Webster v. Larmore

Singley, J., delivered the opinion of the Court. This is an appeal by a personal representative from an adverse decision, determination, or ruling of a court of law in a caveat case to which issues had been sent from an orphans’ court to be tried, Maryland Code (1957, 1968 Repl. Vol.) Art. 5, § 2; Syfer v. Dolby, 182 Md. 139, 152 , 32 A. 2d 529 (1943). Consolidated with it is a second appeal by the successful caveators from orders of the orphans’ court authorizing the personal representative to pay, from the assets of the decedent’s estate, the fees and expenses of counsel incurred in the defense of the caveat action and to be incurred in this appeal.

Julia Eva Pollitt (Julia) died on 4 November 1970 at Eastern Shore State Hospital, a State mental hospital, at Cambridge, Maryland. At the time of her death, Julia was 72 years of age. Although she had been married twice, once to John May of Princess Anne, whom she had divorced in about 1954, and then to Austin G. Brumley, whom she married in February, 1965, Julia had no children. She had been married to May for some two years.

Brumley had lived with her less than a month, and she divorced him in June, 1966. In November, 1964, prior to her marriage to Brumley, Julia had gone with him to the Salisbury office of Walter D. Webster, an attorney. There she gave Mr. Webster instructions regarding the preparation of a will, which was signed on 28 December 1964 at Julia’s home in Salisbury in the presence of Mr. Webster, Mr. Webster’s secretary and Brumley, who acted as witnesses. The original will was in Mr. Webster’s custody at the time of Julia’s death. ¹⁵⁶ The value of Julia’s gross estate was about $29,000.00.

Under her will, Julia devised her Salisbury residence to her nephew, James M. Larmore; bequeathed $1,000.00 to her sister, Bertha Larmore; left bequests totalling $1,500.00 to friends; gave $500.00 to each of two churches, and bequeathed the residue of her estate to Brumley. In spite of the fact that she and Brumley were separated and later divorced and that Brumley had remarried, Julia never modified or expressly revoked her will. Some time before Julia’s will was offered for probate, the appellees, Bertha Larmore and Elmer M. Pollitt, Julia’s sister and brother and only surviving next of kin, filed in the Orphans’ Court for Wicomico County a petition and caveat to Julia’s will on grounds of lack of mental capacity and undue influence. The orphans’ court regarded this as a request for judicial probate, Code (1957, 1969 Repl.

Vol.) Art. 93, § 5-207 (b). On 20 April 1971 it admitted the will to probate and appointed Mr. Webster, the executor named in the will, as personal representative of Julia’s estate. Issues raising the questions of testamentary capacity and of undue influence were framed and transmitted to the Circuit Court for Wicomico County for trial before a jury. After a three-day trial, the case went to the jury on only the first issue: “Was the alleged testatrix, Julia Eva Pollitt, of sound and disposing mind, capable of executing a valid deed or contract at the time the alleged Will dated December 28, 1964, was executed?” The jury answered this question in the negative.

Mr. Webster, as caveatee, appealed from the verdict entered in favor of the caveators. 1 Mrs. Larmore and her ¹⁵⁷ brother, as caveators, have appealed from an order of the orphans’ court authorizing Mr. Webster to pay from funds of the estate an amount of $1,270.50 to his counsel, being the aggregate of fees and expenses incurred in the defense of the caveat action, as well as from an order authorizing payment from the estate of costs and expenses incurred in connection with this appeal. 2 By agreement of counsel, these two appeals were consolidated. Mr. Webster argues first, that the trial court erred in admitting testimony and evidence respecting Julia’s mental condition and hospitalization at times remote from the date of execution of the will and second, that since this evidence should have been excluded, it was error to deny his motion for a directed verdict in his favor, made at the end of the caveators’ case, and renewed at the end of the entire case, and alternatively, to deny his motion for judgment n.o.v. Mrs. Larmore and her brother contend that the expense of an unsuccessful defense of the caveat action and of an appeal from an adverse verdict should not be borne by the estate. The Admissibility of the Evidence Mr. Webster maintains that the rule of our cases is that while evidence tending to prove competency may relate to periods both before and after the date when a will is executed, proof of incompetency must relate to the critical date when the will was made. We restated the rule of the cases, speaking through Judge Horney, in Arbogast, Executor v. MacMillan, 221 Md. 516, 525 , 158 A. 2d 97 (1960) : “It is true, of course, that evidence tending to prove competency in general may relate to the entire period of acquaintance of a witness with a testator both before and after the date ¹⁵⁸ of the making of a will.

