Pollard v. Hawfield, 9635.

• Decision Date: 20 September 1948
• Docket Number: No. 9635.,9635.
• Citation: 170 F.2d 170,83 US App. DC 374
• Parties: POLLARD et al. v. HAWFIELD et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

83 US App. DC 374, 170 F.2d 170 (1948)

POLLARD et al. v. HAWFIELD et al.

No. 9635.

United States Court of Appeals District of Columbia Circuit.

Argued May 12, 1948.

Decided September 20, 1948.

Mr. Luther Robinson Maddox, of Washington, D. C., for appellants.

Mr. Albert Brick, of Washington, D. C., for appellees.

Before CLARK and WILBUR K. MILLER, Circuit Judges, and CURRAN, District Judge, sitting by designation.

CLARK, Circuit Judge.

This is an appeal by caveators from a judgment of the District Court admitting to probate and record as the last will of Mary Elizabeth Ellyson, a paper dated April 14, 1944.

The testatrix died on January 7, 1946, at the age of 86. She had never married, and her only heirs and next of kin were the children and grandchildren (including appellants) of her several deceased brothers and sisters. In 1932, the testatrix engaged Mabel Adams as her housekeeper. Mabel Adams remained in that capacity until March 20, 1944, when she was discharged by Mrs. Florence O. Metz, a niece of the testatrix and one of present appellees. In 1940, testatrix suffered a paralytic stroke and thereafter remained bedridden and partially paralyzed until her death. In 1941, Nurse Scott, a graduate nurse and one of appellees, came into the household of the testatrix and attended the testatrix until she died. Another nurse, Mattie Edwards, also attended the testatrix for a period of about five weeks commencing on March 18, 1944. It is apparent from the record that the testatrix became ill in March of 1944 and hence Nurse Edwards was called in to aid Nurse Scott. The cause of this illness was not established at the trial — appellants claim testatrix had pneumonia, but appellees assert that she had a "deep cold" or a "bronchial cold." It is clear, however, that the testatrix had sufficiently recovered from this illness by the latter part of April, 1944, so as to no longer require the services of the extra nurse. The contested will was signed by the testatrix on April 14, 1944.

Testatrix had executed, in 1931 and 1932, two wills, both of which named as legatees the descendants of her several deceased brothers and sisters. A codicil (executed in 1939) to the 1932 will added Housekeeper Adams as a legatee. These three documents were introduced in evidence along with a purported will dated July 14, 1941, which was in the same phraseology as the prior wills but which also contained a specific bequest to the housekeeper and a share in the residuary estate. In all of these, the National Savings and Trust Company of Washington was named executor.

In the contested will, the attending physician of testatrix, appellee Hawfield, is named executor. In this latest will the legatees are reduced from about eight heirs and next of kin to three. Housekeeper Adams is not mentioned therein, and Nurse Scott is named a beneficiary.

On March 26, 1946, Dr. Hawfield filed in the District Court a petition for probate of the 1944 will. Thereafter, Housekeeper Adams filed a caveat resisting probate of that will and asking that issues be framed for a jury trial. By subsequent order of the District Court all of present appellants were allowed to join in and adopt the Adams caveat. The case then proceeded to jury trial below, the following four issues having been framed: (1) Was the paper writing dated April 14, 1944, the last will and testament of Mary Elizabeth Ellyson, deceased; (2) was Mary Elizabeth Ellyson at the time of the making and subscribing or of the acknowledging by her of the said paper writing of sound and disposing mind and capable of executing a valid will; (3) was the said paper writing obtained, or the execution thereof, or the subscription thereto procured from Mary Elizabeth Ellyson by fraud or deceit practiced upon her by Nurse Scott, Mrs. Metz, or any other person or persons; and (4) was the said paper writing obtained, or the execution thereof procured from Mary Elizabeth Ellyson by the undue influence or duress, or coercion of Nurse Scott or any other person or persons? At the conclusion of the trial the first two issues were answered by the jury in the affirmative, the third and fourth in the negative. The answer to the third (as to fraud or deceit) was directed by the court. Accordingly, the trial judge ordered that the contested will be admitted to probate and directed the issuance of letters testamentary to Dr. Hawfield. From this action appellants (caveators) have appealed. It is interesting to note that, for some unexplained reason Housekeeper Adams, the original caveator, is not a party to this appeal.

Appellants first contend that the trial judge erroneously denied two requested prayers on the presumption of undue influence and on testamentary capacity. We do not agree with that contention. Examination of these prayers and comparison with the charge as given by the trial judge reveal no error in the charge as to the law on undue influence and testamentary capacity. Even...