Hess v. Frazier

• Decision Date: 25 June 1975
• Docket Number: No. 516,516
• Citation: 340 A.2d 313,27 Md.App. 150
• Parties: Patricia Dietrich HESS et al. v. Antoinette L. FRAZIER et al.
• Court: Court of Special Appeals of Maryland

Page 150

27 Md.App. 150

340 A.2d 313

Patricia Dietrich HESS et al. v. Antoinette L. FRAZIER et al.

No. 516.

Court of Special Appeals of Maryland.

June 25, 1975.

Certiorari Denied Sept. 29, 1975.

Edward A. Palamara, Rockville, with whom were Cohen, Fodiman, Palamara & Goldman, Rockville, on the brief, for appellants-cross-appellees.

Wilson K. Barnes and Clarence M. Thomas, Baltimore, with whom were Savage, Jones, Tingle & Schwartzman, P. A., Baltimore, on the brief, for appellees-cross-appellants.

Argued before MORTON, MOYLAN and MASON, JJ.

MOYLAN, Judge.

Helen Lee Dietrich died in Baltimore City on or about November 8, 1971, leaving a considerable estate. She died alone, not attended by any physician. On the night of the discovery of her remains by her son-in-law, there was also found her purported Last Will and Testament. This was turned over to the named executor. This purported Last Will was filed in the Orphans' Court for Baltimore City.

Surviving the testatrix were two daughters, Patricia Dietrich Hess and Helen Neal Dietrich Curley, the appellants in this case, and two grandchildren, Mark Hess and Lisa Hess, children of the appellant Patricia Dietrich Hess. Also surviving the testatrix were her two sisters, Antoinette L. Frazier and Rita V. Chalmers, and a brother, William Edward Smith (all of whom are the appellees herein along with the executor, Francis X. McDonough). The Last Will and Testament in question essentially divided the estate into five equal parts, with one-fifth going to each of the testatrix's two daughters, two sisters and brother. Immediately upon the filing of this will in the Orphans' Court, the appellants filed their Petition for Caveat.

Four agreed-upon issues were certified for jury trial to the Superior Court of Baltimore City. The issues to be determined by the jury were as follows:

'1. Was the decedent, at the time of the execution of said Instrument, of sound and disposing mind and competent to make a Will?

2. Was the Will, purported to be executed by the decedent, procured by undue influence, exercised and practiced upon her?

3. Was the Will, purported to be executed by the decedent, procured by fraud exercised and practiced upon her?

4. Was the contents of said Will read by the decedent or read to her or otherwise explained to her before the execution of said Instrument?'

A jury trial on the certified issues was conducted in the Superior Court from February 6, 1973, through March 1, 1973, Judge James A. Perrott presiding. At the close of the appellees' case, the court directed a verdict in favor of the appellees on issues 2, 3 and 4. The first issue went to the jury, which decided that the decedent was not competent at the time she executed her Last Will and Testament on December 12, 1968. On March 29, 1974, on motion duly made, Judge Perrott granted a Judgment Non Obstante Veredicto in favor of the appellees on the first issue. On this appeal, the appellants raise two contentions:

(1) That the trial court erred in granting the Motion for Judgment N.O.V.; and

(2) That the trial court erred in granting the Motion for Directed Verdict on the second issue.

The appellees have also filed a cross-appeal in which they charge that seven erroneous and harmful rulings were made against them during the course of the trial-in one case involving the failure to charge the jury and in six other cases involving the admission of and refusal to strike certain testimony.

We will consider first the granting of the directed verdict in favor of the appellees on the second issue, which was whether the will was 'procured by undue influence.'

The appellants do not contend that the decedent's sisters or brother exercised any undue influence upon her. Indeed, the evidence revealed that they had had little contact with her during the months and years prior to her death and were pleasantly surprised to have been significant legatees under her will. The appellants direct their focus at the appellee-attorney, Francis McDonough, who prepared the will. Even taking the testimony, and all reasonable inferences drawable therefrom, in the light most favorable to the appellants, there is no evidence suggesting any undue influence practiced upon the decedent by her attorney. The decedent had prepared, through another attorney, an earlier will in October, 1968. In that earlier version, she had left each of her daughters the sum of $1. After advising with Mr. McDonough, the decedent changed this provision in the December 12, 1968, will. Indeed, a bequest to Mr. McDonough himself in the proposed October, 1968, will was not carried forward into the December 12, 1968, will. In his initial draft of the new will, moreover, Mr. McDonough had provided for each daughter to receive a cash bequest. Mrs. Dietrich eliminated this provision, necessitating a redraft of the proposed will. Mr. McDonough was not present when the will was executed. He testified further that Mrs. Dietrich was a strong-willed woman and a shrewd business woman, not easily influenced.

