Longworth, In re

• Citation: 222 A.2d 561
• Parties: In re Anne C. LONGWORTH et al., Appellants, from Decree of Judge of Probate.
• Decision Date: 02 September 1966
• Court: Supreme Judicial Court of Maine (US)

Page 561

222 A.2d 561

In re Anne C. LONGWORTH et al., Appellants, from Decree of

Judge of Probate.

Supreme Judicial Court of Maine.

Sept. 2, 1966.

David A. Nichols, Camden, for appellants.

Samuel W. Collins, Jr., and John L. Knight, Rockland, for Depositors Trust Co.

Clifford F. O'Rourke, Camden, for Camden Community Hospital and Congregation Church.

Alexander R. Gillmor, Camden, for Camden Public Library.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, and RUDMAN, JJ.

WILLIAMSON, Chief Justice.

This is an appeal by several heirs of the late Suzanne H. Wyatt (hereinafter called the testatrix) from the allowance of an instrument as her last will and testament in the Supreme Court of Probate.

The appellants urge that the Court erred as a matter of law (1) in failing to find that Depositors Trust Company (hereinafter called Trustee or Bank) was guilty of such undue influence 'as will void this will when it failed to urge this testatrix to seek independent legal advice before executing a will by which the residue is left to Depositors Trust Company in trust in perpetuity and from which service as trustee it would benefit,' and (2) 'in failing to find that the purported bequest of residue to Depositors Trust Company was void because two of the subscribing witnesses were officers of Depositors Trust Company, which would benefit thereunder from its service as trustee in perpetuity.'

From the testimony of witnesses and written evidence, the basic facts emerge without dispute.

In the spring of 1962 the testatrix, 92 years of age, sought the advice of officers of the Camden branch of the bank in connection with her securities worth nearly $250,000. Some five years previously she had received a large bequest from her sister which formed the bulk of her estate. After conferences with trust officers of the bank, she adopted their suggestion of a revocable inter vivos trust with after her decease income to certain heirs and two grand nephews for life and the remainder in perpetual trust for charitable purposes.

A bank officer suggested that Samuel Collins, Esq., a Rockland lawyer, represent the testatrix. He arranged a conference with the lawyer and accompanied the testatrix to the law office. Mr. Collins then met the testatrix for the first time. He conferred with her at his office and at her home, reviewed the plans for the trust and her estate, and drafted the revocable trust and the will executed by her on June 6, 1962.

In the words of the Justice below, Mr. Collins 'was the attorney to whom 'a good deal' of the legal work of the bank in the area had been referred.' There is nothing in the record to suggest that Mr. Collins acted for the bank other than, as he so testified, to 'look up titles to real estate and prepare mortgages for that bank from time to time,' and without a retainer. Neither the bank nor Mr. Collins informed the testatrix that he had represented the bank in any way.

In the 'Memorandum of Facts, Law and Decision Thereon' of the Justice below we read:

'This court finds as a fact that there was no undue influence exerted upon Mrs. Wyatt, by the Depositors Trust Company, or its officers or by attorney Collins, to any degree, and that the living trust as well as her will were executed by her with full understanding and of her own free will, and that both answered well her desires in the matter of the disposition of her property. She knew at all times the extent of her estate and was fully aware of her closest relatives, the appellants; she left the income of all her property to them and her grandnephews, Frank and Marion Goodwin for the duration of their respective lives. The appellants expected to partake of the principal of Mrs. Wyatt's estate, but, because Mrs. Wyatt adopted the suggestions of the trust officers of the Depositors Trust Company, they are now beneficiaries of her bounty only to the extent of sharing in the income thereof during their lives, and such is their grief, but not a legal one.'

'In this case, Mrs. Wyatt was seeking advice from the personnel of the bank where she was doing business which her substantial holdings required. The corporate trustee neither initiated the interviews, nor were the actions of its personnel of the importuning variety. Mrs. Wyatt was given advice that she sought, considered and adopted as her own. The matters were fully explained to her by the trust officers of the bank as well as by Attorney Collins. There is not a scintilla of evidence that she was imposed upon or that she did not understand any part of the trust agreement or the will. She could, at any time, before execution, have desisted from any further pursuance of the purported disposition of her property, but she did persist therein of her own free will, because the suggested recommendations of the trusted fiduciary met with her own desires and designs as to the disposition of her property. She did consult about these documents with the only relative in whom she placed any trust, with her grandnephew, Frank Goodwin.'

In their brief below, says the Justice in the Memorandum, the appellants 'disclaim any suggestion of fraud, duress or wrong-doing on the part of the (Bank), or on the part of 'those who guided Mrs. Wyatt (the testatrix) in the execution of these instruments on June 6, 1962 (the trust and will)."

The appellants' contention on their first point comes to this: that the will is void for undue influence exercised by the Bank in not urging the testatrix to consult independent legal counsel.

A corporation seeking business as a corporate fiduciary must of course maintain the strict standards of a trustee. The Bank here thus entered into a confidential relationship with the testatrix in the development and completion of plans for her trust and estate.

The testatrix was entitled to legal advise independent of the Bank. For example, the Bank would have violated its duty as a fiduciary if the trust officers had advised the testatrix in matters of law, in the capacity of independent legal counsel. Such a violation of duty would have been apart and distinct from questions arising from the improper practice of the profession of law by a corporation.

In our view, Mr. Collins was an attorney available under the circumstances to give independent legal advice to the testatrix. There is not evidence that his relationship with the Bank was such that it could have been said that his advice to his client would be influenced thereby. That the Bank recommended Mr. Collins and arranged the first conference with the testatrix did not affect the attorney-client relationship into which they entered. Mr. Collins was the attorney of the testatrix, and not an attorney for the Bank.

Cases cited by the appellants do not reach the precise situation before us. See for example Oswald v. Seidler, 136 N.J.Eq. 443, 42 A.2d 216, and Israel v. Sommer, 292 Mass. 113, 197 N.E. 442. In Oswald supra, the settlor, even if competent mentally, was advised in establishing a nonrevocable trust not by a lawyer of her choice, but by an attorney chosen upon recommendation of an uncle of the beneficiary. The Court said, 42 A.2d at p. 218:

'We think the trust deed was not fair, open, voluntary and well understood by complainant, nor did she have the benefit of adequate, independent advice as required by law.'

In Israel, supra, the Massachusetts Court set aside a settlement made by an attorney in a confidential relationship who gained considerable advantage for himself. The Court pointed out it would have been the plain duty of any attorney to have advised the settlor not to sign. The Court said, 197 N.E. at p. 447:

'But unless it appears that the presumed influence resulting from the relationship has been neutralized, by completely unselfish advice from the attorney, by independent legal advice from another, or in some other manner, the attorney cannot expect his bargain to stand.'

Our Court has in vigorous terms set aside purchases of tort claims and claims left for collection by an attorney. Dunn v. Record, 63...