Bowie, J., delivered the following dissenting opinion : The last will and codicils of Isaac Tyson, Jr., were probated in common form, in the Orphans’ Court of Baltimore City, on the 29th of November, 1861, by his executors, James and Jesse Tyson, and the petition of the appellants, caveating the codicils of the 12th of April, 1860, and the 15th of January, 1861,'was filed the 5th June, 1871. On the 28th of August, 1871, plenary proceedings having been instituted by the appellants, the Orphans’ Court directed several issues to be sent for trial, to the Superior Court of Baltimore. These issues presented substantially the questions whether the papers dated the 12th of April, 1860, and 15th January, 1861, respectively, purporting to be codi ⁵⁹⁵ oils to the last will and testament of the deceased testator, or either of them, was procured by fraud, misrepresentation, undue influence or other devices which he was then too weak to resist, etc. At the trial in the Superior Court, a verdict was found for the defendants, alter a series of prayers submitted respectively by the caveators, and caveatees ; those of the former being refused, and those of the latter granted ; to which action of the Court below the appellants excepted and prayed an appeal. The instructions granted at the instance of the appellees, among other propositions declared, that there was no evidence in the cause, that the testator executed the paper writings of the 12th of April, 1860, and of the 15th of January, 1861, purporting to be codicils to his last will and testament, under the influence of suggestions, importunities, or misrepresentations, when his mind from its enfeebled state, was unable to resist the same, and that the jury must find for the defendants on the second and fifth issues.

That there was no evidence in the cause, that the said paper writings were procured by undue influence, fraudulent devices, importunities, misrepresentations and deceits, practised upon the testator, which under the circumstances, did not leave him free in the disposition of his estate, and that the jury must find for the defendants on the third and sixth issues. Among the propositions submitted by the appellants and rejected by the Court were the following: 1. If the 'jury should find from the evidence, that in executing the codicil of the 15th January, 1861, the testator was influenced by an estimate of his estate, such as no rational mind would have made in view of the actual value of his estate, as shown by the evidence, the jury might find that he did not at the date of said codicil possess testamentary capacity, and so finding, their verdict should be for the caveators on the fourth issue, not ⁵⁹⁶ withstanding they might find that the testator, as to all other matters, was sane and rational and capable of making a valid deed or contract.. And in ascertaining whether said alleged codicil was executed under the influence of such an estimate, the jury might consider the codicil'itself, the original will and first codicil, and the proof offered as to the actual amount and vadue of the estate of the testator, and all the other facts and circumstances of the case. 2.

If the jury believed the alleged codicil of the 15th of January 1861, was executed by the testator under the influence of an estimate of his estate, and at that time,, and before, by reason of age and infirmities was unable to manage his property without the assistance of his executors, who in consequence of his debility, had been entrusted with the management of his estate, so as to enable them to know its real amount and value; and the testator so confided in them, that at the time of executing the said codicil, they possessed influence over him, and that the estimate of his estate, under the influence of which he executed said codicil, was false and inconsistent with its actual value, and the said executors derived advantage from the execution of the said codicil, and were aware that the testator in making the codicil was influenced by such false estimate, then, unless the jury believed the said executors informed the testator, the said estimate was erroneous, the jury might find the said codicil was obtained by fraud, notwithstanding they might believe the testator was of sound mind and capable of making a valid deed or contract-. And in ascertaining whether the testator was influenced to make said codicil by a false estimate of the value of his estate, the'jury might consider the original will and the first and second codicils, in connection with the other testimony in the case. . 3. If the jury believed that the testator was induced to make the codicil of the 12th of April, 1860, by belief in ⁵⁹⁷ the truth of the reports as to the conduct of the mother of the caveators, and such reports were calculated to prejudice his mind against her, and the defendants by their influence over him induced him to believe said reports, and withheld all social intercourse with her, pretending to believe said reports as long as the testator lived, and after his death, renewed their intercourse, declaring they had not believed them, the jury might find the codicil of the 12th of April, 1860, was obtained by fraud and undue influence, etc. 5. That there was evidence on the face of the codicil of January 15th, 1861, from which the jury might find, that the executors at the time of its execution, were aware the testator made the same on the basis of an estimate of his estate, and that the said estimate, and the effect which it would have upon the disposition of the estate oí' the testator, by the codicil, was also known to the executors at the time of its execution.