A key portion of Mr. McDonough's testimony, relied upon by the appellants, is indeed adverse to their cause:

'I indicated to Helen Lee Dietrich that that will was susceptible to attack. I told her it would be better to include her daughters in the will. It was up to me to tell her that. I am accused of using undue influence. If I would have convinced the lady to leave the estate to the two daughters, they wouldn't have this caveat, but that is how much influence I had. But Helen Dietrich was a practical business woman. When I explained to her that the will would be caveated, the will that Bill McDonald drew, possibly, and she asked, what happened in a caveat case. I said, well, normally the party makes some sort of a compromise, the party that has been left the estate makes some compromise with the caveators, especially if the caveators are the children. She said, 'You mean they split it to a fifth?' I said, yes. It was under those circumstances she decided to give them each a fifth.'

The appellants' position that the will was an 'unnatural will' does not hold up under analysis. Mrs. Dietrich's two daughters each received a one-fifth interest in her estate. They were neither disinherited nor ignored, even though the evidence established some estrangement between mother and daughters in the few years preceding her death. She was displeased that they had apparently 'sided' with their father during a period of marital difficulty between Mrs. Dietrich and her former husband. Nor did Mrs. Dietrich bequeath even the remaining three-fifths of the estate to strangers. Her two sisters and her brother were normal 'objects of one's bounty.' The decedent's sister Mrs. Frazier had taken trips with Mrs. Dietrich and was the one who had come up from Ocean City to assist Mrs. Dietrich in leaving Springfield State Hospital. The disposition of the estate was in no way 'unnatural' or indicative of any lack of capacity to make such disposition. Shearer v. Healy, 247 Md. 11, 25-26, 230 A.2d 101 (1967).

Nor is there any proof whatsoever of undue influence over Mrs. Dietrich on the part of Mr. McDonough. The Maryland law in this regard is clear. In Shearer v. Healy, supra, the Court of Appeals stated at 247 Md. 23, 230 A.2d 106:

'The Maryland law in regard to the required proof to establish undue influence vitiating a will was well stated by Judge (now Chief Judge) Hammond, for the Court, in Stockslager v. Hartle, 200 Md. 544, 547, 92 A.2d 363 (1952), as follows:

'* * * (U)ndue influence which will avoid a will must be unlawful 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, so that free agency of the testator is destroyed. The proof must be satisfactory that the will was obtained by this coercion (although it need not be immediately exercised as of the date of the execution of the will if its influence causes its execution) or by importunities which could not be resisted, so that the motive for the execution was tantamount to force or fear. Mere suspicion that a will has been procured by undue influence, or that a person had the 'power unduly to overbear the will of the testator' is not enough. It must appear that the power was actually exercised, and that its exercise produced the will. The burden of proof is on the caveator to meet these requirements of the law.' (Emphasis supplied)

The Court in Stockslager cited with approval and followed Koppal v. Soules, 189 Md. 346, 56 A.2d 48 (1947). See also Layman v. Conrey, 60 Md. 286 (1883).'

See Sachs v. Little, 245 Md. 343, 371-372, 226 A.2d 283 (1967); Ingalls v. Trustees, 244 Md. 243, 268-270, 223 A.2d 778, 791-792 (1966); Treffinger v. Sterling, 269 Md. 356, 363, 305 A.2d 829 (1973).

There was simply no evidence in this case that any undue influence was exercised by Mr. McDonough over the testatrix. The trial judge was not in error in directing a verdict in favor of the appellees on this issue.

The more significant controversy is over the question of whether the trial judge was in error when he granted the Motion for Judgment N.O.V. in favor of the appellees-reversing the verdict of the jury and finding that Helen Lee Dietrich was 'of sound and disposing mind and competent to make a will' as of December 12, 1968. Focusing almost exclusively on this single salient issue, the trial consumed fourteen court days and produced 1550 pages of transcribed testimony. Approximately 30 witnesses were called, including seven doctors. Numerous physical exhibits were introduced.

The thrust of all of the evidence was to the effect that Helen Lee Dietrich was at the time of her death, and had been for many years before, an alcoholic. At issue was the effect of this alcoholism upon her testamentary capacity.

The legal standard against which the sufficiency of the evidence to create a jury issue will be reviewed was well set out by Judge Singley for the...