Zinn v. Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine for North America

Finan, J., delivered the opinion of the Court. The dispute in this case, in one form or another, revolves around the questions: (1) who may be the proper caveators and caveatees to the testamentary instruments before us (a will and two codicils) and (2) the proper issues to be framed by the orphans’ court, for determination by a court of law per ¹⁸⁵ taining to the mental capacity of the testatrix and her knowledge of the contents of the testamentary instruments. The testatrix, Margaret May Geiger, executed her last will and testament on February 1, 1957, at a time when she was 75 years of age and after she had undergone three operations for brain tumors during the years 1936, 1949 and 1956 respectively. The will provided for a bequest of $5,000.00 to each of her two granddaughters, Vivian Lovelace Zinn and Dana Farnsworth Zinn, and under Item numbered Seventh $25,000.00 in the form oí a lifetime trust to the daughter, Vivian Geiger Zinn, with remainder to the two granddaughters.

The will further provided under Item numbered Eleventh for 12 charitable legacies totaling $19,000.00 (including one for $2,000.00 to the appellee) and a provision for $1,000.00 in trust to yield income to be spent for the replacement of flowers on a crypt. The aforegoing specific bequests total $55,000.00. It is Item numbered Twelfth of the will which gives us particular concern and which reads as follows: “Twelfth: If the rest, residue and remainder of my estate is insufficient to pay in full the legacies contained in Items Eleventh (a) to Eleventh (1), both inclusive [the charitable bequests], then I direct that the remaining assets of my estate be proportionately divided among said legatees. If the rest, residue and remainder of my estate is more than sufficient to pay said legacies in full, then I direct that any remaining assets be added to the trust estate created by Item Seventh hereof [life estate in daughter, remainder to the granddaughters], to be held upon the trusts, for the purposes, with the powers and subject to the limitations in said Item set forth, to the same end as if it had originally constituted a part hereof.” Approximately seven months later, September 27, 1957, the testatrix executed the first codicil to the will, whereby she added an additional charitable bequest (Eleventh (m)) in the amount of $1,000.00 under Item Eleventh of the will and revoked Item Twelfth substituting in its place the following: “Twelfth: If the rest, residue and remainder of my ¹⁸⁶ estate is insufficient to pay in full the legacies contained in Items Eleventh (a) to Eleventh (m), both inclusive, then I direct that the remaining assets of my estate be proportionately divided among said legatees.

If the rest, residue and remainder of my estate is more than sufficient to pay said legacies in full, then I give, devise and bequeath the remaining assets of my estate, after the payment in full of said legacies, unto the Imperial Council of The Ancient Arabic Order of Nobles of The Mystic Shrine of North America, to be used for the maintenance and support of the Shrine’s Hospitals for Crippled Children.” (Emphasis supplied.) It will be immediately noted that the revised Item Twelfth has the effect of cutting off the daughter of the testatrix and the granddaughters, as life tenant and remainderman, respectively, from the residue of the estate. Some five years and seven months after the execution of the will a second codicil was executed on October 5, 1962. The main change effected by this second codicil was to create a trust sufficient to produce $300.00 per year in favor of a niece, Lillian May Runge, for the term of her natural life. The selection of securities to provide for the Runge trust was to have priority over the bequests provided in Item Eleventh and the residuary bequest in Item Twelfth; otherwise there was no further modification of Items Eleventh and Twelfth, as provided by the will and modified by the first codicil.

Upon the death of Lillian May Runge the remaining assets of the trust created in her favor were to be added to the trust created by Item Seventh of the will (whereby the daughter of the testatrix and granddaughters were life tenant and remainderman, respectively). There was no further change regarding the residuary legatee which under the first codicil is the appellee. The second codicil concluded by ratifying and confirming the provisions of the will and first codicil, as modified by the second codicil. At the time of the testator’s death on December 14, 1964, there were assets available for distribution in the appraised value of $745,000.00.

The caveat to the will and the two codicils were filed by Viv ¹⁸⁷ ian Geiger Zinn (daughter of the testatrix) and Waitman B. Zinn and Vivian Geiger Zinn, parents and next friends of Vivian Lovelace Zinn and Dana Farnsworth Zinn (granddaughters of the testatrix), all of whom appeared as caveators in the orphans’ court and are now appellants. The caveatee was The Imperial Council of the Ancient Arabic Order of the Nobles of the Mystic Shrine for North America, now appellee. The gravamen of the challenge to the validity of the will and codicils is that the instruments all manifest that the testamentary disposition of the testatrix was oriented around the apprehension that the assets of her estate might not prove sufficient to discharge the $55,000.00 in specific bequests provided in her will, when, as a matter of fact, she had assets of approximately $700,000.00 at the time she executed the controversial first codicil to the will. The appellants contend that this concern, over the sufficiency of funds for the specific bequests, is “intrinsic evidence” (Smith v. Shuppner, 125 Md. 409 at 416 , 93 A. 514 (1915)) that she did not have knowledge of what she was doing when she executed the testamentary instruments.

Sellers v. Qualls, 206 Md. 58 , 110 A. 2d 73 (1954). In the orphans’ court the appellee raised the question as to whether all of the appellants were proper caveators. In Senk v. Mork, 212 Md. 413, 421 , 129 A. 2d 675 (1957), this Court said: “* * * the right of the caveator to contest the will must, if challenged, be established before issues as to the validity of the will are determined.” Senk cites many cases in support of this principle. Accordingly, we will discuss the proposition as to who may be the proper caveators before reaching the question of the framing of the issues.

