Woodruff v. Linthicum

Oeeutt, J., delivered the opinion of the Court. Sarah L. Linthicum, after a lingering illness, died at her home at Linthicum Heights in Anne Arundel County, on May 24th, 1927, in the fifty-ninth year of her age. She left to survive her two daughters, Sarah Louise Linthicum and Eleanor Linthicum Woodruff, and Sweetzer Linthicum, Jr., who was the father of her children and from whom she had been divorced on March 1st, 1926. Mrs. Linthicum, then Miss Crisp, was married to Sweetzer Linthicum, Jr., on Hovember 20th, 1888.

After their marriage they moved into the home at Linthicum Heights, which’ had just been completed and where she was living at her death. Their children were born there, and there she and her husband lived together until their separation in 1925. ⁶⁰⁵ The earlier years of the marriage seem to have been reasonably happy. Mrs. Linthicum was an affectionate wife, a devoted mother, a careful manager, bright and happy in her nature, deeply interested in her home, and the most pervasive and persistent impression she appears to have left with those who knew her best was that she always wanted to do the right thing. While the record is silent as to Sweetzer’s conduct prior to 1915, it contains nothing to support the inference that he was not a kind and affectionate husband and father, and his wife’s apparent affection for him indicated that he was.

The first break in their relations came some ten years prior to her death. At that time her health began to fail, and at or about that time she discovered evidence of an illicit amour between her husband and one Edith Kaline. When she spoke to him of his relation with Miss Kaline, he said he would stop “going with her”; and his wife did not know he had broken his promise until September, 1925, when she again became convinced that his relations with Miss Kaline, if they had ever been broken, had been resumed. Again she spoke to him of his relations with the woman, and said that she wás going to see her.

On that occasion he denied any misconduct, but his denial evidently did not allay his wife’s suspicion, for from then on every time she saw him she “talked with him” to “find out if it was so.” But it may be inferred that even then she was on friendly terms with her husband, for on Labor Day, which fell on September 7 th, in 1925, she called on her friend Miss Georgia Allen Hutton, who conducted a sanatorium in Baltimore, and told her that Sweetzer had gone to Fairfield to collect some rents, and that she, Mrs. Linthicum, had told him that because it was so hot she would not go with him, but for him to bring her the paper and “go home to dinner,” and that when the paper came the front page was missing. At that time Miss Hutton knew, what Mrs. Linthicum did not, that on the missing page was an account of the bigamous marriage of Sweetzer Linthicum and Miss Kaline, which had taken place ⁶⁰⁶ at Elkton on September 2nd, 1925, and she too tore the front page from the paper before giving it to Mrs. Linthicum. But on the following morning Mrs. Linthicum summoned Miss Hutton, and showed her the same article in the morning paper. She was crying, hysterical, and in a state of collapse, and Miss Hutton at once telephoned for Mrs. Woodruff and Dr. Milton Linthicum, and then took her to her home in Linthicum Heights.

When they, arrived there, they found Sweetzer, and notwithstanding what had occurred he remained for a week or two before he left. On September 21th, 1925, Mrs. Linthicum filed a bill for an absolute divorce from him, and on March 1st, 1926, a final decree granting her that relief was entered in the Circuit Court for Anne Arundel County. It was after these shocking and distressing experiences that Mrs. Linthicum came, on October 20th, 1925, to make the will which is the subject of this litigation, and in which she made the following disposition of her estate: To her daughter Sarah Louise she left $15,000, in trust for the use of Sweetzer Linthicum, Jr., for his life, and then to Sarah Louise Linthicum and Eleanor Woodruff, share and share alike, with power to the trustee to use the corpus to insure an annual income of $900 to Sweetzer. To Sarah Louise $10,000 for her life, so long as she remained unmarried, and, in the event of her marriage, then to her and Eleanor share and share alike, and in the event of the death of Sarah unmarried, then to Eleanor if living, and if not to her children absolutely.

To Sarah Louise Linthicum, the home place with its contents, charged however with the right of Sweetzer to live thereon “should he be unmarried,” unless he and his daughter Sarah should agree to the contrary. To. 'Eleanor Linthicum Woodruff, $12,000. To the two daughters all the residue of her property, share and share alike. Seth H. Linthicum, her brother-in-law, and Sarah Louise Linthicum, her daughter, were appointed executors.

