Waple v. Hall

Barnes, J., delivered the opinion of the Court. The will of Rosa Degenhardt (Rosa or testatrix), a widow, executed by the testatrix on March 17, 1964, admitted to probate on January 8, 1965, following the death of the testatrix on November 19, 1964, was challenged in the Orphans’ Court for Prince George’s County by a caveat filed on February 4, 1965, by her sister, Frances Pert Fox (Pert), her niece, Ann F. P'illmann (Ann) and her niece, Flora Belle Hall (Flora Belle). The caveatees, Frederick Waple, Sr. (Fred), a nephew of the testatrix, and Faust C. Villareale, a member of the Bar of Maryland, were the named executors in Rosa’s will. Eight issues were duly framed by the Orphans’ Court for trial before a jury in the Circuit Court for Prince George’s County.

The Circuit Court (Parker, J.) directed a verdict either at the end of the caveators’ case or at the end of the entire case on all of the issues except three, which challenged the will for undue influence, lack of mental capacity and fraud. The trial court overruled the motion of the caveatees for a directed verdict in regard to these issues, submitted them to the jury with instructions, and the jury answered the issues in favor of the caveators, i.e., that the will was executed when Rosa was not mentally capable, the will was procured by the exercise of undue influence practiced upon her and the will was procured by fraud. The caveatees filed a motion for a judgment non obstante veredicto, or in the alternative, for a new trial, which was over ⁶⁴⁶ ruled by the trial court on July 28, 1966. This appeal by the caveatees duly followed.

The caveatees, as appellants, present five questions to us. The first three, which are the most important ones, are as follows: Viewing the evidence in the case in the light most favorable to the caveators — - 1. Was the evidence legally sufficient to be submitted to the jury on the issue of mental capacity? 2. Was the evidence legally sufficient to be submitted to the jury on the issue of undue influence? 3.

Was the evidence legally sufficient to be submitted to the jury on the issue of fraud ? The remaining two issues present issues in regard to certain evidence, i.e., whether the trial court erred in not ruling that Dr. William D. Rosson was not qualified to express an opinion in regard to Rosa’s competency and whether the trial court should have excluded evidence pertaining to certain alleged conduct at a nursing home some seven months after the will was executed. We do not find it necessary to rule upon these last two issues in regard to the evidence in that, assuming, arguendo, that the trial court ruled properly in regard to the challenged evidence, we are of the opinion that there was no evidence in the case, including the challenged evidence, legally - sufficient to submit the issues of mental capacity, undue influence and fraud to the jury. We will reverse the lower court.

The trial was a protracted one involving the testimony of twenty-four witnesses and many documentary exhibits. Although much of the testimony is not contradicted, there are some conflicts in the testimony, which will be resolved in favor of the caveators for the purposes of this appeal. As we said in Ingalls v. Trustees, 244 Md. 243, 247 , 223 A. 2d 778, 779 (1966) : “In considering the facts, all conflicts in the evidence must be resolved in favor of the caveators and the Court must assume the truth of the evidence produced on their behalf as well as all reasonable inferences in favor of the caveators that may be drawn from the evidence. Tufts v. Poore, 219 Md. 1, 8 , 147 ⁶⁴⁷ A.2d 717, 721 (1959).

See also Smith v. Bernfeld, 226 Md. 400, 405 , 174 A.2d 53, 55 (1961).” Rosa was 87 years of age when her husband died on August 14, 1959, while they were living in Pleasantville, New York. She suffered from a disabling type of arthritis which made the use of a walker necessary. She also suffered from arteriosclerosis and from impaired hearing and vision. Her husband had suffered a heart attack in May prior to his death from cancer, and, at Rosa’s request, Pert, one of Rosa’s sisters, aged 79, closed her apartment in New Jersey and moved into Rosa’s household where she continued to live and take care of Rosa for approximately three years after the death of Rosa’s husband.

In addition to her sister Pert, Rosa’s only next of kin at the time of her husband’s death was her sister Lillie Waple (Lillie), age 74, whose health was poor and who lived with her daughter Ann and Ann’s husband Frank Fillmann (Frank) in Prince George’s County, Maryland. During the three year period subsequent to the death of Rosa’s husband, her sister Pert did much of the housework and cooking in addition to nursing Rosa without outside help. A woman came in to get breakfast and dress Rosa in the morning and in the evening to undress Rosa and put her to bed. Lillie went to New York in 1962 to relieve Pert so that Pert could take a short rest.

