Drury v. King

• Decision Date: 01 June 1943
• Docket Number: 10.
• Parties: DRURY v. KING et al.
• Court: Maryland Court of Appeals

32 A.2d 371

182 Md. 64

DRURY v. KING et al.

No. 10.

Court of Appeals of Maryland

June 1, 1943

Appeal from Circuit Court, Charles County; Wm. Meverell Loker, John B. Gray, Jr., and Charles C. Marbury, Judges.

Will caveat by James K. King and others against Anne W. Drury, the executrix named in said paper writing. From a decree in favor of caveators, the caveatee appeals.

Reversed and remanded.

A. Kingsley Love and Paul J. Bailey, both of Leonardtown, Harry I. Kaplan, of Baltimore, and F. DeSales Mudd, of La Plata, for appellant.

No appearance for appellees.

Submitted to SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON MELVIN, and ADAMS, JJ.

SLOAN Chief Judge.

This case comes here on an appeal by the caveatee from the affirmative answer of a jury to an issue of undue influence in the execution of a will. There were four exceptions to rulings on the evidence. The first issue was the execution of the will, which it was stipulated was executed by the testator and was in proper form and properly attested; and the answer was, therefore, 'Yes.' As to the second issue, mental capacity, which was not disputed, the Court directed the answer, 'Yes.' The fourth, fraud; an answer, 'No,' was directed. On the third issue, undue influence, the caveatee, by her third prayer, asked a directed answer, 'No,' which was rejected; and from an answer, 'Yes,' by the jury, the caveatee appeals. The question then is the legal sufficiency of the evidence to support the charge of undue influence.

After the answer of the jury, the caveatee made a motion N. O. V for an answer in her favor, which was denied by the decision of two judges against it, and one for it; three judges having sat in the case.

The will in question was executed by Dr. Joseph D. King of Ridge in St. Mary's County, December 18, 1939, whereby he devised and bequeathed to his wife, Henrietta F. King 'one-third undivided interest' in his estate 'according to law.' To each of his six children, he left five dollars, 'it being my intention that they shall receive that sum each and no more.' All the rest and residue of his estate, he gave to his 'good friend,' Anne W. Drury, caveatee and appellant. The widow and all of the children filed petitions for caveats in the Orphans' Court of St. Mary's County, which issues, which were agreed upon, were sent to the Circuit Court for St Mary's County; whence on the suggestion of the caveatee, they were removed to Charles County, where they were tried, with the results stated.

This is a strange case, without a parallel in the will cases which have come to this Court. The testator was a country physician. He and his wife, Henrietta F. King, were married in April, 1899, and lived together until in January, 1939. Seven children were born to them, six of whom are living and named in the will.

There is little or nothing in the record to show why he left. Mrs. King said, 'That they lived very well and very pleasantly together up to the last year or two before he died. (That means up to the time of the separation.) That they had seven children; That she did not know the reason for Dr. King's leaving unless it was outside influence.' In December, 1938, he contracted pneumonia, which developed into tuberculosis from which he died October 31, 1940. Shortly after leaving home, he went to the Mount Wilson Sanatorium, where he remained until May, 1939. On leaving Mount Wilson, he maintained a small room and office in a building about a quarter mile from his home, at the home of Mrs. James Somers where Mr. Drury, husband of the appellant, also lived. Mrs. King said Mrs. Drury was not living with him there; 'he was keeping store down there; at least he was clerking in the store.' Dr. King remained there until September, 1939, when he returned to Mount Wilson, where he stayed about two weeks. Shortly after his return, he went to the Leonardtown Hospital for a few weeks, then to Sabillasville; how long he stayed there, does not appear. On his return, according to Mrs. King, he went to the home of Mrs. Drury, located at St. Inigoes, about three miles from Ridge, remaining until he was taken to the hospital, then to Sabillasville in August or September, 1940, and was there until he died on October 31, 1940.

Mrs. King said the Doctor 'came home every two or three weeks, at which times, he talked about business,' and she tried to get him to come back to stay, 'as it was not necessary for him to go away in the first place.' According to her, he was not providing for her, and she had to borrow money to run the house. He said he had no money. 'I cannot give you any; we will have to economize, because this man Drury is going to sue me; they are going to get everything from me; I won't have a shirt on my back.' Later, in February, 1940, he sold some property for $5,000, of which she got $2,000. She said she refused to sign the deed unless she did get it.