The last prayer was rejected “as unnecessary to be passed upon by the Court, seeing that the Court has already determined by the granting of the caveatees’ prayers, that there is no sufficient evidence upon which they can find for the plaintiffs — the caveators. A synopsis of the evidence offered by the caveators to support the issues, on their part, is necessary to enable us to judge of the correctness of the propositions submitted in their prayers and of the propriety of the action of the Court, in rejecting them and granting the instructions given by it, in favor of the caveatees. The evidence embodied in the bills of exceptions consists of written documents, letters, and oral testimony, too voluminous to be repeated, but its substance will be condensed as far as practicable in illustration of these views. Evidence was offered by the caveators, tending to prove that the testator was a gentleman far advanced in age, as far back as 1856 or 1857, in very bad health, tremulous, and palsied ; in consequence ⁵⁹⁸ of which extreme ill health, his sons, Jesse and James, had taken hold of his business.

His estate at the date of his will, 7th January, 1860, was worth nearly $800,000. His family consisted of a wife, a daughter jind four sons, Jesse Tyson, Isaac Tyson, called Isaac the 3d, James W. Tyson and Richard W. Tyson. Isaac Tyson the 3d, was married and had two children living at the death of the testator. In a conversation in 1859, with a witness.'he said that he thought that such of his children as knew how to take care of their property, he would leave them their part free, but that the others he would leave in trust, and that nothing could induce him to make any other difference between his children ; that he did not think a parent had any right to make any other distribution than this between his children ; that, testator was the most affectionate of parents.

At this time, the habits of Isaac Tyson, the 3d, were bad. His father seemed to have more affection for him than for any other of his children. He knew his habits when he stated his views of his duty to his children, and the habits had at that time been for some years as bad as they could be. He spoke of his affection for Isaac’s children and seemed to be more interested in them on account of the father’s habits.

Isaac Tyson, the 3d, had .become deeply embarrassed from improvidence or other causes. His family and himself were supported by his father. His household establishment in Virginia was broken up; he was induced to go t,o sea, (according to the evidence of the caveators) by the influence of his mother and brothers, against the wishes and advice of his father, and his wife arid children boarded in Baltimore. In this state of affairs, the testator, shortly before the date of his will, (the 7th of January, I860,) called on his ⁵⁹⁹ counsel, and told him he wanted him to draw his will. “He brought to the witness, a will which had been drawn for the testator by Mr. Talbott, of the firm of Dobbin & Talbott.

He said be wanted-a shorter and less technical will, and witness accordingly drew a shorter paper in more familiar language. The testator’s counsel testified that the testator had frequently talked to him of' making a new will, but had done nothing towards carrying that purpose into effect, until he came to the office of the witness, bringing with him a draft of the will made by Mr. Talbott. He objected to the technical language of that will; and witness therefore expressed the same ideas in his own language. There was no alteration in the substance.

The will of the 7th January, 1800, modelled on one previously-drawn by Mr. Talbott was then executed. This will, after making provision for his wife, devised to his three sons, Richard, Jesse and James, as trustees, in trust for his daughter, Mrs. H. A. Morris, twenty-five thousand dollars. To his sons, Richard, Jesse and James, $25,000 each. After reciting that he had been engaged in partnership with his son Jesse in carrying on chrome works, and investing his executors with discretionary powers to continue the same, providing compensation to them for such services, he devised to the trustees in fee the residuum of his estate to be divided into five equal parts, and held in trust as follows: one-fifth in trust for Mrs. Hannah A." Morris, for her sole and separate use; one-fifth in trust for Richard W. Tyson; one-fifth in trust for Jesse Tyson; one-fifth in trust for James W. Tyson ; one-fifth in trust for his son Isaac Tyson, the 3d, for life, he to take and receipt for the income thereof only, but without power of anticipation or involuntary alienation; should he die without child, children or descendants, the said one-fifth to go to the brothers and sister of Isaac; should he leave ⁶⁰⁰ a child or children, the said fifth to go to said child or children, and should all of the children of said Isaac die without descendants, the said fifth to go to the brothers and sisters of the said Isaac, “per stirpes,” and not “per capitathe said fifth in whosoever hands it might be, to be subject to an annuity of $1,200, payable to the widow of said Isaac, during her widowhood.

The -will further directed that all sums, charged against his sons and daughter in his books, at his death, and all moneys for which he might be responsible on their accountat that time, should be charged against their respective legacies and portions of his estate, by his executors. About four months after the execution of the will,.without any ostensible reason or apparent change in the conduct or condition of the devisees, the codicil of the. 12th of April, I860, was executed. This codicil revoked so much of the will as relates to the payments therein directed to be made to his son Isaac Tyson the 3d, and his wife, in the event of his dying before her, and directs the trustees to pay Isaac only so much of the income as in their judgment may he proper in vieio of all the circumstances, and instead of $1,200 to Ms wife, if she survived him, to pay her only such part oCs they may think proper; the excess of the income to be. held in trust for the benefit of Isaac, aad the excess of the allowance to his wife to be held in trust for the benefit of the children of said Isaac. The Codicil of the 15th of January, 1861, was next executed.