After this short vacation, following a family conference, Flora Belle and Ann in July, 1962, arranged to move Rosa and Pert from New York to Maryland. Rosa went to live with Ann, with whom Lillie was already living, and Pert moved into the home of Flora Belle. Although the owner of property worth approximately $150,-000, Rosa was very frugal indeed. When she moved into the home of Ann and Frank she obtained an agreement that she would pay $25 a week for her room and board.

Rosa demanded special care and attention and insisted on special foods and wines. She was most attentive to her financial affairs, kept up with the value of her securities by reading the Wall Street Journal, and from time to time made wills disposing of her property. Pert testified that from May, 1959, until July, 1962, Rosa had executed four wills. In the latter part of 1962, after she had ⁶⁴⁸ moved into Ann’s home in July, 1962, Rosa requested that the attorney who represented her when she resided in New York, William F. Osterhoudt, come to see her and prepare a new will.

This was done and Rosa executed the will thus prepared. On April 4, 1963, Mr. Osterhoudt again came to Maryland, with his secretary, to see Rosa at the Fillmann home, prepared a new will for her which she executed with Mr. Osterhoudt’s secretary, Ethel Trippitelli, as a witness with Agnes M. Keener. In this will of April 4, 1963, consisting of twenty-seven separate items, Rosa provided for seventeen cash legacies, including $10,000 to her sister, Lillie, $10,000 to her nephew Fred, $1,000 to her sister Pert, $10,000 to Frank and Ann in equal shares, $5,000 to' her attorney, Mr. Osterhoudt and $5,000 to The Methodist Church of Pleasantville, New York. The residue was bequeathed to Lillie, Frank and Ann in equal shares or all to the survivor or survivors.

Frank was the named executor with Ann as the alternative named executrix if Frank were unable to act as executor. There was an in terrorem clause revoking legacies to any legatees attacking the will directly or indirectly and a provision that if the estate was insufficient to pay all legatees, the legacies to relatives should first be paid, then those to individuals and finally those to corporations or institutions. After Rosa left the Fillmann home and lived at the home of the Waples, she executed three wills; one on June 14, 1963, one on November 7, 1963, and the last will, admitted to probate and challenged in this case, on March 14, 1964. A proposed unexecuted will was prepared in October, 1964.

We shall consider the provisions of these wills later in this opinion. When Mr. Osterhoudt visited the Fillmann home in April, 1963, in connection with the preparation of Rosa’s will executed at that time, he suggested that the $25 a week payment for room and board by Rosa was too little and that Ann should increase the amount. Ann approached Rosa and requested an increase to $50 a week. Rosa bargained with Ann and finally stated, according to Ann’s testimony: “Well, would you take forty?”, and Ann replied: “Yes.” Thereafter, for about a month and one-half, Rosa paid Ann $40 a week for her room and board.

Rosa, however, was not pleased with this increase. Ann testified that after the raise in the amount of room and board she ⁶⁴⁹ told Reba Waple (Reba), wife of Ered, that Rosa was not pleased with the increase and that Reba replied: “Well, I would take her for $25 a week. I would do anything for money.” Reba stoutly denies this, but, as we have indicated, we resolve this conflict in the testimony in favor of the caveators. Ann testified that on Saturday, June 8, 1963, Rosa requested her to telephone Reba and request her to come over to see Rosa.

Ann did this and Reba said that she wouldn’t be able to come over in the afternoon, but would see Aunt Rosa that evening. Ann’s son was playing baseball that evening and Ann and her husband, Frank, went to see their son play. When Ann and Frank returned about 8:00 p.m. Ann testified that Reba came running out of the house and as she passed by the automobile of the Fillmann’s, stated: “They are having a battle royal in Ihere.

You better get in there. Aunt Rosa is coming to live with me and I will be over tomorrow to pack her things.” Ann started for the house, but turned around and told Reba that “it wouldn’t be necessary for her to come over to pack Aunt Rosa’s things, if she was leaving I would pack them.” Ann then rushed into the house and found her mother screaming and crying, almost in a state of shock. Aunt Rosa said that she was going to live with Fred and Reba and that “she wasn’t wanted in my home any longer, and * * * she claimed my mother had been unkind to her.” Ann also stated that Rosa said at that time that “Reba had told her that she wasn’t wanted in my house.” Plere again, Reba denies that she made any such statement, but the conflict is resolved in favor of the caveators. Frank testified that his mother-in-law, Lillie, had expected to play bingo in Laurel that Saturday evening and, although he did not think she was in any condition to play, he nevertheless drove her to Laurel, but after stopping for a cup of coffee, Lillie indicated that she was not up to playing and they returned home.

