Mecutchen v. Gigous

• Decision Date: 19 February 1926
• Docket Number: 56.
• Citation: 132 A. 425,150 Md. 79
• Parties: MECUTCHEN v. GIGOUS ET AL.
• Court: Maryland Court of Appeals

132 A. 425

150 Md. 79

MECUTCHEN v. GIGOUS ET AL.

No. 56.

Court of Appeals of Maryland

February 19, 1926

Appeal from Circuit Court, Prince George's County; J. C Mattingly and Wm. Meverell Loker, Judges.

"To be officially reported."

Proceeding for the probate of the will of Jemima Bartlett, wherein Laura B. Mecutchen was caveatrix and W. Gigous and the Fidelity Trust Company of Baltimore, executors of the deceased, were caveatees. On trial of issues of mental capacity and undue influence in circuit court, court directed jury to answer issues in favor of caveatees, and caveatrix appeals. Rulings affirmed in part and reversed in part, and new trial ordered.

Offutt and Parke, JJ., dissenting in part.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, PARKE, and WALSH, JJ.

S Marvin Peach, of Upper Marlboro, for appellant.

M Hampton Magruder, of Upper Marlboro (Max Rhoade, of Washington, D. C., Lansdale G. Sasscer, of Upper Marlboro, and Henry D. Harlan, of Baltimore, on the brief), for appellees.

BOND C.J.

The chief question brought up by this appeal is one of the legal sufficiency of evidence produced by the caveatrix of a will, as proof of mental incompetency of the testatrix or of the procurement of the will by undue influence. The testatrix, Mrs. Jemima Bartlett, a widow about 76 years old, living at Brentwood, in Prince George's county, had one daughter, Mrs. Mecutchen, who has been of weak mind for 31 or 32 years, required to resort to a sanitarium at irregular intervals, and of late years almost continuously confined there. She was confined to the sanitarium at the time of trial. The mother, Mrs. Bartlett, was possessed of an estate, of both real and personal property, of a total value, as appraised, of $56,093.42. She executed her will on July 15, 1924, at the house of a Mr. Winter Gigous, where she was then living, in the presence of three witnesses: Lloyd V. Moxley, of Brentwood, Judge Isaac D. Arnold, of Brentwood, E. G. Lorenz, of Washington, D. C., and of Mr. Max Rhoade, an attorney.

The evidence of the caveatrix (the defendants were not required to produce any), shows that Mrs. Bartlett had the will on the table, by her side, when the witnesses were there, that she was asked by Mr. Rhoade whether she knew the contents, and answered, "I know every word of it." Moxley, the only witness to the will who was called by the caveatrix to testify, said she talked, while waiting, of her old home in England, and the pleasant days she had spent in her old home at Brentwood; and, in response to a direct question as to the decedent's mental condition at the time, Moxley answered:

"With all fairness to every one concerned in this case, at that particular time, as I said before, gentlemen of the jury, she appeared to be mentally sound, just at that time. I could not say whether she was before or what her condition was after."

So much covers the testimony of the execution of the will. Mrs. Bartlett died five months later, on December 13, 1924, and the will was admitted to probate by the register of wills, during recess of the orphans' court five days later, on December 18, 1924. The orphans' court ratified the probate on December 23, 1924.

The will gave three small legacies of $500 each--one to a sister, one to a Dr. Mary Parsons of Washington, and one to the town of Brentwood for fire-fighting facilities--and two legacies of $100 each to Sophia Randall and Frank Johnson, brother of the testatrix. Then followed a legacy of $10,000 to Mrs. Florence E. Gigous, described by the testatrix as her "beloved friend," and one whom she had intimately known for ten years, and had known nine years before that, and with whom Mrs. Bartlett lived for the last two years of her life. An explanation was inserted that conditions in Mrs. Bartlett's own home had, by reason of the daughter's unfortunate mental disease, become intolerable, and that the mother avoided these by moving into the Gigous household. In the event that Florence E. Gigous should die before the testatrix, the amount was to go to her husband; and, if both should die before the testatrix, it was to go to those who would take their personal estates upon intestacy. The residue, after that legacy of $10,000, was to be placed in trust (Winter Gigous and the Fidelity Trust Company, trustees) to pay $100 a month to the daughter or her guardian or committee, the principal, however, to be used, if needed, without power of anticipation, and, in addition, such sum or sums as might be reasonably and absolutely necessary for medical treatment; the necessity being certified by three physicians.