It declares that its provisions in regard to his son Isaac Tyson the 3d, his wife and children, shall be substituted in lieu of the provisions made for them in his last will and testament,' which are thereby revoked and annulled. By this codicil the testator bequeathed $50,000 to his executors, etc., in trust, to be invested by them in their discretion,' in securities producing income, and held for the following purposes: ⁶⁰¹ 1st. In trust during the life of his son Isaac, to expend the income thereof, in their discretion as to time, manner and objects of expenditure, for the maintenance of said Isaac and his family, and the education of his children. 2dly. At the death of said Isaac, the sum of $50,000 shall be held by his executors in two sums of $40,000 and $10,000, respectively.

So much of the income of the sum of $40,000, as may he allowed for the purpose by the Orphans’ Court of Baltimore city, to he paid to the guardian of the children of said Isaac, living at the time of his death, for their education a,nd maintenance; the surplus to he invested for the benefit of the children. 3dly. At the death of his son Isaac the income of the sum $10,000 to he paid to his widow, so long as she remains sole, and on her death or marriage, the principal to be added to the fund of $40,000, for the benefit of the children. It was further provided, should Isaac survive his children, then on his death and that of his widow, the sums of $40,000 and $10,000 above devised, should become a part of the residuum of his estate, and divided as already provided, except that the residuum should be divided into four parts and not five, the codicil being intended to provide for his son Isaac, as aforesaid, “who under my original will was to receive a fifth part of the residuum.” The codicil concludes with this remarkable clause: “In the bequest here made by me, I have had regard to an estimate, according to my best judgment, of what my estate will probably authorize to be paid, having a due regard to other members of my family. But inasmuch as it may so happen that such a division would not accomplish my wishes in this connection, and' whereas my executors are fully informed of my will in this respect, I hereby authorize them to diminish at their pleasure, the above sum of $50,000 during the lifetime of Isaac the 3d, so as not to reduce it below $25,000; and the above mentioned sum of $40,000, after his death, so as hot to reduce ⁶⁰² it below $20,000, and tbe said sum of $10,000, so as not to reduce it below the sum of $5,000.

It being understood that the sum of $50,000 includes as well the sum of $40,000, as said sum of $10,000.” The third and last codicil, dated the 9th of May, 1861, declares that, having by his will appointed certain duties to be performed by trustees, and being satisfied his will would be simplified by making the same persons executors and trustees, he directs that the executors named in his will, shall be also trustees, and invested with all the powers conferred on the trustees, his purpose being to concentrate-in his executors the powers and duties in his will and codicil divided between the executors and trustees. The counsel of the deceased, who drafted the will and codicils, testified that when he prepared the codicil of the 15th January, 1861, the habits of Isaac Tyson, the son, were referred to by the testator as a reason for making that codicil. The consequences to. ensue from making it were never a subject of discussion. They never talked about the efiect the codicil would have on the children of his son Isaac.

It was further in evidence on the part of the appellants that Isaac Tyson, the 3d, was sent to sea in the year 1859, by the conjoint advice and influence of Jesse and James Tyson and their brother, contrary to the 'wishes of their father, and that the wife and children of Isaac Tyson the 3d, came to Baltimore, and were established at a boardinghouse ; that James and Jesse wanted the wife to go to the country-seat of their father, and occupy the overseer’s house, whilst their father wished her to occupy the farmhouse. Soon after her arrival in Baltimore a misunderstanding arose between James and Jesse and their families, and the wife of Isaac the third, the mother of the appellants, in consequence of certain defamatory rumors uttered ⁶⁰³ against her, and a non-intercourso ensued, but the testator visited her privately, and desired her not to mention his visits to his sons or his wife. The testator continued affectionate in his manner toward the wife of Isaac, and expressed his solicitude for her husband and her children. During the residence of the wife of Isaac Tyson the 3d, at this boarding-house, her husband returned from sea, but did not visit her for sometime, and an attempt was made by one of the executors, and her husband, to take her children from her and carry them away.