On June 2nd,.1927, the will was admited to probate in the Orphans’ Court of Anne Arundel County, and letters testa ⁶⁰⁷ mentary issued thereon to Seth H. Linthicum and Sarah L. Linthicum, the appellees in this case. On September 9th, 1927, Eleanor Linthicum Woodruff filed in that court a caveat, in which she alleged (1) that the will had not been properly executed, (2) that it was not executed when Mrs. Linthicum was of sound and disposing mind, and capable of executing a valid deed or contract, (3) that its execution was procured by undue influence exercised and practiced upon the testatrix and constraining her will thereto, (4) that its execution was procured by fraud exercised and practiced upon Mrs. Linthicum and constraining her will thereto, and (5) that she did not know or understand its contents. As a result of further pleadings, issues presenting those questions in the order in which they have been stated were framed and transmitted to the Circuit Court for Anne Arundel County for trial. At the conclusion of the case for the caveator, the court directed a verdict for the caveatees on the first, third, and fourth issues, which left for the consideration of the jury the second and fifth issues, relating respectively to testamentary capacity, and the testatrix’s knowledge of the contents of the will.

The verdict of the jury being for the caveatees on both of those issues, the caveator appealed. So objection has been made in this court to the action of the trial court in respect to the first and fourth issues, so that the single question presented by the appeal is whether the evidence offered at the trial of the case was legally sufficient to show that the will was procured by undue influence exercised and practiced upon the testatrix. The law concerning the degree and nature of the influence, which, if exerted upon one to induce him to make a deed, contract, or will, must be characterized as undue, has long since crvstalized into a formula, which in Higgins v. Carlton, 28 Md. 123 , 144, is thus stated: “That the undue influence which will avoid a will must be an unlawful influence, on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, ⁶⁰⁸ destroying free agency; it must not be the influence of affection or attachment, nor the mere desire of gratifying the wishes of another, for that would be a very strong ground in favor of a testamentary act; and there must be satisfactory proof that the will was obtained by this coercion, or by importunities which could not be resisted, so that the motive was tantamount to force or fear.” Every person having testamentary capacity has, under the laws of this state, the right to dispose of his estate by will (Code, art. 93, sec. 328), and when a will made in the exercise of that right has been duly executed in compliance with the formalities prescribed by the statute (Code, art. 93, sec. 332), ordinarily it will be presumed that it is the will of the testator. And one attacking it on the ground th,at it was procured by undue influence carries the burden of establishing that fact.

Tyson v. Tyson, 37 Md. 567 . If it should appear that the testator did not at the time -the will was executed possess the requisite testamentary capacity, or that, being mentally competent, he executed it under compulsion or -as a result of fraud, the instrument will be set aside, for in such a case it would not be his will; it would be either no' will at all or the will of another. Boyce v. Rossborough, 6 H. L. C. 41. But since the law gives to every person possessing the requisite testamentary capacity the right to make a will, when in the exercise of that right he does make one, after complying with all the formal requisites prescribed by the statute, it will not be set aside on the ground that it was procured by undue influence, unless it shall affirmatively appear that it was “executed by him against his will, in obedience to a dominion or control exercised over him and which he was unable to resist.” Tyson v. Tyson, supra.

It is not enough to show a mere suspicion that the will was procured by undue-influence exercised and practiced upon the testator (Kennedy v. Dickey, 100 Md. 164 ; Beyer v. LeFevre, 186 U. S. 125 ; Smith v. Shuppner, 125 Md. 416 ), or even that a person had the “power unduly to overbear the will of the testator”' (Baudains v. Richardson [1906], A. C. 185), but it must ⁶⁰⁹ appear that the power was actually exercised, and that by means of its exercise the supposed will was produced. Ibid. These general principles were recognized in the leading case of Davis v. Calvert, 5 G. & J. 301 , and since that case (1833) in varying phraseology have often been affirmed and restated by this court. Layman v. Conrey, 60 Md. 286 ; Hiss v. Weik, 78 Md. 439 ; Griffith v. Benzinger, 144 Md. 583 ; Longanecker v. Sowers, 148 Md. 588 ; Bowers v. Kutzleb, 149 Md. 315 .

Turning to the facts, there is not the slightest evidence, direct or circumstantial, that the will in this case was not the free voluntary and deliberate act of Mrs. Linthicum, or that any one exercised any influence of any character upon her to procure it. The only persons interested in it are her daughters, Seth H. Linthicum, and Sweetzer Linthicum, Jr. But it is not even contended that Sweetzer Linthicum, Jr., her former husband, by word or act induced its execution, since at the time it was executed they were living apart, and it does not appear that prior to her death he knew of its existence. It was suggested at the argument that Seth H. Linthicum, his brother, may have influenced her in making it, and it was intimated that he may have drawn it. Mot only does the evidence fail to support either inference, but it does affirmatively