Yivo Institute for Jewish Research v. Zaleski

SHARER, Judge. In this appeal we are called upon to consider the doctrine of ademption by satisfaction (or advancement), a concept of Maryland jurisprudence taken up only infrequently by our appellate courts. Appellant, the YIVO Institute for Jewish Research, asks this Court to reverse a ruling by the Orphans’ Court for Montgomery County 1 that it was not entitled to distribution of a bequest in the will of Jan Karski. Appellees are the personal representative of the estate, and two (of several) beneficiaries, the Kosciuszko Foundation and The American Center of Polish Culture.

Two questions are presented for our review, which, reordered, are: 1. Did the Orphans’ Court err in admitting testimony as to oral statements made by Decedent substantially after satisfaction of Decedent’s pledge to YIVO? ⁵³⁰ 2. Did the Orphans’ Court err in holding that Decedent’s specific bequest to YIVO was adeemed by satisfaction? For the reasons herein stated we answer each of the questions “no” and shall affirm.

FACTUAL and PROCEDURAL HISTORY The Decedent Jan Karski was a hero of the Polish underground movement during World War II, reporting to the Allied powers until he was captured by the Nazis. During his confinement he was tortured and suffered many serious injuries. After attempting suicide to avoid making disclosures that could have endangered others in the underground, he was taken to a Nazi-controlled hospital from which he was later rescued by movement members. Among those participating in the rescue, which resulted in the death of several of the rescuers, was Zofia Hanuszkiewicz, who spent several years in a German prison camp for her role.

She was also a beneficiary of Dr. Karski’s estate. 2 At the end of World War II, Dr. Karski emigrated from Poland to the United States and settled in the Washington, D.C. area, where he taught for many years at Georgetown University. At the time of his death, he resided in Montgomery County. Dr. Karski was a Roman Catholic who was involved in the culture of his native Poland. As such, he developed strong ties with several Polish organizations, including the Kosciusz-ko Foundation (“Foundation”) and The American Center of Polish Culture (“Center”).

Both of those organizations are beneficiaries of his estate. After settling in the United States, Dr. Karski attempted to mend the relationship between Jews and Poles. To that end, he sought to memorialize his deceased wife, Pola Nirenska, and himself, through an annual award for “[ljiving authors of ⁵³¹ published works ... dealing with or otherwise describing contribution to Polish culture and Polish science by Poles of Jewish origin and by Polish Jews from the Middle Ages to the current time.” 3 In furtherance of his intent, he entered into an agreement with appellant, the YIVO Institute for Jewish Research in New York City (“YIVO”), 4 whereby he would provide YIVO with a $100,000 endowment to fund the annual award. The pledge took the form of a letter agreement dated November 25,1992, which provided in pertinent part: The endowment will consist of a gift of $100,000.00 in cash to be made by me to YIVO in my Will, or in cash and/or marketable securities of the same total market value during my lifetime....

For reasons not clear from the record, a second identical letter was signed by Dr. Karski on February 25,1993. Later, on October 15, 1993, Dr. Karski executed a will which contained the following provision: 5 SECOND: I hereby give and bequeath to YIVO—Insti-tute for Jewish Research (tax exempt organization Dr. Lucjan Dobroszycki and Dr. Ludwik Seidenman)—all my shares of Northern States Power (N.St.Pw.) of which 400 share certificates are located in the Riggs National Bank, Friendship Branch (4249 block of Wisconsin Avenue), Safe Deposit Box 240, and the rest, approximately 1,780 shares, ⁵³² is held by Northern States Power as automatic reinvestment. All these shares (approximately 2,180) should be transferred (not sold) to YIVO. Beginning in 1995, Dr. Karski transferred to YIVO a number of the shares, named specifically, and bequeathed partially in his will, to the Foundation and the Center.