Jones v. Collins, 94 Md. 403, 411 , 51 A. 398, 400 (1902); Harris v. Hipsley, 122 Md. 418, 435 , 89 A. 852, 857 (1914). But evidence produced to show lack of testamentary capacity must relate to the mental condition of the testator at the time the will was executed.” This is the logical consequence of the presumption of testamentary capacity, stated in the same opinion, 221 Md. at 523 : “The 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 A. 698, 700 (1929); Smith v. Shuppner, 125 Md. 409, 417 , 93 A. 514, 517 (1915). Moreover, in the absence of proof of 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 sanity.

Acker v. Acker, 172 Md. 477 , 192 A. 327 (1937); Gesell v. Baugher, 100 Md. 677 , 60 A. 481 (1905).” See also Waple v. Hall, 248 Md. 642, 657-58 , 238 A. 2d 544 (1968); Ingalls v. Trustees, 244 Md. 243, 260 , 223 A. 2d 778 (1966). At the commencement of the trial of the case, there was an extended colloquy between the court and counsel out of the presence of the jury as regards the admissibility of evidence bearing on the alleged incompetence of a testator which related to events remote in time from the date when the will was executed. The trial judge finally concluded that the proper manner of dealing with the question was to rule on the admissibility of evidence as it was adduced, which he did, admitting it over the objection of the personal representative. ¹⁵⁹ It would seem that the lower court found particularly persuasive Kelley v. Stanton, 141 Md. 380 , 118 A. 863 (1922), a caveat case which held that it was not reversible error to admit in evidence the inquisition of a jury in an incompetency proceeding conducted 28 months after the testator had executed his will, which had resulted in an adjudication that he was of unsound mind. After considering the cases which had preceded and have succeeded Kelley , we conclude that the holding there must be confined to the peculiar posture of that case, which reversed, on other grounds, a verdict in favor of the caveators.

Of particular interest is the court’s conclusory comment, which appears at 141 Md. 397 : “The inquisition is also without sufficient probative force to show testamentary incapacity at the time the will was made, in the absence of any evidence tending to show that the mental condition of the testator existing at the date of its return extended back to the date of the execution of the will . . . .” After the proceedings relating to the probate of the will had been introduced, the caveators called Dr. Earl M. Beardsley, a general practitioner, who testified that he had seen Julia as a patient “every two or three months” commencing in the fall of 1962. Over objection, he was permitted to testify that on 13 April 1967, 28 months after she signed the will, Julia had been admitted to Peninsula General Hospital at a time when she was “. . . confused . . . disoriented . . . upset and agitated . . . .” and that shortly thereafter, Julia was committed on the certificate of two physicians to Eastern Shore State Hospital, suffering from what had been diagnosed as chronic brain syndrome or cerebral arteriosclerosis. In response to a question as to the duration of the disease, Dr. Beardsley said: “I think it is only with difficulty that you—that you can—I don’t think a person could actually ¹⁶⁰ state the onset of such a condition. However, I felt in Miss Pollitt’s case that this had been developing since I had known her in 1962.” On cross-examination, Dr. Beardsley said that he had seen Julia on 29 January 1964, on 17 July 1964, on 6 March 1965 and on 23 March 1965.

His testimony was that on 17 July, she complained of being “tired and somewhat run-down” and that he had prescribed a sedative and an antacid, and that on 6 March, her complaint was a cold and cough, and he gave her cough syrup. Dr. Beardsley admitted that his office notes relating to those visits disclosed nothing with respect to Julia’s mental condition. In response to a question, he said that he did not feel “qualified” to express an opinion as to Julia’s mental capacity on 28 December 1964. The caveators’ next witness, William Johnson, one of the legatees, testified that Julia had lived with him, taking care of his child, from September, 1947 until her marriage to Mr. May in 1952; that he saw her or talked to her “two or three times a week” after she moved to Salisbury in 1954.

