Wall v. Heller

BISHOP, Judge. Jack Wall, pro se, appeals the judgment entering directed verdicts in favor of appellee, Mary Heller, Personal Representative of the Estate of Frank J. Wall, on all issues framed by the Orphans’ Court for Howard County and submitted to the Circuit Court for Howard County. On December 7, 1978, Frank J. Wall [“Testator”], a resident of Howard County, executed a will, naming Mary Heller as Personal Representative. The will made several bequests to certain churches.

In addition, $20,000 was bequeathed to both Agnes Schnell, appellee’s mother, and Lore Scott-Smith, appellee’s daughter. The rest and residue of the estate, after the payment of all taxes, debts and funeral expenses, was bequeathed to appellee, individually. The Testator died ten months later, on September 26, 1979, at the age of eighty-five. The will was offered for probate.

Subsequently, appellant filed a Petition and Caveat in the Orphans’ Court for Howard County alleging, inter alia: 1. That he was the nephew of Frank J. Wall and his only living heir. 2. That he was never notified of the Testator’s death or the existence of the will. 3. That the Testator executed the will without sufficient mental capacity. 4.

That the Testator signed the will without reading and/or understanding its contents. ³¹⁸ 5. That the will was procured by fraud. 6. That the will was procured by the exercise of undue influence upon the Testator. On June 21, 1983, after prolonged procedural jockeying, 1 the Orphans’ Court, pursuant to Md. Estates & Trusts Code Ann. § 2-105 (1984), 2 certified the issues of fraud, undue influence and lack of testamentary capacity to the Howard County Circuit Court for trial by jury.

Frank Wall was born and raised in Waterbury, Connecticut. He had a sister Mary and a brother Leo. Leo, who was 17 or 18 years older than Frank, moved away from home at the age of 12. Frank was born approximately 5 or 6 years after Leo left home.

Neither Frank nor Mary ever married. Leo did marry, however, and had two sons, one of whom was Jack Wall. Leo’s branch of the Wall family lived in Bridgeport, Connecticut, about 50 miles from Waterbury. Leo died in 1925 when appellant was an infant.

Mary and her brother Frank, the Testator in this case, lived together in Mary’s Waterbury home until her death in 1962. In 1933, Agnes and Otto Schnell, appellee’s parents, moved into an apartment on the second floor of the Wall residence. Otto and the Testator had been co-workers. The families became very close friends!

The Testator was known to refer to Agnes and appellee as his “cousins.” Appellee, Mary Heller, testified that during those early years of friendship, she had never heard of or seen either ³¹⁹ Leo or Jack Wall. Otto Schnell died in 1953 and Agnes then moved in with appellee. After Mary Wall’s death in 1962, Frank Wall continued to reside in the Waterbury residence until he sold it in 1965. Shortly thereafter, Testator moved to Maryland to live with appellee, who had previously moved there with her family.

Until Testator became ill in 1977, he made frequent visits to Connecticut; however, he lived with appellee from 1965 until his death in 1979. Appellee testified that during the entire time the Testator lived with her, he never mentioned Jack Wall or received telephone calls or correspondence from him. In 1977, the Testator began showing signs of illness. Records produced by appellant showed that doctors at Martinsburg, W. Virginia V.A. Hospital diagnosed the Testator as suffering from numerous physical problems, most notably heart and liver disease.

The Testator was a “heavy drinker.” He was discharged from the hospital in December of 1977, only to return in February of 1978. At this time the diagnosis was similar: arteriosclerotic heart disease with congestive heart failure. There was an additional diagnosis of cerebral sclerotic confusion. The Testator remained in the hospital through April.

Despite contrary indications in the hospital records, appellee denied that she told hospital personnel that she would welcome the Testator home if he would “act less confused____” She also denied saying that the Testator had taken to roaming around outside at night and eating to the point of nausea. During this hospital stay, the Testator granted appellee a power of attorney because, according to appellee, he was too lazy to take care of his own affairs. Upon discharge, in April, doctors placed the Testator on medication, including Elavil, a mood elevator. Appellee testified that the Testator did not complain of dizziness, drowsiness or forgetfulness as a result of the medication.