Ann had put Rosa to bed before they returned. On the following morning, June 9, Frank walked by Rosa’s room in the morning and she called him in. She wanted to know if Frank was coming to visit her after she moved to Fred’s. Frank told her “No, I didn’t think so, I wasn’t wanted at Fred’s.” The Fillmanns had plans to go to the beach in the afternoon and Frank called Fred around 9:30 to 10:00 a.m. and said: “What time ⁶⁵⁰ do you plan to get here to pick up Aunt Rosa ?” to which Fred replied: “I haven’t made my mind up about that yet.” Frank then said: “What do you mean, you haven’t made up your mind about it, when your wife stood in the driveway yesterday and told my wife to get her ready, she would come to pack her things, she was going to live with you? “He says, ‘That is what Reba said.

I have something to say about this.’ “I said, ‘Well, we have plans to go to the beach this afternoon and I want to know what your plans are.’ “He said, ‘Well, right now I am getting ready to go to church.’ He said,. T will let you know what I am going to do.’ And hung up the phone very abruptly.” Fred, who was called by the caveators as their witness, testified that before June 8th he had never discussed the possibility of Rosa moving in with him. When he got home from work Reba told him that Ann had telephoned that Aunt Rosa wanted her to ride out to see her about something. After they reached the Fillmann home Fred spoke to his mother and then went over to speak to Rosa who asked him: “Freddie, will it be all right with you if I come and live with you.” He replied: “If that is what you want you are welcome.” His mother Lillie became very upset when Rosa told her she was going to live with Fred and Reba and “just talked for ten or fifteen minutes, and no one said a word then.

Aunt Rosa did not answer back, never said a word.” Lillie began to scold Fred and finally he went outside stating that he was not going to stay there and “listen to this.” He further testified that he “hadn’t made up his mind what to do the next day” and had not decided “whether she could come to live with us or not.” The following morning Frank telephoned Fred and asked him: “Are you coming over to get your Aunt?” Fred hesitated and then said: “Well, does she still want to come ?”, thinking that perhaps his aunt had changed her mind about leaving. Frank then stated: “Yes, she still wants to come. And if you don’t come over here and get her ⁶⁵¹ I am going to call her lawyer, Bill, and have her shipped back to New York.” Fred then replied, “Well, then, Frank I am getting ready to go to church now. As soon as I get out of church I will drive right on out and pick up my aunt.” Fred did this and Rosa went to live at Fred’s home.

When she arrived she was very happy. She later told Fred that she “was very unhappy” at Ann’s house. Fred never discussed Rosa’s financial affairs with her and did not know what arrangements, if any, had been made in regard to her room and board. Reba testified that Rosa offered her $40 a week when she first came to her home, but Reba thought this was too much.

Rosa then offered $35, then $30 a week, which Reba still thought was too much, and finally offered $25 a week, which Rosa said “is what the Fillmann’s agreed to take me for,” and Reba then agreed to accept $25 a week. Rosa, after moving to the home of Fred and Reba was very insistent upon changing a savings account she had in order to be sure that Lillie would get nothing if Rosa died and in making a new will. Rosa changed the savings account, eliminating Lillie as a joint owner and substituting Reba in Lillie’s place. She asked Reba to seek a recommendation from the Citizens Bank (where she had a savings account) for an attorney to advise her in connection with a new will.

This was done and the bank recommended three attorneys. Two of the recommended counsel could not come to the house, but, the third, Faust C. Villareale, was free to come and did this. Mr. Villareale, one of the co-executors and a caveatee, was called as a witness for the caveators, and testified in regard to the executing of three wills prepared by him for Rosa. He was later called as a witness for the caveatees.

He testified, without contradiction, that he had never known Fred or Reba prior to Reba’s telephone conversation requesting him to come to see Rosa. When he interviewed Rosa she had before her the will of April 4, 1963, and told him “exactly how the will was to be changed.” He made notes of her instructions and these notes were offered in evidence. The will of June 14, 1963, consisted of twenty-eight items. The principal differences between the will of April 4, 1963 and of June 14, 1963, were that in the latter will the legacy to Lillie was reduced from $10,000 to $1.00, Reba was included with a legacy ⁶⁵² for $5,000, Pert’s legacy was increased from $1,000 to $5,000, the legacy to Frank and Ann was reduced from $10,000 to $1.00, the residue was bequeathed to Fred instead of to Lillie, Frank and Ann, and Fred was named as executor, with Reba as alternate, instead of Frank, with Ann as alternate.

