West v. Fidelity-Baltimore National Bank

Horney, J., delivered the opinion of the Court. Addison E. Mullikin (the testator) and Muriel Kemp West (the caveator) were first cousins. At his death in 1956 the testator left an estate of over $7,000,000. The greater part of the estate was bequeathed to charity.

When ²⁶¹ the caveator found he had bequeathed her only about $48,000 she filed a caveat to his will. At the close of the evidence offered by the caveator in the lower court, the trial judge found there was not sufficient evidence to invalidate the will and directed the jury to answer the several issues so as to sustain it. The caveator appealed, contending that the trial court erred in certain of its rulings concerning the admissibility of evidence, and in its refusal to submit the issues to the jury. The testator was born September 26, 1874, in Trappe, Talbot County, Maryland.

He graduated from St. John’s College, taught school while studying law at the University of Maryland Law School, and became prominent in law, business affairs and civic and political matters. The testator, who never married, had no relatives closer than first cousins. Approximately twenty-five years before his death the testator took, as a legal fee, 60,000 shares of the then almost valueless common stock of the Pennsylvania Glass Sand Corporation (company or glass sand company). He continued to be active until his death in the company’s management in association with Abraham J. Fink, a life long friend and business associate, and others.

Through the years the company prospered and the value of the stock steadily increased until the 112,000 shares he owned when he died were appraised at $6,800,000. The contested will executed October 19, 1956, bequeathed pecuniary and specific legacies to one colored and two white Protestant churches in Trappe, to the Protestant Episcopal Bishop of Maryland, to the Roman Catholic Archbishop of Baltimore, and to other charities, as well as pecuniary and specific legacies to over fifty persons—relatives, godchildren, close personal friends, employees and professional and business associates. Most of the legacies consisted of shares of stock in the glass sand company. One-fourth of the rest, residue and remainder—consisting principally of shares in the ■glass sand company—was bequeathed to St. John’s College, one-sixteenth to Goucher College, and one-sixteenth to the First Presbyterian Church of Baltimore, where he had taught a Bible class.

Of the remaining five-eighths of the rest and ²⁶² residue, $100,000 was bequeathed to the Episcopal Church of Our Saviour on Broadway “for the patients at the ‘ Johns Hopkins Hospital,” and the remainder was divided equally between the University of Maryland (School of Medicine), the Johns Hopkins University (School of Medicine) and fourteen hospitals—thirteen in Baltimore and one in Easton —in trust for a period of ten years. The testator had made four prior wills in 1952, in 1953, in 1954 and on February 3, 1956. The general testamentary plan was much the same in each. In 1952 the relatives received one-fourth of the rest and residue and the close friend and business associate (Abraham J. Fink) and one of the testator’s law partners received one-eighth each.

In 1953 the relatives were bequeathed one-third. In 1954 the testator engaged the services of a lawyer-accountant who specialized in estate planning. The ever increasing value of his glass sand company holdings and the impact of death taxes seemingly led the testator to increase his tax exempt testamentary gifts. The 1954 will and both of the 1956 wills bequeathed all of the rest and residue to exempt legatees.

The testator was anxious that his shares of stock in the glass sand company should be retained by the legatees so far as feasible after his death. Accordingly, in all five of his wills he expressed a wish that the individual legatees would, and required that the trustees for the residuary legatees should, keep the stock for a period of ten years after his death, and that the trustees should give proxies to Abraham J. Fink and the company’s president for all meetings of stockholders during that period. In 1947 the testator entered Johns Hopkins Hospital for treatment of a severe infection of the urinary tract and the physician who treated him entered on the hospital record an impression note to the effect that the patient appeared to be “somewhat senile.” Two days before his death in 1956 when the testator was taken to the hospital in a state of complete collapse an interne entered on the record an impression of “senile dementia”, but this was not included in the notes of the attending physician. When he left the hospital in 1947 the testator took up residence in a hotel across the street from his. law office.

He ²⁶³ lived there for the remaining years of his life, except for vacations to Nova Scotia and Atlantic City, attended by his chauffeur-valet and by nurses on twenty-four hour duty. He was a “fresh air fiend” by his own description, and his room was always cooled and aired to a degree deemed to be unreasonable by others. He slept under pongee coverings instead of blankets. As he had done for years, he shuffled in walking.

