Cook v. Hollyday

• Decision Date: 07 February 1946
• Docket Number: 66.
• Citation: 45 A.2d 761,185 Md. 656
• Parties: COOK v. HOLLYDAY.
• Court: Maryland Court of Appeals

45 A.2d 761

185 Md. 656

COOK v. HOLLYDAY.

No. 66.

Court of Appeals of Maryland

February 7, 1946

Appeal from Superior Court of Baltimore City; E. Paul Mason, Judge.

Proceeding by Audrey Louise Hollyday against Fillmore Cook, executor of the estate of Evelyn Cook, deceased, to contest the will of deceased. From the verdict of the jury and the decision and determination on the issues submitted, and from the overruling and refusal of a motion for judgment notwithstanding the verdict, the executor appeals.

Affirmed.

See also 45 A.2d 768.

Joseph Townsend England, of Baltimore, for appellant.

Edward L. Ward, of Baltimore (John R. Norris, of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, and MARKELL JJ.

COLLINS Judge.

This is an appeal by Fillmore Cook, executor of the estate of Florence Evelyn Cook, deceased, from the verdict of the jury and the decision and determination on the issues submitted and from the overruling and refusal of a motion for a judgment n.o.v. (notwithstanding the verdict), in a case of caveat filed to the will of Florence Evelyn Cook by her daughter, Audrey Louise Hollyday.

The testatrix in the will in question devised all her property to her daughter, Audrey Louise Hollyday, subject to Items II and III of the will. She named her brother-in-law, Fillmore Cook as executor without bond.

For a proper consideration of the case it is necessary to quote Items II and III, which follow:

'Item II. Whereas, upon good and valuable considerations, I have heretofore entered into an agreement with my brother-in-law, Fillmore Cook, on behalf of himself, his wife, Catherine E. Cook, and his daughter, Vivian Dorothy Cook, their heirs, personal representatives and assigns, whereby I have agreed that before my undivided one-half right, title, interest and estate in the fee simple property, known as the Aurora Theatre lot and improvements, Nos. 7 and 9 East North Avenue, Baltimore, Maryland, and also my forty-nine shares of the Capital Stock of the Paradise Amusement Company, a body corporate of the State of Maryland, or any part, right, title, interest, estate or share thereof, shall be sold, mortgaged, otherwise disposed of, or enure to others thereto or therein, or be offered for sale, mortgage, other disposition thereof or any enurement to others thereto or therein occur in any manner whatsoever, except as to the devise and bequest thereof to my daughter, Audrey Louise Hollyday, made in this, my Last Will and Testament, the same shall first be offered for sale to the said Fillmore Cook, or case of his death, to his widow, Catherine E. Cook, or in case of the death of both the said Fillmore Cook and Catherine E. Cook, to their daughter, Vivian Dorothy Cook, their heirs, personal representatives or assigns, at and for the price of Twenty-thousand ($20,000.00) Dollars, less one-half of the balance of any mortgage indebtedness and accrued interest remaining unpaid and accruing under any mortgage existing upon the entire fee simple estate in said property Nos. 7 and 9 East North Avenue, and that no sale, mortgage, other disposition or enurement to another or others thereof, shall be offered, negotiated, made, consummated or enurement be effective until the said Fillmore Cook, Catherine E. Cook or Vivian Dorothy Cook, as the case or lives may be as aforesaid, shall have refused to purchase as aforesaid or shall have renounced his or her rights under said agreement by a writing under his or her hand and seal, duly witnessed and acknowledged according to the law governing the execution of Deeds, and I now charge my undivided right, title, interest and estate in said fee simple property and my said forty-nine shares of the Capital Stock of The Paradise Amusement Company in the devises and bequests hereinafter set forth with the aforementioned terms, provisions, and stipulations of said Agreement.' (Italics supplied here.)

'Item III. After the payments enumerated in Item I hereof, and subject to the terms, provisions and stipulations of the agreement set forth in Item II hereof, I give, devise and bequeath all my estate, property and effects, real, personal and mixed, in possession, reversion, remainder and expectancy, and wheresoever situated unto my daughter, Audrey Louise Hollyday.'

The issues submitted to the jury and the answers of the jury to those issues follow:

'1--Were the contents of said paper-writing, dated the 18th day of January, 1943, purporting to be the Last Will and Testament of Florence Evelyn Cook, read to or by the Testator, or known to her at or before the time of the alleged execution thereof?'