There follows a recital that the daughter's condition, as the mother is advised, is permanent and practically incurable, and that because of it the provisions of the will for her benefit have been limited to such income and provisions as the testatrix deems reasonable for her support; and for the same reason trustees are authorized to suspend and cease making payments to her personally if her mental condition makes it inimical and undesirable in her own welfare, the amounts then to be paid out on her behalf instead. At the daughter's death, all the property, with any unexpended income, was to be paid over to Mr. and Mrs. Gigous, or, if they should then be dead, to their next of kin. Winter Gigous and the Fidelity Trust Company were named as executors and trustees.

The caveat, as has been stated, has been filed in the name of the daughter. Trial on the two issues of mental capacity and undue influence was had in the circuit court of Prince George's county, and, at the conclusion of the evidence on behalf of the caveatrix, the court directed the jury to answer the issues in favor of mental capacity and against procurement by undue influence. The court explained to the jury that incidents and circumstances adduced to establish the contrary were susceptible of other explanations, and the mere fact that the jury might conclude, upon such understanding as they had of the circumstances, that they, in the same situation, would have made greater provision for the daughter, did not afford a ground for answering the issues as demanded on behalf of the caveatrix. There was a suggestion by the court that the daughter's husband, who testified, was bound to provide for her, but, upon representation of counsel for the caveatrix that he had been divorced, that element was put aside. The husband was called to testify as to the cost of maintaining his wife at the sanitarium, but was not permitted to testify on the point.

In the incidents and circumstances adduced, there is much that is of little or no importance, but a brief summary of all of it, on the question of mental capacity, at least, seems necessary.

There was no expression of opinion by witnesses in the case that the testatrix did not have the capacity which the law requires. Unless we attach importance to a repetition by one witness of a remark of her own that the testatrix was childish (but see Berry Will Case, 49 A. 401, 93 Md. 560, 583, and Gesell v. Baugher, 60 A. 481, 100 Md. 677, 685), there was no expression of opinion at all on the point of legal capacity, except that of one of the attesting witnesses to the will, who, called for the caveatrix, said the testatrix appeared at the time of executing the will to be mentally sound, and he could not say whether she was so before or after that. The proof offered in the case consisted of scattered incidents and remarks of the testatrix, mostly before the execution of the will, and what is considered an otherwise unaccountable preference of others, strangers to the blood, over the daughter of the testatrix. Such incidents and remarks, relied upon to prove mental incapacity must be "inconsistent with sanity" to serve for that purpose. Davis v. Calvert, 5 Gill & J. 269, 300 (25 Am. Dec. 282). And in this case they must be sufficient to support a finding of permanent insanity, because there is no evidence of insanity merely at the time of execution. Gesell v. Baugher, supra, page 687 (60 A. 481).

Nearly every witness called testified to one or more failures of the testatrix during the years before making her will to recognize old acquaintances. In nearly every instance, this occurred when there had been no previous meeting for periods of from one and a half years to three years. It is common knowledge that such lapses occur with people who are otherwise perfectly competent, even much younger people. And it is significant that one of the witnesses here, Mrs. De Andelet, explained, of an instance three years before the trial, that "she either did not wish to speak to me, or did not know me," and added, "She acted--but she had a way of doing that, but she had done that oftentimes, she would know you one time and not know you the next, so I never knew when I spoke whether she would answer me or not, when I gave her a chance." It would seem to outreach the testimony on these lapses to say that it was, in itself, evidence of anything abnormal at all, and far outreach it to say that it was any evidence of incapacity to make a valid deed or contract. Berry Will Case, supra, page 573 (49 A. 401); Stewart v. Redditt, 3 Md. 67, 79; Kennedy v. Dickey, 59 A. 661, 100 Md. 152, 159, 68 L. R. A. 317.

Two witnesses testified that the testatrix believed in spiritualism, and engaged in spiritualistic seances; but certainly that is no evidence of incapacity to make a valid deed or contract. It is well known that even people of very high capacity entertain such a belief. Brown v Ward, 53 Md. 376, 393, 394 (36 Am. Rep. 422). Beyond this testimony, there is evidence that during one witness' service as her agent, a period of thirteen or fourteen years, a grocer may have imposed on her, having borrowed...