In all, he assigned 1,809 shares of New York State Electric and Gas Corporation and 2,300 shares of the Ohio Edison Company to YIVO between November 28, 1995 and January 22, 1996. He added his personal check in the amount of $2.31 to the stock transfers, bringing the total to an even $100,000. 6 Dr. Karski did not amend his will to reflect the inter vivos transfer of stock and cash to YIVO. Had he done so, of course, this litigation would not have occurred. Dr. Karski died on July 12, 2000, and appellee Paul Zaleski qualified as the personal representative. 7 Because of his earlier gift, the personal representative denied YIVO’s request for payment of the bequest on the basis that the gift had been satisfied.

The personal representative took the position that the inter vivos payments to YIVO “cancelled” the bequest. As a result, appellant filed, on September 25, 2002, a Petition for Order Directing Distribution of Specific Bequest. The Orphans’ Court conducted an evidentiary hearing on June 20, 2003. The court rendered an oral opinion, finding that Dr. Karski intended for his inter vivos gifts to YTVO to fulfill the legacy under the will, and that the satisfaction met the requirements for ademption by advancement.

Following the entry of final judgment, YIVO filed this timely appeal. ⁵³³ STANDARD of REVIEW The applicable standard of review in this action is derived from Maryland Rule 8-131: (c) Action tried without a jury. When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Md. Rule 8-131 (2003). 8 DISCUSSION 1.

Did the Orphans’ Court err in admitting testimony as to oral statements made by Decedent substantially after satisfaction of Decedent’s pledge to YIVO? Important to the Orphans’ Court’s factual finding in this case was the testimony of Dr. Hanna-Kaya Ploss, Dr. Karski’s close friend, who is the executive director of The American Center of Polish Culture. Appellant argues that the court erred by permitting her to testify about statements made by Dr. Karski concerning ITEM SECOND of his will. YIVO raises alternative arguments: first, that the statements were not made sufficiently close in time to his 1995-96 gift to indicate his intention when making that gift; and second, that the testimony was hearsay.

After YIVO’s objection was overruled by the court, Dr. Ploss testified, ⁵³⁴ I don’t know what was in that will, but Dr. Karski was not a compulsive man who would pound on something over and over, but from time to time he said, “You know, maybe I should change my will just in case the Yivo Institute will come back and ask once more for the money when I already have given it to them,” and then he always answered his own question, “No. They are much to [sic] decent to do such a thing. No.” He was absolutely sure they will not come a second time and ask for the money when I have already given it to them, that is something that sticks in my mind, “I have already given them the money.” Dr. Ploss testified that Dr. Karski had made similar statements on several occasions in the years after his gift to YIVO. She also testified that during the ensuing years he never indicated his intention to provide any further gifts to YIVO. In order for evidence to be admitted, it must be relevant and admissible.

Appellant’s first argument, that Dr. Karski’s statements to Dr. Ploss were too remote in time from his gift, concerns relevance. The Relevance of Dr. Ploss’ Testimony Appellant argues that Dr. Ploss’ testimony about Dr. Karski’s statements to her, made most frequently during the last two years of his life, but on occasion before then, are inadmissible because, they are too far removed in time from his 1995-96 gift to YIVO to be considered relevant. Appellant points to no case law supporting this proposition, but treats various treatises as controlling authority. 9 ⁵³⁵ In its brief appellant tells us that “rarely, if ever, should the issue of ademption be decided by matters outside the contemporaneous written record,” and cites, as its authority, Selby v. Fidelity Trust Co., 188 Md. 192, 199 , 51 A.2d 822 (1947). We do not view Selby as supporting appellant’s argument as to proximity of the statement.

There, the Court noted: In such cases [where the gift and advancement was made to a person to whom the testator does not stand in loco parentis ] the question would turn on the provision of the will, or on a writing of the testator showing he intended the advancement to be in substitution for the legacy provided in the will. Id. at 199 , 51 A.2d 822 . Nowhere in Selby does the Court apply a test of proximity. We have found no Maryland case that makes the admissibility of a decedent’s statements concerning his intentions dependent upon the proximity of the statements to the gift.

Although a court may find that statements made distant in time to a gift do not reflect the declarant’s intentions upon making the gift, the statements are not inadmissible, as not relevant, simply because they were made after the fact. The nearness or remoteness in time to the statement of intent, vis a vis the gift, may, on the facts of a particular case, be significant in determining relevance. Relevancy of testimony is for the trial court’s determination. We give great deference to those rulings and will not set them aside absent an abuse of discretion.