A. Under the instruction of the Court, 'Yes.'

'2--Was the execution of said paper-writing, dated the 18th day of January, 1943, purporting to be the Last Will and Testament of Florence Evelyn Cook, procured by undue influence exercised and practiced upon her?' A. 'Yes.'

'3--Was the said paper-writing, dated the 18th day of January, 1943, purporting to be the Last Will and Testament of the said Florence Evelyn Cook, executed by her when she was of sound and disposing mind and capable of executing a valid deed or contract?' A. 'No.'

'4--Was the said paper-writing, dated January 18th, 1943, and purporting to be the Last Will and Testament of Florence Evelyn Cook, deceased, procured by fraud and misrepresentation exercised and practiced upon her at the time of the execution of said paper-writing?' A. 'Yes.'

The appellant testified that previous to February 24, 1933, Mrs. Lula H. Cook owned a one-third interest in the properties, Nos. 7 and 9 East North Avenue, the real estate, the bowling alleys, and thirty-three and one-third shares, a one-third interest, in the Paradise Amusement Company. He owned a one-third interest in the same properties and stock and the remaining one-third interest was owned by the testatrix, who inherited it from her husband, the brother of the appellant. This one-third interest of Lula H. Cook was offered to him for the price of $5,333.33 (one-third of $40,000, less one-third of the then balance on the mortgage and the thirty-three and one-third shares of stock at $10 per share) and not to the testatrix. If he had acquired it in his own right, the testatrix would have then owned a one-third interest in the properties and stock and he would have owned a two-thirds interest. He testified that he and the testatrix then made a verbal agreement. He said, 'The agreement was that Mrs. Florence Evelyn Cook and myself would take over the interest of Mrs. Lula H. Cook in the property numbers 7 and 9 East North Avenue, the real estate, the bowling alleys, and the thirty-three and one-third shares of the Paradise Amusement Company in our joint names and would then, each of us, transfer to my wife one of our shares of stock in the Paradise Amusement Company, which would leave forty-nine shares in my name and forty-nine shares in the name of Mrs. Florence Evelyn Cook, and two shares in the name of Catherine E. Cook, my wife, and that was made for the purpose of giving my wife and myself the controlling interest in the corporation, the Paradise Amusement Company.

'Q. Now, was that the whole agreement? A. No, sir.

'Q. What else? A. That is part of it.

'Q. Go ahead? A. That Mrs. Florence Evelyn Cook would not transfer this property--her interest in the real estate, in the bowling alleys, and her forty-nine shares of stock to anyone except myself, my wife, or my daughter, at the same price at which it had been sold by the rest of the family to Mrs. Lula H. Cook, to my brother, Mr. John B. Cook, and myself, which was at the rate of forty thousand dollars, and that upon the death of her daughter the property would be transferred to either of us, myself, my wife, or my daughter, at the same figure, forty thousand dollars, and that no sale or offer of sale should be made to anyone except myself, if living, or my wife or daughter if I had been deceased.'

He further testified that at the time this verbal agreement was made he had been a practicing attorney for thirty-one years, was attorney for Florence Evelyn Cook and had been attorney for her prior to that time and since, and had prepared the will in question. He further stated that after the agreement was made Mrs. Lula H. Cook's interest was conveyed on February 24, 1933, in a deed drawn by him. The testatrix and he then each sold one share of stock to his wife, Catherine E. Cook, for $10 a share thereby giving Fillmore Cook and his wife a fifty-one percent interest in the corporation and leaving the testatrix with a forty-nine percent interest.

He further stated that on Saturday, January 16, 1943, his wife called him on the phone from testatrix' home telling him that testatrix was seriously ill and she thought that he ought to see her and as a result of that message he went to her home to see how she felt, talk to her, and see whether he could be of any assistance or service to her as they had always been very friendly, as friendly as two people could be. When he arrived she was suffering some pain and he knew that she was ill.

On the following day, Sunday, January 17, 1943, he again went to the testatrix' home, proceeded to her bedroom on the second floor, and sat on the side of testatrix' bed. At that time he said she was a very sick woman. The caveatrix and daughter of the testatrix, Audrey Louise Hollyday, sat in a chair at the foot of the bed. The testatrix then said to him 'I want to make my Last Will and Testament.' He then asked her what provisions she desired to make. She stated that she wanted to leave her entire estate to her daughter. He said to her, 'That would include the Aurora Theatre property, as well as the Highlandtown Post Office property and your...