The Testator was admitted to Howard County General Hospital in June of 1978. Hospital records noted that he was oriented to person and place, knew the month and year, and the president’s name. The intake physician noted the ³²⁰ “impression” that the Testator was suffering from congestive heart failure, arteriosclerotic heart disease and senile dementia, a progressive brain disorder. He was discharged within three days.

Jean C. Steves, a Howard County community health nurse, testified that as part of her work with Home Health Services and geriatric evaluation, she was assigned to the Testator. She began visiting him at appellee’s home in July of 1978. From July through December of 1978, she saw him one to two times a week for 45 minutes to an hour each time. During the visits she would take his blood pressure and review his vital signs and medication routine.

She would also test his mental orientation, alertness and awareness, by questioning him as to time, place and current events, and through general conversations. She described the Testator as a nice, gracious man with a fine sense of humor who was very content at home. He did not appear confused to her. In fact because she concluded he was stable, visits were terminated on December 31,1978.

Mrs. Steves admitted, however, that there was a marked change in his mental alertness and orientation during the last two weeks in December of 1978, when he became somewhat confused. His physical condition also deteriorated and at the end of December, she called his doctor for consultation. Mrs. Donna' Rawlings, a lay minister, testified that she visited Mrs. Schnell periodically from 1977 to 1981. During her visits she became better acquainted with the Testator.

She testified that although his physical condition deteriorated, he remained mentally cogent and intelligent. Robin Palmer Horton, a neighbor of the Heller’s, testified that she knew the Testator and the Heller family through her friendship with appellee’s daughter, Lore Scott-Smith. She described the Testator as a likeable, friendly person. According to Mrs. Horton, in early December, 1978, in response to Testator’s request, she visited him.

At that time he told her that he wished to make a will, and request ³²¹ ed that Mrs. Horton, a legal secretary, ask one of the attorneys for whom she worked to prepare one for him. He told her the persons he wished to be named and the amounts he wished to leave them. Appellee was not present during these discussions. Mrs. Horton took notes and forwarded them to Mr. Rollins, an attorney in her office.

Based on her notes, Mr. Rollins dictated a will on tape and Mrs. Horton transcribed it. The notes were then destroyed and the tape erased. On December 7, 1978, after the will was completed, Mrs. Horton took the completed will to the Testator’s home. Previously she had read it to him over the telephone.

At the house the Testator read the will and told Mrs. Horton that it was what he wanted. He then signed the original and one copy in her presence and in the presence of Mrs. Horton’s mother, Ina Palmer. Mrs. Horton and Ina Palmer were attesting witnesses to both documents. Appellee was not present in the room at the time the will was executed.

In court, Mrs. Horton identified a copy of the will as that which she witnessed on December 7th. She testified that on that day the Testator was “perfectly normal” and as alert as any other day. She also stated that no one was present suggesting what the will should contain. Mary Grimes, the Register of Wills for Howard County, brought to court and identified an original and certified copy of the December 7th will as the Last Will and Testament of Frank J. Wall.

The court admitted the certified copy into evidence. On December 28, 1978, shortly after the Testator executed his will, he entered Howard County General Hospital once more. According to appellee, his health had taken a “sharp downward course.” Hospital records indicated he was suffering primarily from heart failure. He was also diagnosed as having “Depressive Syndrome.” Hospital personnel noted that the Testator was unreasonable, uncooperative, hostile and belligerent during his stay, with poor recollection, disorientation and slow cerebral reaction.

Regarding this behavior, appellee explained that Testator was ³²² an independent man who did not like hospitals and that it confused him to wake up in a hospital after being at home. The Testator was discharged on January 9, 1979, only to be readmitted on February 21, 1979. Hospital records noted that, besides congestive heart failure, Testator was suffering from chronic brain syndrome. Appellee denied knowledge of any of the diagnoses regarding the Testator’s mental condition.

Thereafter, the Testator lived in and out of institutions for the remainder of his life. When able, he conducted his own affairs. Appellant testified that he had a close, loving relationship with the Testator and that he had visited with him at times, but that he kept in touch primarily through his mother. He admitted never writing or calling the Testator.