See, e.g., J.L. Matthews, Inc. v. Maryland-Nat’l Capital Park & Planning Comm’n, 368 Md. 71, 91-92 , 792 A.2d 288 (2002); Farley v. Allstate Ins. Co., 355 Md. 34, 42 , 733 A.2d 1014 (1999). ⁵³⁶ The Testimony Fit the Exception in Rule 5-803(b)(3) Maryland Rule 5—803(b)(3) provides an exception to the general rule that hearsay testimony is inadmissible. Among the exclusions from the operation of the rule against hearsay are: Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and health), offered to prove declarant’s then existing condition or the declarant’s future action, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

Md. Rule 5—803(b)(3) (2003) (emphasis added). The parties contend that two cases interpreting this rule govern our decision, National Soc’y of the Daughters of the Am. Revolution v. Goodman, 128 Md.App. 232 , 736 A.2d 1205 (1999), and Farah v. Stout, 112 Md.App. 106 , 684 A.2d 471 (1996), cert. denied, 344 Md. 567 , 688 A.2d 445 (1997). The Court, in Farah , discussed Rule 5-803(b)(3) only briefly.

Despite the decedent’s comments indicating his intention to provide for appellant and her husband in his will, his will made no such bequest. The Court ruled that statements about the promised bequest were inadmissible under Rule 5—803(b)(3) because no bequest was ever made. 112 Md.App. at 119 , 684 A.2d 471 . Thus, this Court ruled, “the witnesses’ statements were not offered to explain [the decedent’s] future conduct, [and] the state of mind exception does not apply.” Id. The facts of Farah are inapposite to the case at hand because the Orphans’ Court was not asked to add a bequest to a will that was silent, but to determine whether a specific bequest had been fulfilled before Dr. Karski’s death.

Goodman, supra, is more directly on point. In Goodman , the Court determined that the decedent’s statements to her attorney of her intentions regarding her outdated will were admissible. 128 Md.App. at 239 , 736 A.2d 1205 . In that case, ⁵³⁷ the decedent provided in her will that 80 percent of her residual estate should be bequeathed to Gallaudet University and the remainder to the “(DAR) Daughters of the American Revolution Nursing Home for the use of destitute members of the (DAR) Daughters of the American Revolution.” Id. at 235 , 736 A.2d 1205 . After executing the will, however, the decedent learned that the Maryland chapter of the DAR had no nursing home.

She then informed her attorney that she wished to leave her entire residual estate to Gallaudet University. Id. at 236 , 736 A.2d 1205 . As a result of the decedent’s sudden stroke and death, she was never able to execute a will to that effect. The litigation ensued when the personal representative sought direction from the Orphans’ Court regarding the questioned 20 percent of the decedent’s residual estate.

The DAR prevailed in the Orphans’ Court, but the circuit court, after admitting the decedent’s statements to her attorney, denied distribution to the DAR. Id. at 236-37 , 736 A.2d 1205 . On appeal, this Court noted, “Lajlthough backward-looking statements are generally inadmissible, the Federal Rules of Evidence have carved out a limited exception for post-executo-ry declarations of memory or belief relating to the terms of a declarant’s will.” Id. at 238 , 736 A.2d 1205 . Maryland Rule 5-803(b)(3) contains a similar exception.

Quoting an earlier decision, we noted: A person’s state of mind, feelings or emotions can only be manifested to others by words, oral or written, gestures, countenance, attitude and mannerisms. While a person is alive, his own memory of what his state of mind was at a particular time is more likely to be true than that of a bystander. Yet, when the person has died, there can be no other way of proving his or her intent except by testimony of others as to the decedent’s state of mind as evidenced by words, gestures, mannerisms and the like. Goodman, supra, 128 Md.App. at 239 , 736 A.2d 1205 (quoting Ebert v. Ritchey, 54 Md.App. 388, 397 , 458 A.2d 891 (1983)).

We held that the decedent’s statements were admissible even though ⁵³⁸ [t]he statements at issue do not indicate that