Willis v. Willis

Mitchell, J., delivered the opinion of the Court. This is an appeal from rulings of the Orphans’ Court of Talbot County, on a caveat to the last will and testament of William Thomas Willis, late of said county. The testator was nearly eighty-seven years of age at the time of his death, which occurred on November 23rd, 1933. His wife predeceased him, and he was survived by his four children, namely, W. Alonza Willis, Grace White, and Ida Warner, who are the caveators, and Thomas Willis, the latter son, together with Blanche Willis, his wife, and Charles J. Butler, the executor under the will, being the caveatees.

The deceased was engaged as a farmer for the greater part of his life, having retired from active work about sixteen years prior to his death. In 1911 he gave up a farm which he rented, his son, Thomas, taking over the lease, and the father placing his farm equipment with Thomas, and continuing to live with him, under a working agreement between them. This arrangement lasted for a year, at which time the father rented a separate farm, to which he moved a part of his equipment and stock. He remained on the latter farm for a year, later removing to a third property.

Subsequently he ceased agricultural pursuits, and was employed at a mill and in other lines of work. In the fall of 1916 he returned to the home of his son Thomas, where he lived continuously until 1930. In September, 1927, the first wife of Thomas died, and, from the date of her death until 1930, the family consisted of Thomas, his two sons, and the old man. On January 1st, 1930, Thomas was again married, and his second wife took up her abode in the home.

She sought to rearrange the affairs of the household, in a manner which did not meet with the approval of her father-in-law, and some disagreement occurred between them. This caused Thomas to interview his brother, ¹⁴⁸ Alonza, whereby an agreement was reached under which the father, on March 19th, 1930, moved to the home of Alonza, remaining there until June 19th, 1931, when he returned to the home of Thomas. On February 28th, 1931, during the interval in which he was residing with Alonza, the father visited Easton, the county seat of Talbot County, and, in company with Henry Hollyday, filed with James A. Spence, the then register of wills of the county, for safe-keeping, a paper purporting to be his last will and testament. There is nothing in the record to show the contents of the paper so filed, and the ex-register testifies that it was in a sealed envelope when lodged with him.

We gather from the record that Mr. Hollyday was the draftsman of the document, and it is shown that he died before the trial below took place. On June 30th, 1931, a date subsequent to the date of the return of the testator to his former home, according to the testimony of Mr. Spence, Thomas Willis, the son, called at his office, and stated to the register that his father desired to withdraw his will. Upon being advised that the testator should either apply in person, or send a written order for the withdrawal of the paper, Thomas told the register that his father was awaiting his return in a parked car near the court house. Thereupon the register, taking the paper with him, went to where the testator was waiting, and in this connection testified as follows: “Q. What conversation did you have with Mr. Willis at that time?

A. When I went out, I said, Tom said you wanted your will. He said, Oh, I don’t know whether I want it or not. He said yes, I do, that’s all right, hand it herb. He laughed like he was joking.

It was a habit of his. That’s practically all the conversation I recall now.” He further testified that, between the dates of filing and withdrawing the paper from his office, the testator had not made inquiry about the will, and that it was in the sealed envelope, as originally lodged in his office, when delivered to Mr. Willis. ¹⁴⁹ On the date of withdrawing the paper, the testator, in company with his son, Thomas, and the latter’s wife, visited the office of Attorney Charles J. Butler, where, as related by Mr. Butler, the senior Willis told the attorney that he desired to make a will. He then stated that he had a will but wished to change it. When asked about the former will, he handed Mr. Butler the sealed envelope, stating that the will was in it, but the contents were not examined by the attorney, who then proceeded to ask the testator for directions in the preparation of the second will.

Mr. Butler testified that he did not recall whether the son and his wife remained in his office while he was taking down data for the preparation of the will, but he did testify that the testator gave him the names of his children and the proportion of his estate he wanted each to receive. The will was then prepared and read to the testator, who stated that it “was exactly the way he wanted it.” According to the attorney, the senior Willis then said: “It looks like Tom is getting the most,” and I said, “Yes, it certainly does.” He said, “Well, that will depend upon how long I live. If I live a long time then Tom will not get any more than the rest of them. I am depending upon him and his wife to tend me and look out for me, that’s the reason I am giving it to them both.” Mr. Willis then told Mr. Butler where his money was deposited and that Ms son Alonza had possession of his bank book.

The attorney then called in John C. North and Oliver S. Mullikin, the subscribing witnesses to the will, both of whom testified, as did Mr. Butler, that, at the time of the execution of the second will, the testator was capable of making a valid deed or contract. The witness Mullikin testified that no person, other than the subscribing witnesses, the testator, and Mr. Butler, were present when the will was executed, and the witness North testified that he conversed with Mr. Willis prior to the execution, who told him that he was making a will and that his son Alonza had his bank book and he was afraid he would get his money. ¹⁵⁰ The record shows that the bulk of the estate, or practically all of it, consists of savings bank deposits amounting to $3,208.37 as of January 4th, 1934, and the obligations against it, if any, are not shown. The will, which is brief, bequeaths the estate as follows: To W. Alonza Willis, $100; to each of the two daughters $25; and to Thomas H. Willis and Blanche A. Willis, the daughter-in-law, share and share alike, the rest and residue of the estate. This will was filed for probate on November 27th, 1933, and, before probate, notice of a caveat thereto was duly filed.