The Caveators It is Hornbook law that in order to maintain a caveat to a testamentary instrument the caveator must show a proper interest in having the will set aside. Maryland has no statute governing who may caveat wills (Johnston v. Willis, 147 Md. 237 , 127 A. 862 (1925)); however, the rule established by many cases is: * * that any pc.rson having an interest in the property of a testator, in the event that the will is annulled, ¹⁸⁸ has the right to caveat his will, whether his interest arises from his relationship to the decedent, as in the case of an heir, or is acquired under the provisions of a prior will. Interest in the property is the very foundation of the right to caveat. * * *. (citing Hamill v. Hamill, 162 Md. 159, 166 , 159 A. 247 , 82 A.L.R. 878 ; Johnston v. Willis, 147 Md. 237, 241 , 127 A. 862 ; Lee v. Keech, 151 Md. 34, 36 , 133 A. 835 , 46 A.L.R. 1488 ; Safe Deposit & Trust Co. of Baltimore v. Devilbiss, 128 Md. 182, 185 , 97 A. 367 ; Brewer v. Barrett, 58 Md. 587 ; Blake v. Blake, 159 Md. 539 , 150 A. 861 .)” Sykes, Contest of Wills in Maryland, § 4 at 5.

In the instant case it is undisputed, and the orphans’ court so found, that Vivian Geiger Zinn, the daughter of the testatrix, is a proper person to be a caveator to all of the testamentary instruments here involved. Should she be successful in nullifying the will, she would inherit her mother’s entire estate to the exclusion of her daughters by virtue of the law of intestate succession (Code (1964 Repl. Vol.) Art. 93, § 139) there being no allegations or evidence of the existence of a prior will. Furthermore, if both codicils to the will are invalid, then by virtue of the language of Item Twelfth, as originally set forth in the will, and Item Seventh to which it refers, the trust in which she would have a life estate, would supplant the appellee as the recipient of the residue of the estate receiving most of the $700,-000.00 to be distributed under the will.

The question as to the qualification of the granddaughters, Vivian Lovelace Zinn and Dana Farnsworth Zinn, as caveators presents a more difficult question. The orphans’ court was of the opinion that they should not be caveators to any of the testamentary instruments, that is to the will or the two codicils, for want of a required interest. We agree with the orphans’ court with regard to the lack of qualifications of the granddaughters to maintain a caveat to the will, because should the will be nullified no one stands to gain thereby except their mother on whom the estate would devolve by virtue of the laws of intestacy (Art. 93, § 139). Although maternal affection might well prompt the mother to provide up ¹⁸⁹ on her death for her daughters, yet, they have no assurance that they will outlive her, or that in the event they should survive they will be the bounty of her testamentary disposition.

In matter of fact, the granddaughters have much to gain by the sustaining of the validity of the will. Not only do they each receive a $5,000.00' specific bequest under the will but as remaindermen of the trust created under Item Seventh, they may eventually receive, should they survive the life tenant, the residue of the estate which would comprise the bulk of the $700,-000.00 available for distribution. It is the opinion of this Court that the granddaughters should not be caveators to the will but to the contrary they should be caveatees to that instrument in order to protect and defend their potential interest under the will. Conversely, as to the codicils, the granddaughters may be caveators, as this should enable them to protect their full interest under the will.

We would further add that any other position, such as that advocated by the appellants in argument before this Court, places them in the inconsistent position of attacking the will, the validity of which provides the necessary interest in the estate of the testatrix, which invests them with the right to maintain the caveat to the divesting codicils. See Sykes, Contest of Wills in Maryland, § 6 at 14. The Framing of Issues In the instant case the caveat is directed to three testamentary instruments, the will and the first and second codicils. In this case an issue directed to the validity of the will becomes trifurcated as it challenges with equal force the first and second codicils as well.

Thus, although the appellants below requested the orphans’ court to frame 8 basic issues attacking the testamentary documents, when they are applied to each of the testamentary instruments they multiply to 24 issues. The orphans’ court framed the following issues to be forwarded to a court of law for trial concerning each of the three testamentary documents: “(1) Were the contents of the said paper writing dated February 1, 1957, purporting to be the Last Will and Testament of the said Margaret May Geiger, ¹⁹⁰ read to or by her, or known to her at or before the time of the alleged execution thereof?” (2) The same issue as (1) applied to first codicil by substitution of appropriate words. (3) The same issue as (1) applied to second codicil by substitution of appropriate words. “(4) Was the execution of the said paper writing dated February 1, 1957, purporting to be the Last Will and Testament of the said Margaret May Geiger, procured by undue influence exercised and practiced upon her ?” (5) The same issue as (4) applied to first codicil by substitution of appropriate words. (6) The same issue as (4) applied to second codicil by substitution of appropriate words. “(7) Was the said paper writing dated February 1, 1957, purporting to be the Last Will and Testament of the said Margaret May Geiger, executed by her when she was of sound and disposing mind and capable of executing a valid deed or contract ?” (8) The same issue as (7) applied to first codicil by substitution of appropriate words.

(9) The same issue as (7) applied to second codicil by substitution of appropriate words. “(10) Was the said paper writing dated February 1, 1957, purporting to be the Last Will and Testament of the said Margaret May Geiger, revoked after the making and execution thereof ?” (11) The same issue as (10) applied to first codicil by substitution of appropriate words. (12) The same issue as (10) applied to second codicil by substitution of appropriate words. “(13) Was the said paper writing bearing date of February 1, 1957, the Last Will and Testament of Margaret May Geiger ?” (14) The same issue as (13) applied to first codicil by substitution of appropriate words. (15) The same issue as (13) applied to second codicil by substitution of appropriate words. ¹⁹¹ The appellants quarrel with the issues framed by the orphans’ court, contending: (I) that it