During this estrangement between the sons and executors of the testator, and the wife of Isaac Tyson the 3d, the codicil of the 12th April, 1860, was executed, whereby the provisions-of the will giving annually to Isaac Tyson, the 3d, during his life, the whole amount of the profits accruing to him from his portion of the testator’s estate, and also to Fannie Tyson, wife of said Isaac, in the event of his death, twelve hundred dollars, as an annuity to be paid to her during her widowhood, was revoked, and the executors were directed to pay to Isaac Tyson the 3d, so much only of the income of his fifth part of the estate as in their judgment might be proper in view of all the circumstances, and in lieu of $1,200 to be paid to his wife, should she survive him, to pay to her, in their discretion only such part, if any thereof, as they might think proper. An experienced physician, who visited the testator, in the summer of 1861 professionally, as many as thirty times, deposed that the testator’s general health was very feeble; he seemed to be affected with softening of the posterior part of the brain, which in his opinion was of some years standing. It was the strongest case of the kind the witness had ever seen; he had a history of the case from Dr. Norris, and knew that it had been coming on for several years. ⁶⁰⁴ That one of the first symptoms of such a disease as the testator had, is often seen in its effect upon the mind of the patient,'in producing or confirming morbid feelings and impressions as to persons and things. The witness said he saw nothing in his conversations with the testator which would have induced him to suppose his mind was impaired in such a way as to render him incompetent to make a will'.

The effect of his disease on the nerves and muscles need not have affected his mental powers. “Being asked the hypothetical question, that if he had known at the time he saw him, that the testator was a very wealthy man, and that his estate was sufficient to-pay the sum of $50,000, without being seriously impaired, and that the testator’s estimate of its value was such as to make him apprehend that such a sum or a less one could not be paid from it to one of his children without endangering a due provision for the other four, would he have attested his will? The witness answered, no; he would have considered him crazy, and that he had not a reasonable knowledge and opinion as to his estate." The appellants gave in evidence the list of debts returned by the executors 22d October, 1862, showing sperate debts to the amount of $459,801.40 ; doubtful debts, $40,182.65. Among the debts in the schedule of the sperate, due by the children of the testator, were, Jesse Tyson........................ $13,092.84. Jas.

W. Tyson..................... 132,505.77. Jesse Tyson & Co................. 162,146.12. Among the debts reported doubtful was Isaac Tyson......................... $28,340.84. The caveators, assuming they had shown by sufficient evidence that the testator, being of sound mind and memory, and capable of disposing of his estate by last will, ⁶⁰⁵ had made a will in conformity with previous declarations of his intention, and natural love and affection, providing for an improvident son, and his family, then knowing all the infirmities of the prodigal, and anxiously protecting him, and his wife and children, by creating ,a trust in their behalf; that three months thereafter, whilst the son was at sea, without any provocation on his part, the dispositions of the will providing for the son and his wife, during their joint lives, and the widowhood of' the wife in case she survived, were revoked, and their allowance reduced to such sum as the caveatees in their discretion should allow; that the caveatees at this time were not on visiting terms with the mother of the caveators; that by the operation of the second codicil, made evidently with the privity of the caveatees, the testator under an apprehension that his estate, “having regard to the other members of his family,” would not warrant a more liberal provision, reduced the share of Isaac Tyson the 3d, and his children, from one-fifth of the residuum of his estate to $50,000, with an authority to the executors to reduce it to $25,000; the residuum of his estate being divided by the same instrument into four parts instead of five; and the portion of the caveatees thereby increased ; that this codicil was evidently made under a morbid misapprehension of his own circumstances, with the knowledge of the caveateés.

That the estate of the testator was worth nearly a million of dollars; and the caveatees were its principal debtors. That all the changes made in the original will, enured to their benefit and advantage, and the ostensible reasons for them were unreal or delusions. That the testator during this time was extremely aged, palsied and dependent in a great measure, physically as well as mentally, on the caveatees for the management of his affairs, contended that from these premises it necessarily resulted that the codicils of the 12th April, 1860, and the 15th of January, 1861, were the productions of a non ⁶⁰⁶ sane mind, or of a weak and morbid intellect, motilded by influences, and controlled by agents, it was too feeble to resist.' The prayers of the caveators presented the affirmative of these propositions, and those of the caveateesthe negative, with some particular exceptions; the general effect of the whole being as stated in the record that the Court determined by granting the caveatees’ prayers, that there was no sufficient evidence upon which the jury could find for the plaintiffs, the caveators. The effect of these prayers was to withdraw the facts from the consideration of the jury, and submit to the Court the question, whether, conceding all that had been offered in evidence on the part of the caveators to be true, and all inferences reasonably deducible from them, they were sufficient in law to support any