He was an epicure and a connoisseur of wines, and, to the end, selected his meals and wines and signed the checks for them. He was not precise in his speaking, and sometimes mumbled and slurred his words, spilled cigar ashes and food on his clothing, drooled, and occasionally, towards the last, was incontinent. He found it tiring to read and read only the headlines and market reports. He would converse with those with whom he had a common interest—for example about sports with his valet—but if he was not interested he would either say nothing or reply with a grunt.

Sometimes he would repeat a question. Most of his waking hours were spent in an armchair watching television. Often he solved the problem of choosing which program he would watch by having the visual action of all three of his sets turned on at the same time, with one channeled to each of the three different Baltimore stations. Normally, however, he would have the sound effect tuned in on only one at a time.

It was shown that the trusted private secretary of the testator had long had a power of attorney to sign his checks, that she performed other business and legal duties for him, and that it was she who suggested one of the cousins of the testator, Oliver S. Mullikin, Esq.,—the only other lawyer in the family—as an executor and trustee. It was also shown that the lawyer-accountant drew the will as instructed and read it word by word to the testator, who followed the reading from a copy he held, and after minor typographical corrections had been made by his secretary, he signed it at the desk in his room. It was also shown that Dr. Richard D. Weigle, president of St. John’s College, and Richard F. Cleveland, Esq., a member of the Board of Visitors and Governors, on or about the last of June in 1955, solicited a substantial gift from the ²⁶⁴ testator, and, believing it to be true, told him that such gift would be matched by the Old Dominion Foundation. The testator gave assurances that a gift would be made in the near future, but later it became necessary for Mr. Cleveland to advise the testator that a matching gift would not be made available to the college under a proposed testamentary gift until after death.

Subsequently a small gift was made without solicitation, and sometime later—on May 15, 1956—the testator signed a commitment to make- a bequest to St. John’s in the amount of $500,000, in the hope that it would be matched. The legacy provided in the will of October 19, 1956, as well as in the two immediately prior wills, of one-fourth of the rest and residue of the estate, not only met, but exceeded, the commitment. The Evidence Questions The caveator claims that she, her son, four of the nurses, who attended the testator, and his chauffeur-valet were competent to express an opinion as to the testator’s lack of capacity to execute a valid deed or contract. One who is neither a subscribing witness nor an attending physician is not competent to express an opinion as to the capacity of a testator without first establishing facts upon which such opinion adequately may be founded.

Sellers v. Qualls, 206 Md. 58 , 110 A. 2d 73 (1954); Wood v. Hankey, 133 Md. 389 , 105 A. 430 (1918); The Berry Will Case, 93 Md. 560 , 49 A. 401 (1901). And this is so even though the observation of the testator by the witness may have extended over a long period of time as was true of the relatives and the chauffeur-valet. Plummer v. Livesay, 185 Md. 450 , 44 A. 2d 919 (1945) ; Cronin v. Kimble, 156 Md. 489 , 144 A. 698 (1929). The foundation on which these witnesses based their opinions was, however, no more than a combination of physical infirmities and characteristic oddities of the testator, and was not sufficient to demonstrate competency to express an opinion as to mental capacity or the lack of it.

This same reason justified the refusal of the trial court to permit the nurses to testify as to the entries they had made in the nursing charts concerning the mental condition of the ²⁶⁵ testator as distinguished from the facts concerning his physical condition which they were allowed to state. While the charts would have been admissible as entries made in the regular course of business under Code (1957), Art. 35, §§ 59, 60, it does not follow that everything in them was competent evidence. We think it is clear that the statute did not modify or alter the rule which forbids an expression of opinion by a person who is not competent to express an opinion. Baltimore & Ohio R. R. Co. v. Zapf, 192 Md. 403 , 64 A. 2d 139 (1949); Old v. Cooney Detective Agency, 215 Md. 517 , 138 A. 2d 889 (1958).

See also Globe Indemnity Co. v. Reinhart, 152 Md. 439 , 137 A. 43 (1927), decided before the enactment of the business records statute. The caveator also