No one can tell from this record why Dr. King so abruptly left home. Of course none of us know the true conditions in the others' homes. What we do know is that this woman, with whom he had lived forty years and who bore him seven children, was left what he had to leave her 'according to law.' The children, to whom a parent owes everything, were cut off, but why? The answer, if there is any, must be found in this record; otherwise, the will, unnatural as it is, must stand. But the Court cannot for this reason set aside the will and write another for the testator 'without unsettling the fixed principles of law.' Saxton v. Krumm, 107 Md. 393, 400, 68 A. 1056, 1059, 17 L.R.A.,N.S., 477, 126 Am.St.Rep. 393.

A daughter, Frances King Trimmer, a trained nurse, who had resided at West Falls Church, Virginia, since 1926, and who was married February 12, 1938, is the one of the children who seems to have kept in close touch with her father after he left the family home in 1939; she visited him frequently from that time and was present at Sabillasville when he died. She went to see her father several times after he went to Mrs. Drury's. On one occasion, while he was there, she had been asked about a certain statement Mrs. Drury had made, but on objections and motions to strike, the questions and answers were stricken out. We do not know why, but they were, and cannot be considered. She was asked, however, without objection: 'Q. Mrs. Trimmer, during the time that this statement was made, can you recall what led up to that statement, or what, if any circumstances existed, as far as your father and Theodore Drury were concerned? What had you been discussing, that led to that? A. She had some papers there that were--that her husband was trying to sue my father--she tried to make me read those papers, about suing my father, I told her I was not interested in the papers; it did not concern me.' She said the letters she received from her father until the summer of 1939, 'were very friendly, affectionate, like they had always been.' 'There was a definite change the fall that he went to Mrs. Drury's to stay; * * * some of them would be very sarcastic, and ask me not to come there to see him, and he would see me at the funeral parlor, and things to that effect; he did not want to see me any more; whereas before, the letters had been very affectionate and kind.' 'He was always unfriendly from the first time I visited him there (at Mrs. Drury's),' though formerly their relations had been friendly. After he was on his final visit to Sabillasville, Mrs. Trimmer saw him three times, the day he died, and ten and twenty days before. It was quite a distance from where she lived in Virginia to the sanatorium. On the day her father died, Mrs. Trimmer arrived at Sabillasville about 2:30 in the morning, 'and about eight or nine o'clock that morning, the morning of his death. Mrs. Drury was there, and she went out to get her breakfast or something; she came back about eleven. * * * He was lying there very quiet.' 'He was lying there very quiet, apparently asleep. She came in, very tense, and in a loud voice she said, she kept screaming and saying, 'did she, did they make you sign anything did they make you sign anything?' He was more or less dumbfounded; I mean he seemed like he was frightened or something. She said, 'I told you she was going to be here.' She said, she called me some name, I could not make out what it was at the time.' Asked, Q. 'When you arrived there, was your father very ill? A. Yes, he was perfectly conscious until the minute he died, because the superintendent of nurses called me to talk to me, she called me to come out in the hall, and said it was the request of Mrs. Drury that I stay out of the room. (That is the way it is in the record). Q. Did you notice that he was in a very weakened condition when you went there? A. Yes, he was. He was just hardly whispering; he was so weak he could hardly whisper; he kept on repeating that he was dying. And every time I could put my had under the covers, he would reach for it and hold my hand very tightly; but if Mrs. Drury was there, there was no recognition at all, as if I was not even in the room.' 'When Mrs. Drury came in the room, he would take his hand away, and he would not even state the fact that he was dying, he would not say anything at all.' At 1:30 in the afternoon, just eleven hours after Mrs. Trimmer arrived at Sabillasville, he died.

A son James Kerns King, testified that he saw his father twice at Mrs. Drury's in the presence of two or more sisters, and on the occasion of his last visit in the presence of Dr. Peck and a brother-in-law of the witness, Mr. Ridgell. Saw Mrs. Drury both times. On the last visit 'probably in the late Fall of 1939, his father asked, 'why I did not say hello to Mrs. Drury on my previous visit' to which the witness...