The legacies to Fred for $10,000, to her nephew, Andrew B. Rogerson, for $10,000, to Frankie Fillmann (son of Frank and Ann) for $1,000 and to various other legatees remained the same, including the bequest of $5,000 to Mr. Osterhoudt, of $5,000 to The Methodist Church of Pleasantville, New York, and of $500 to the Trustees of the Masonic Hall and Asylum Fund who operated a Masonic Home at Utica, New York. There were identical provisions in regard to lapse in the event of failure to survive, the payment of succession and other death taxes, the in terrorem clause and the priority of payment to classes of legatees. Rosa executed the will of June 14, 1963, in the presence of Mr. Villareale, who expressed the opinion that she was quite normal and capable of executing a valid deed or contract. He had no reservations in regard to her mental capacity.

Mr. Villareale sent the original will to Mr. Osterhoudt in Pleasantville at Rosa’s request and forwarded a copy of the will to Rosa. Rosa thereafter consulted with counsel in regard to recovering from the Fillmann’s certain personal property which she claimed belonged to her. She had a letter prepared on July 29, 1963, to Frank, sending him a list of the personal property, consisting of some 23 separate items, and stating that her lawyer had advised her to send the list “so that you will allow the movers tO' bring them to me.” She stated that she had made arrangements with the movers and would pay them for moving the property. She signed this letter and sent it to Frank.

Shortly thereafter, Rosa received a typewritten letter, containing seventeen separate paragraphs, from Ann, in which Rosa was addressed as “Dear Mrs. Degenhardt.” The substance of the letter was that the claimed personal property belonged to Ann, in that Rosa had given the articles to her, specific instances were given indicating a gift, there was a review of all that Frank had done for her and a statement of how hurt Frank was at the “circumstances which prompted you to leave his home,” and then the following: ⁶⁵³ “If, after all of the foregoing, you feel you are still desperately in need of the remaining items in my house which you gave to me, please let me have your check in the amount of $240 to cover storage charges during the twelve-month period from July 1962 through June 1963, based on the average storage charges of $20 per month for the amount of furniture involved here. Also, let me have your check for $60 to cover the cost of restoring and painting these three lamps or ornaments and other furniture and picture frames mentioned pre' viously. “I would also like to present you with a bill for my husband’s services for one year which I estimate to be between $1,500 and $2,000. However, he will not permit me to render a bill in this instance.” Sometime shortly prior to November 7, 1963, Rosa again consulted Mr. Villareale in regard to a new will. She had before her a copy of the will of June 14, 1963, and instructed him as to what changes she wished made.

During all of his conferences with Rosa in regard to wills she indicated that she was “quite angry * * * with the people with whom she had lived previously to coming to the Waple house.” He further stated: “From what I understood, the basis of these changes was this disturbance that she had with them. She indicated they had kept some of her furniture, personal belongings of some kind, and now during the course of this trial this letter from Mrs. Ann Fillmann brings to mind the fact that she showed me this letter and wanted me to write and ask or represent her, and I told her to forget it, just grin and bear it, and I never did write an answer to that letter.” The will of November 7, 1963, was quite similar to the will of June 14, 1963, except that the legacy to Lillie of $1,000 was reduced to $1.00, the legacy to Pert was increased from $5,000 to $8,000, the legacy to Frankie Fillmann was reduced from $1,000 to $1.00, and the $5,000 legacy to Mr. Osterhoudt was eliminated. ⁶⁵⁴ Rosa on March 16, 1964, again consulted Mr. Villareale in regard to a new will. He made notes of her instructions, and prepared the will of March 17, 1964, contested in this case. This will is similar to the November 7, 1963, will except that the legacy for $1,000 previously bequeathed to the Woodlawn Cemetery was removed, the bequest to Pert of $8,000 was reduced 'to $5,000, the bequest to her nephew Andrew B. Rogerson was reduced from $10,000 to $8,000, the two bequests for the Masonic Lodge and the Trustees for the Masonic Home of $500 •each were cancelled and the bequest to The Methodist Church -of Pleasantville, New York was reduced from $5,000 to $2,000.

Mr. Villareale prepared the new will as instructed and pre- ■ sented it to Rosa on March 17. She read the will with the aid of her magnifying glass. Rosa had torn the November 7, 1963, will and put it in a trash container. Mr. Villareale told her she should not have done this, gathered up the torn parts and placed "them in an envelope.

This envelope and contents were intro•duced into evidence as one of the exhibits in the case. Mr. Villareale testified that Rosa was competent when she executed the will of March 17, 1964, and that he did not observe any one exercising any undue influence over her. Indeed he testified that in the execution of all three wills he had prepared he had not observed that any one in the Waple household had exercised ;any type of influence or persuasion over Rosa. He also stated that when he had his conferences with Rosa in regard to the wills they were alone, Reba perhaps having come in to give Rosa “a glass of water or something like that.” There were three subscribing witnesses to the will of March 17, 1964.