The caveat and answer having been regularly filed, subsequent proceedings ensued, whereby the usual issues were framed and ordered to be sent to the 'Circuit Court for Talbot County, to be tried by a jury. Later, however, a stipulation was filed in the proceedings, agreeing that the issues be heard by the orphans’ court, whereupon the order of the court sending the case to the circuit court for trial was rescinded, and the case submitted to the orphans’ court. At the conclusion of the testimony, the court found a verdict for the caveatees on all four of the issues submitted to it, which issues, in substance, were as follows: (a) Mental capacity at the time of the execution of the will; (b) knowledge of its contents, by the testator, at the time of the execution; (c) undue influence practiced upon him, constraining his will; (d) procurement of the will by fraud or duress practiced upon him. Accordingly it passed an order denying the prayer of the petition and caveat, and admitting the will to probate.

From that order this appeal is taken. At the hearing in this court, the questions raised by the first and third issues were the only two stressed by the appellants. The record is replete with testimony adduced on behalf of the caveators, for the purpose of showing mental incapacity; which testimony, in our opinion, does not mount up to the standard required to meet the burden of proof. The exceptions are based upon rulings of the lower court ¹⁵¹ upon the evidence, and these rulings will now be considered.

Arthur Gannon was called for the purpose of expressing an opinion as to the mental capacity of the testator. In substance he testified that he was forty-two years of age and had known Mr. Willis ever since he could remember. No details of contact between the witness and the testator were given by Gannon, other than that he saw Mr. Willis on one occasion “during the early summer or in the spring of 1931.” The witness then met him in Easton; they visited Denton together, returned to his home, and dined together. He later stated that he did not know what time of the year this meeting took place, but that it was in the spring, some time, and that “maybe we went over to Denton after some chickens.” He was asked if he conversed with the testator, and, upon answering in the affirmative, was then asked: (a) What did he notice, if anything, about the keenness of his mind ?

(b) To describe how Willis acted and talked on the occasion of the trip he took with him in the spring of 1931 ? (c) The condition of the testator on that occasion? (d) His mode of conversation on that occasion, as compared with his previous knowledge of the testator? To all of these questions, objections were promptly interposed, and sustained.

In the absence of any offer of proof to indicate the relation of these questions to- the issues involved, it would be impossible to predicate reversible error upon these rulings. The witness, in the course of his examination, stated that the physical condition of the testator seemed to be all right, and that his eyesight, which will be hereafter referred to, was fair. He had detailed no incident whatever in connection with the testator which would indicate either the want of mental capacity or the possession of any peculiarity, and it must be remembered that he was testifying to facts connected with a casual meeting in the spring of 1931, and that the will was executed on the last day of June, in that year. While mental condition and any peculiarities of a testator may in some ¹⁵² cases be such as to play a part in the procurement of a will by undue influence, even though it is not sufficient to support a finding that the testator in a particular case was not competent to make a will, if left free to do it as he might wish, so far as the testimony of Gannon related to either mental capacity or undue influence, there was no foundation laid which would justify either the questions or answers thereto, and accordingly the rulings were proper.

Mecutchen v. Gigous, 150 Md. 79 , 182 A. 425 . In Gesell v. Baugher, 100 Md. 677 , 60 A. 481, 482 , in considering the legal sufficiency of testimony necessary to set aside a will upon the ground of mental incapacity, it was said: “In disposing of this part of the case, it is important to bear in mind two fundamental propositions which are especially applicable to it: “First. The law presumes every man to be sane, and to possess the requisite capacity to make a valid will. Brown v. Ward, 53 Md. 382 ; Higgins v. Carlton, 28 Md. 142 ; Davis v. Denny, 94 Md. 392 , 50 A. 1037 . “Secondly.

Testimony, in order to be legally sufficient to overthrow the presumption in favor of sanity and capacity, must be directed to the date of the execution of the will, and must tend to show that the testator was at that time incapable. For the purpose of shedding light on his condition at that time, but for no other purpose, evidence of his bodily and mental condition both before and afterwards may be produced. Davis v. Calvert, 5 G. & J. 300 ; Brashears v. Orme, 93 Md. 447 , 49 A. 620 . But if the opinion of the witness is desired to prove, not capacity, but incapacity, the question put to him must be such as to limit the inquiry to the date of the making of the will.

Jones v. Collins, 94 Md. 410 , 51 A. 398 ; Brashears v. Orme, supra" The second exception to the evidence, stressed by the appellants, was to a granted motion to strike out the answer of W. Alonza Willis, one of the caveators, to a question directed to an alleged indebtedness from Thomas ¹⁵³ Willis to his father, amounting to $500, and evidenced by two notes which the witness, Alonza, testified he had seen. In answer to the query, what was done with these notes, the witness stated that his father wanted to give them to the sheriff several times; that