Wood v. Hankey

Pattison, J., delivered the opinion of the Court. The sole inquiry in the trial of this case in the: lower Court Was whether George E. Hankey, late of Frederick. County, deceased, had at the time of the execution of the paper writing purporting to be his last will and testament the mental capacity to malee a valid will. At the conclusion of the plaintiffs testimony the Court, at the request of the defendants, instructed the jury that no evidence legally sufficient had been offered “to show that George E. Hankey, at the time he executed the will, dated December 30th, 1871, offered in evidence, was not of sound and disposing mind and capable of executing a valid deed or contract”; and thereupon the jury returned a verdict for the defendants.

The main question presented by this appeal arises from the action of the Court in granting this instruction. In the Berry Will case, 96 Md. 19 , where the same question was presented, and where the evidence was not submitted to the jury, this Court, speaking through Judge McKEKRY, said: “We are not dealing with the question of sanity or insanity, whatever that mysterious malady called insanity may be, according to the theories of speculative specialists, the law, in the administration of justice: both in civil and criminal proceedings, has its own standards of mental capacity and responsibility, and to those standards judicials tribunals must look and by them they must be governed, when dealing with questions of the character now before us. By the legal standard he who is possessed of sufficient capacity at the timje of executing his will to make a disposition of his estate with judgment and understanding in reference to the amount and situation of his property and the relative ³⁹¹ claims of the different persons who should have been the objects of his bounty, is mentally competent to make a valid will. Davis v. Calvert, 5 G. & J. 269 ; Jones v. Collins, 94 Md. 408 .

In a word, if he has capacity enough to make a valid deed of conveyance or an ordinary contract, then, he has capacity enough to make a, valid will.” George E. Hankey died December 20th, 1915, age sixty-six years. The alleged will was executed December 30th, 1874, more than forty years before the death of the testator, when he was about twenty-five years of age. The record discloses, that at that time his estate was valued at about, six thousand dollars ($6,000) and when appraised after his death, its value had increased to twenty-four thousand two hundred and seventy-nine dollars and thirty-four cents ($24,279.34). His estate was at all times under his control and management and under his management it was quadrupled within the period of forty years.

George E. Hankey left no father or mother and no children, or descendants- The caveators, are his nieces and nephews, some of whom he had never seen and with none of them was he on intimate relations. He, by his alleged will, devised and bequeathed his estate as follows: To his executor the sum of one thousand dollars ($1,000) “In trust for the children of Henry Han-key, a brother; and upon the marrigo of said children, or either of them, to pay over to them who shall so marry their respective share or shares of said legacy,” etc.; to Sabina G. C. Foster (a sister), the sum of one thousand dollars ($1,000) ; to his executor, one thousand dollars ($1,000), in trust for the children of John Hankey, a brother; to Woodstock College in Baltimore County, Maryland, the sum, of twelve hundred dollars! ($1,200), in trust for Williamina Hankey, a, sister, for and during' her natural life, and upon her death to Woodstock College absolutely; to Reverend John Gaffney, the sum of five hundred dollars ($500) ; to his executor, in trust, for William T. Burkhart, five hundred ³⁹² dollars ($500), the interest thereon to be paid to him for and during his natural life, and upon his death to the Reverend John Gaffney absolutely; to each of fifteen friends the sum of fifty dollars ($50) ; and to St. Mary’s Orphans Asylumi of Baltimore City the rest and residue of his estate with a provision, that in the event of any legacy -or bequest lapsing, or failing to vest by reason of the legatee or devisee being incapable in. law of taking, holding, or receiving the same; that it should go to and “vest into ‘St. Johns Literary Institution,’ a body corporate of Frederick City, Md.” The will directed his executor to enclose with an iron fence the grave of his mother and to erect a tombstone at the testator’s grave similar to that marking hisi mother’s grave. 'Clinton Willard, a merchant of Frederick with whom George E. Hankey dealt for fifteen years, testified that “Han-key knew the price of things, and would ask the price of produce, such as eggs and butter*, and what Was paid for them”; that on one occasion witness went to see him and asked him to loan some money to a friend and he told witness that he did not know the party, but if witness Would endorse a note, he would loan it to him. This witness did, and the money, seventy dollars ($10), was loaned as requested.

He further testified that in his opinion Hankey was capable of making a valid deed or contract. Harry ‘O. Frye, a tenant upon Hankey’s farmi, testified that the deceased knew how to take care of himself “a good deal better than he could the other man.” When asked if he was not a hard fellow to beat in a deal, he replied,. “I never tried to beat him, but I suppose he would have been.” 'Charles D. Hickman, a merchant- at Doub’s, Frederick Oounty, Maryland, with whom Hankey also dealt for twenty years or more, and where he ran an account, testified “he knew how to pay me; was very particular about the pay part. He Would try to get me to knock off a few pennies. He could take care of himself in small deals of that kind.” Dr. Charles H. Conley, who had known Hankey about seventeen years, and had attended him in his last illness, as ³⁹³ well as on one or two other occasions, and who also, had attended a member of his, family in the year 1908 or 1909, testified that Hankey during) his last illness told him that he, in the winter of seventy-four or seventy-five had executed a will drawn by Judge MoSitioiijky; that the will had been lost, mislaid or stolen; that he had placed it in “A certain room) or closet” in his home “and both he and Miss Hester Geisbert (who lived with him,) had hunted for it, and that he was of the impression that it had been stolen by members of bis family.” It was in this closet or room that the will was found after his death.

Dr. Conley’s first visit to him,, in his last illness; was on the 17th or 19th of October and he continued his visits until the day of his death, paying him in all, at such time; about forty visits,. In a, conversation with witness, Hankey told him, “that he had left his property to a number of charitable institutions,” one of them was in Frederick City, but, be was of tbe opinion that some of those institutions “had gone out of existence.” Witness suggested to him that “in all probability if tbe parties who had stolen the will, as he expressed it, had it,, that they would wait until his death, then probate tbe will.” He. replied saying): “Oh, no, it is not in their favor.” He then spoke of making a new will, saying that he wanted his estate to go “as far as he could just as he had left it in the prior will, with the exception of some of these institutions that he thought were out of existence,” for them he wished to substitute other institutions. He, however, put off -mjaki-ng it. “The day of his death his mental caliber Was as keen as it over was. He spoke of the will that day but be wanted to wait until lie was strong.

He could not realize that, he was a dying man, did not want to realize it.” Dr. Conley further testified that he had many conversations with Hankey and found that 'Tía had an unusually intelligent mind, a man I might sa,y of rather strong: personality, exaggerated personality, but, a, man of strong mentality.” He was quite a reader and read magazines that he ³⁹⁴ carried him;. In one of these was an article upon “International Conditions,” this he read and discussed intelligently with witness. He took the daily papers, among them was a German paper, whether he could read it witness could not say, hut he knew that he could speak German. The doctor* then testified in reply to a question propounded'by the Court that assuming his mental condition and capacity was the same on December 30th, 1874, as it was at the time he knew him and attended him as his physician, he was; in his opinion, of sound and disposing mind and capable of executing a valid deed or contract on the 30th day of December, 1874.

Other witnesses who knew him at the time of the execution of said alleged will and wlm continued to know him, to the time of his death had previously testified that his mental condition was during the latter years of his life about the same as it was at the time of the execution of the will. Against this positive and convincing; evidence that George E. Hankey had at the time of the execution of the said will mental capacity sufficient to make a valid will is found certain testimony in the record showing that he possessed peculiarities and eccentricities. The evidence