Appellant stated that when he was a child, the Testator used to stand in his house and tell appellant “one day it will all be yours.” He also stated that the Testator loved appellant’s children, particularly the boys, who would carry on the Wall name. He stated that the Testator sent them gifts in 1973; a fact which appellee denied. Appellant testified that the Testator was a Catholic and that at the time he executed his will (which provided for Testator’s cremation), cremation was unacceptable to the Church. Appellant also testified that he did not hear of his uncle’s death until he saw his tombstone during a visit to the family cemetery plot.

He denied knowledge that the Testator lived in Howard County from 1965 to 1979, and offered into evidence a certified voter list showing the Testator was a registered active voter in Waterbury, Connecticut until 1977. Appellant also introduced into evidence the Testator’s medical records, the power of attorney and related documents, and a letter from appellee to a Mr. Shane, dated March 13, 1979, in which appellee complained about the Testator’s roaming around in the middle of the night in a confused fashion. At the conclusion of the testimony of the register of wills and the attesting witnesses, the court ruled that appellee had established a prima facie case of the validity of the will. ³²³ At the close of all evidence, the court granted a directed verdict on each issue certified from the Orphans’ Court, finding no evidence whereby a jury could conclude that the will was not read by the Testator or signed by him in the presence of two credible witnesses. The court also found no evidence “that [the will] was procured by undue influence; that the document was executed when he was not of sound and disposing mind, ... [or, that the will] was procured by fraud.

There’s [also] no evidence ... that the document dated December 7, 1978, was not the Last Will and Testament [of Frank Wall].” The record did not show whether the judge read appellant’s exhibits. The March 1, 1984 docket entry shows that the court answered all issues adversely to appellant. Appellant noted an appeal from “the order entered March 1, 1981,” and asks: I. Did the trial judge err in entering a directed verdict in favor of appellee?

II

Did the trial judge err in his rulings on discovery? As a preliminary matter, we address, nostra sponte, the question of our jurisdiction, in order to clarify the point at which a circuit court order in an Est. & Trusts § 2-105 plenary proceeding becomes an appealable final judgment. As set forth previously at note 2, supra, § 2-105 authorizes the Orphans’ Court to certify issues of fact to a court of law for trial. In answering the issues certified to it, The circuit court acts, strictly speaking, not as an appellate court nor in the exercise of original jurisdiction.

It acts rather as ... “a tribunal ancillary to the orphans’ court, whose aid is invoked for the single purpose of determining issues of fact submitted to it by the orphans’ court for its guidance in dealing with some matter before it. Ades v. Norins, 204 Md. 267, 273 , 103 A.2d 842 (1954) (quoting Holland v. Enright, 167 Md. 604, 607 , 175 A. 466 (1934)). Once the law court answers the certified issues, § 2-105(c) directs the orphans’ court to enter the appropri ³²⁴ ate judgment or decree. The circuit court has no jurisdiction to enter judgment on a certified case, and any attempt to appeal a purported judgment “is a mere futility.” Syfer v. Dolby, 182 Md. 139, 152 , 32 A.2d 529 (1943).

At first blush it would appear from the language of § 2-105(c) that the law court’s determination of the certified issues would not be a final judgment, since judgment can only be entered by the orphans’ court. This, however, is not the law. Until 1973, appeals were governed by Article 5 of the 1957 Maryland Code. Section 2 of Article 5 provided: § 2.

Appeals from decisions on issues from a orphans’ court Any party may appeal to the Court of Appeals from a decision, determination or ruling of a court of law to which issues have been sent from an orphans’ court to be tried. Md.Ann.Code 1957, art. 5, § 2 (1968 Repl.Vol.) (emphasis added). In 1973 the legislature, as part of the enactment of a new courts and judicial proceedings article, repealed Article 5 on appeals and enacted in its stead Courts & Judicial Proceedings, Title 12, on appeals, certiorari and certification of questions. See, Code 1957, art. 5 (1975 Supp.).