They were Marjorie A. Bunyea, Charlotte A. Harris -and Grace Arold. All three testified that they considered Rosa to be competent and capable of executing a valid deed or contract. We shall consider their testimony more fully later in this •opinion. Rosa read an advertisement in a local paper advertising the Magnolia Nursing Home and decided that it would be an attractive place where she could go and give Reba some rest.

She went to Magnolia on June 4, 1964. She was much disappointed, -complained of lack of attention and the poor meals, and, after .her sweater had been inadvertently removed by one of the nurses ⁶⁵⁵ and washed (Rosa for a while, at least, thought it had been stolen), insisted on returning to the Waple home. This she did on Saturday, June 6, 1964, Reba and Mrs. Bunyea, who was acting as a part-time practical nurse, finding her dressed and ready to return when they went to see her. After a fall, Rosa went to the Prince George’s General Hospital from the last part of August, 1964, to September 7, 1964.

Dr. Riccardo U. Franchi, who had been her attending physician since the late spring of 1964, having succeeded Dr. Hei K. Lee who had gone to Plong Kong, testified that he had recommended that she go into the hospital because of her physical condition. Rosa did not want to go, was not easily persuaded to do what she did not want to do, but finally did agree to enter the hospital. She was unhappy there because she believed she was not receiving proper attention and did not like the food, and finally Dr. Franchi consented to her return home sooner than he had planned. After her return from the Prince George’s General Hospital she wrote in her own handwriting on the back of an envelope dated September 12, 1964, the following: “In case of my death sell as few stocks as possible.

I advise selling Allis-Chalmers, Niagara Mohawk and if the third has to be sold, Republic Steel. I want Fred and Reba to take the stocks. Names to be changed and their names in place of mine. “I have twenty thousand dollars in Citizens Bank.” On October 26, 1964, Rosa entered the Hyattsville Nursing Home. She was quite ill at the time.

She conferred with her attorney, Mr. Villareale, and indicated that she wanted him to take care of her affairs as she was unable to do this and wanted him to prepare a new will leaving everything to The Methodist Church in Pleasantville, New York. She indicated that she was angry with the Waples. In the draft of the proposed new will, however, the $10,000 legacy to Fred was continued and the $5,000 legacy to Reba was increased to $10,000. A new legacy of $5,000 was included for Horace Hoghal of Pleasantville, New York, the legacy to The Methodist Church was increased from $2,000 to $5,000, the residue was bequeathed to The Meth ⁶⁵⁶ odist Church and Mr. Villareale was named as sole executor.

Mr. Villareale also prepared a petition for the appointment of a conservator which Rosa signed with difficulty, but the proposed will was never executed as Mr. Villareale did not think she was competent at that time. Later Rosa wished to have her affairs back in her own hands, discharged Mr. Villareale as her attorney and requested back her papers. The papers were returned to her, an order for the appointment of a conservator never having been signed by the Circuit Court. The proposed will was never executed.

Rosa returned home with the Waples on November 5, 1964. She died at that home on November 19, 1964. Additional evidence will be considered when the three principal questions are later discussed. (1) Mental Capacity In considering Rosa’s mental capacity to execute the will of March 17, 1964, we resolve all conflicts in the evidence in favor of the caveators, as well as all reasonable inferences that may be drawn from the evidence, Ingalls v. Trustees, supra ( 244 Md. at 247 , 223 A. 2d at 779 ), but as we said in Sachs v. Little, 245 Md. 343, 363 , 226 A. 2d 283, 294 (1967) : “The whole evidence is to be considered, and not merely that offered by the caveators.

If there is a conflict in the testimony it is resolved in favor of the caveators, and they are entitled to all reasonable inferences in their favor from all of the testimony. See Scheller v. Schindel, 153 Md. 547, 551 , 138 Atl. 415, 416 (1927). Uncontradicted evidence and unimpeached documentary evidence, however, cannot be ignored because it is unfavorable to the contention of the caveators.” (Emphasis in original). The evidence of the caveators taken in a light most favorable to them indicates that Rosa was an aged woman, 92 years of age when she executed the will of March 17, 1964, obese, deaf, with impaired sight, demanding, strong-willed and suffering from arteriosclerosis.

At times she was feeble and forgetful. It is clear from our prior decisions that these disabilities do not ⁶⁵⁷ justify a finding of mental incapacity. Sachs v. Little, supra and Ingalls v. Trustees, supra. The caveators rely upon the testimony of Dr. Rosson, however, to justify submission of the issue of mental capacity to the jury.

Dr. Rosson had