He was vague as to dates, but described Julia’s frequent spells of apprehension, her loss of her bank book, and an occasion when she had him arrested for trespassing. Mrs. Winnie Evans, who lived across the street from Julia, and had known Julia from the early or middle 1950’s, saw her two or three times a week, when she sought help, thought “somebody was trying to burglarize her home—they were in her home going to do her bodily harm, and they were trying to get her money.” Mrs. Evans continued: “I would calm her down in my home which, as I said, she was highly agitated, incoherent, and it would take me sometimes as much as two hours getting her calmed down. “After I got her calmed down, then I would ¹⁶¹ go home with her and give her assurance that there was no one in the home. ❖ * * “If it was an essentially bad spell that I couldn’t control her, I would call her brother, Elmer.” In response to a question, Mrs. Evans admitted that this happened in 1961, but recalled that just before Christmas in 1964, Julia “had one of the worst spells I have ever seen her have.” She testified that in early 1965, Julia seemed not to have remembered that she had married Brumley. The testimony of another neighbor, Mrs. Catherine Rickards, was essentially similar to Mrs. Evans’ except that she was even less certain as to dates, particularly since she and her husband had been in Arizona from 1960 to December, 1963, and had no recollection of events in December, 1964. Lieutenant Walter Evans, of the Salisbury police force, the husband of Mrs. Winnie Evans, testified that Julia frequently called the Salisbury police department, but could not pinpoint the times, or relate any calls to December, 1964 or even to the year 1964.

George Rickards, the husband of Catherine Rickards, gave the most succinct account of Julia’s conduct: “On numerous occasions Miss Pollitt had come to our home asking for help, or that she was upset and would like to visit in our house for a while; that someone had taken her pocketbook; or that she had lost her keys and had locked herself out of her home; that she misplaced some of her kitchenware—knives, forks and spoons, kitchen utensils, pots and pans; but more or less it centered around her pocketbook and her keys and her money, and her locking herself out of her home. ¹⁶² “When this would happen I would take my tools and go over to a back window, open it up, go in and open up her door, and get her back in her home. “We got to the point where we even suggested that she pin an extra key to her clothing—or my wife suggested a chain or a string with a key around the neck. “The frequency was such that it got to be a problem, a real problem, of working to keep up with the things. “I would go over with her when she lost her pocketbook, or my wife and I would go over, and sometimes several neighbors would be there at the same time. “We would find her pocketbook or her keys— generally it was her pocketbook—and it would be in the refrigerator, in the washing machine, in the stove, behind the stool in the bathroom, or under the pillow, or some other place she had put it and had misplaced it.” He could not, however, relate this account to a date more precise than the years 1964-1965. Elmer M. Pollitt, Julia’s brother, testified that he visited his sister “two or three times a month” and that in 1964, “. . . she would be in terrible ways sometimes when I stopped there.” “She was always nervous and upset, and people had been in her house—couldn’t keep nothing there—stolen everything—didn’t used to be nothing like it was years back. And she was just a nervous wreck.” Dr. C. W. Powell, a psychiatrist called as a witness for the caveators, testified that he had been associated with Eastern Shore State Hospital from 1963 until 1971 as Clinical Director, and in that capacity had first examined Julia for between 45 minutes and one hour on 5 June of 1967, in connection with a competency proceed ¹⁶³ ing which was about to be instituted. Over objection, he was allowed to testify that Julia was then incompetent “due to a chronic brain syndrome associated with cerebral arteriosclerosis manifested by confusion, disorientation and delusions that people are stealing her money.” Again over objection, Dr. Powell was permitted to testify that in his opinion, Julia was incompetent in December of 1964.

He said that Julia was released on 13 August 1967, was readmitted to the hospital on 17 April 1969, and died there on 4 November 1970. At the conclusion of Dr. Powell’s testimony, again over timely objection, there was admitted in evidence Julia’s record at Eastern Shore State Hospital, which also contained a transcript of the 1967 hospitalization at Peninsula General Hospital. Also introduced over objection were the records of the incompetency proceeding instituted against Julia by her brother in June of 1967, which resulted in her adjudication, and the appointment of her brother as her committee. James Larmore, Julia’s nephew, testified that his aunt had had “spells” of loss of memory since the 1940’s, which “gradually got worse.” At the conclusion of the caveators’ case, Mr. Webster moved for a directed verdict on the issues of mental incapacity and undue influence.

The court denied the motion as regards the former, but reserved ruling on the latter until the end of the caveatee’s case, when it was granted. Mr. Webster, called as a witness in his own behalf, said that he first met Julia in the summer of 1964, and noticed nothing unusual or strange about her, nor any tendency toward forgetfulness. He told of receiving Julia’s instructions, of drafting the will, of taking the will to Julia’s house, where it was executed. He concluded that Julia, a “tidy . . . old maid” in his opinion, was “rather normal.” Miss Frances Landing, assistant secretary of the Larmar Corporation, testified that Julia had purchased ¹⁶⁴ her house from Larmar in 1954; that on 7 December 1964, Julia had released a 6%