New Section 12-301 provided, in part: § 12-301 Right of appeal from final judgments — Generally- ... a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. (An.Code 1957, art. 5, §§ 1-3, 5, 6, 8, 12, 13, 19; 1973, 1st Sp.Sess., ch. 2, § 1.) 3 (emphasis added). ³²⁵ The revisor’s notes at the end of the section, supra, clearly express the intent that § 12-301 absorb and encompass former Art. 5 § 2 appeals from decisions on issues certified by the orphans’ court. The legislature further expressed its intent not to alter prior substantive law with the enactment of the new Courts & Judicial Proceedings Article, by stating in the preamble that the article was designed to “revise, restate and recodify the laws ... pertaining to courts and proceedings therein,” 1973 Md.Laws, Spec.Sess., ch. 2.

See, Della Ratta v. Dixon, 47 Md.App. 270, 283 , 422 A.2d 409 (1980). Lest there be any remaining confusion, we now expressly hold that a determination by a circuit court of issues certified to it by the orphans’ court, pursuant to Est. & Trust § 2-105, 4 is an appealable final judgment under Cts. & Jud.Proc. § 12-301. In addition, there need be no express order by the circuit court judge transferring the case back to the orphans’ court for entry of judgment. The act of the clerk in entering the determination of the issues on the docket is sufficient to show the final act of the circuit court.

See, Waters v. Waters, 28 Md. 11, 24 (1867). I. Propriety of Directed Verdict In determining whether the evidence in a caveat case was sufficient to go to the jury, “all conflicts in the evidence must be resolved in favor of the caveator ... and the court must assume the truth of the evidence produced on [his] behalf as well as all reasonable inferences that may be drawn from the evidence.” Ingalls v. Trustees, 244 Md. 243, 247 , 223 A.2d 778 (1966) (quoted in Webster v. Larmore, 268 Md. 153, 168 , 299 A.2d 814 (1973) and Friedel v. Blechman, 250 Md. 270, 286 , 242 A.2d 103 (1968)). As more ³²⁶ fully discussed below, the appellant’s evidence was insufficient on all issues and the judgments below should be affirmed. A. Issues 1, 2 and 6 — Validity of the Will.

The trial judge found that appellee established a prima facie case that the Testator’s will was valid and properly executed. Appellant offered no evidence to refute the will’s facial validity and expressly noted below that he had no objections to this ruling. Accordingly, we need not review a claim that the ruling was erroneous. M.R.P. 1085.

B. Testamentary Capacity. A will, although facially valid, cannot stand unless the testator was legally competent. Md.Est. & Trusts, Code Ann. § 4-101 (1974); Davidove v. Duvall, 160 Md. 345, 352 , 153 A. 417 (1931). 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 óf 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 this bounty. Sykes, Contest of Wills in Maryland, § 61, p. 72 (1941); Webster v. Larmore, 268 Md. at 166-7 , 299 A.2d 814 and cases cited therein. Moreover, [t]he law presumes that every man is sane and has capacity to make a valid will, and the burden of proving the contrary rests upon those who allege that he lacked mental capacity. Cronin v. Kimble, 156 Md. 489, 494 , 144 Atl. 698, 700 (1929); Smith v. Shuppner, 125 Md. 409, 417 , 93 Atl. 514, 517 (1915) ... [I]n the absence of proof a prior permanent insanity, it must be shown that the testator was of unsound mind at the time the will was executed in order to overcome the presumption of ³²⁷ sanity. [Acker v. Acker ] 172 Md. 477 , 192 Atl. 327 (1937); Gesell v. Baugher, 100 Md. 677 , 60 Atl. 481 (1905).

Arbogast v. MacMillan, 221 Md. 516, 523 , 158 A.2d 97 (1960) (Emphasis added); Sykes, supra, § 63, pp. 76-78. Therefore, the issue on appeal is whether appellant met his burden of production below. If not, the court correctly granted appellee’s motion for directed verdict. Evaluating the evidence in the light most favorable to appellant, it appears the Testator was suffering from a variety of physical and mental afflictions associated with old age.

In April of 1978, he was diagnosed with having “cerebral sclerotic confusion;” confusion stemming from hardening of the arteries in the brain. Steadman’s Medical