Wall v. Heller

• Decision Date: 01 September 1984
• Docket Number: No. 470,470
• Citation: 486 A.2d 764,61 Md.App. 314
• Parties: Jack F. WALL v. Mary A. HELLER, Personal Representative of the Estate of Frank J. Wall. ,
• Court: Court of Special Appeals of Maryland

Page 314

61 Md.App. 314

486 A.2d 764

Jack F. WALL v. Mary A. HELLER, Personal Representative of the Estate of Frank J. Wall.

No. 470, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Jan. 11, 1985.

Jack F. Wall, pro se.

Edward C. Mackie, Baltimore (Glenn W. Trimmer, and Rollins, Smalkin, Richards & Mackie, Baltimore, on brief), for appellee.

Argued before BISHOP, ADKINS and BLOOM, JJ.

BISHOP, Judge.

Jack Wall, pro se, appeals the judgment entering directed verdicts in favor of appellee, Mary Heller, Personal Representative of the Estate of Frank J. Wall, on all issues framed by the Orphans' Court for Howard County and submitted to the Circuit Court for Howard County.

On December 7, 1978, Frank J. Wall ["Testator"], a resident of Howard County, executed a will, naming Mary Heller as Personal Representative. The will made several bequests to certain churches. In addition, $20,000 was bequeathed to both Agnes Schnell, appellee's mother, and Lore Scott-Smith, appellee's daughter. The rest and residue of the estate, after the payment of all taxes, debts and funeral expenses, was bequeathed to appellee, individually. The Testator died ten months later, on September 26, 1979, at the age of eighty-five. The will was offered for probate. Subsequently, appellant filed a Petition and Caveat in the Orphans' Court for Howard County alleging, inter alia:

1. That he was the nephew of Frank J. Wall and his only living heir.

2. That he was never notified of the Testator's death or the existence of the will.

3. That the Testator executed the will without sufficient mental capacity.

4. That the Testator signed the will without reading and/or understanding its contents.

5. That the will was procured by fraud.

6. That the will was procured by the exercise of undue influence upon the Testator.

On June 21, 1983, after prolonged procedural jockeying, ¹ the Orphans' Court, pursuant to Md. Estates & Trusts Code Ann. § 2-105 (1984), ² certified the issues of fraud, undue influence and lack of testamentary capacity to the Howard County Circuit Court for trial by jury.

Frank Wall was born and raised in Waterbury, Connecticut. He had a sister Mary and a brother Leo. Leo, who was 17 or 18 years older than Frank, moved away from home at the age of 12. Frank was born approximately 5 or 6 years after Leo left home. Neither Frank nor Mary ever married. Leo did marry, however, and had two sons, one of whom was Jack Wall. Leo's branch of the Wall family lived in Bridgeport, Connecticut, about 50 miles from Waterbury. Leo died in 1925 when appellant was an infant.

Mary and her brother Frank, the Testator in this case, lived together in Mary's Waterbury home until her death in 1962. In 1933, Agnes and Otto Schnell, appellee's parents, moved into an apartment on the second floor of the Wall residence. Otto and the Testator had been co-workers. The families became very close friends. The Testator was known to refer to Agnes and appellee as his "cousins." Appellee, Mary Heller, testified that during those early years of friendship, she had never heard of or seen either Leo or Jack Wall. Otto Schnell died in 1953 and Agnes then moved in with appellee. After Mary Wall's death in 1962, Frank Wall continued to reside in the Waterbury residence until he sold it in 1965. Shortly thereafter, Testator moved to Maryland to live with appellee, who had previously moved there with her family. Until Testator became ill in 1977, he made frequent visits to Connecticut; however, he lived with appellee from 1965 until his death in 1979. Appellee testified that during the entire time the Testator lived with her, he never mentioned Jack Wall or received telephone calls or correspondence from him.

In 1977, the Testator began showing signs of illness. Records produced by appellant showed that doctors at Martinsburg, W. Virginia V.A. Hospital diagnosed the Testator as suffering from numerous physical problems, most notably heart and liver disease. The Testator was a "heavy drinker." He was discharged from the hospital in December of 1977, only to return in February of 1978. At this time the diagnosis was similar: arteriosclerotic heart disease with congestive heart failure. There was an additional diagnosis of cerebral sclerotic confusion. The Testator remained in the hospital through April. Despite contrary indications in the hospital records, appellee denied that she told hospital personnel that she would welcome the Testator home if he would "act less confused...." She also denied saying that the Testator had taken to roaming around outside at night and eating to the point of nausea. During this hospital stay, the Testator granted appellee a power of attorney because, according to appellee, he was too lazy to take care of his own affairs. Upon discharge, in April, doctors placed the Testator on medication, including Elavil, a mood elevator. Appellee testified that the Testator did not complain of dizziness, drowsiness or forgetfulness as a result of the medication.

The Testator was admitted to Howard County General Hospital in June of 1978. Hospital records noted that he was oriented to person and place, knew the month and year, and the president's name. The intake physician noted the "impression" that the Testator was suffering from congestive heart failure, arteriosclerotic heart disease and senile dementia, a progressive brain disorder. He was discharged within three days.

Jean C. Steves, a Howard County community health nurse, testified that as part of her work with Home Health Services and geriatric evaluation, she was assigned to the Testator. She began visiting him at appellee's home in July of 1978. From July through December of 1978, she saw him one to two times a week for 45 minutes to an hour each time. During the visits she would take his blood pressure and review his vital signs and medication routine. She would also test his mental orientation, alertness and awareness, by questioning him as to time, place and current events, and through general conversations.

She described the Testator as a nice, gracious man with a fine sense of humor who was very content at home. He did not appear confused to her. In fact because she concluded he was stable, visits were terminated on December 31, 1978. Mrs. Steves admitted, however, that there was a marked change in his mental alertness and orientation during the last two weeks in December of 1978, when he became somewhat confused. His physical condition also deteriorated and at the end of December, she called his doctor for consultation.

Mrs. Donna Rawlings, a lay minister, testified that she visited Mrs. Schnell periodically from 1977 to 1981. During her visits she became better acquainted with the Testator. She testified that although his physical condition deteriorated, he remained mentally cogent and intelligent.

Robin Palmer Horton, a neighbor of the Heller's, testified that she knew the Testator and the Heller family through her friendship with appellee's daughter, Lore Scott-Smith. She described the Testator as a likeable, friendly person. According to Mrs. Horton, in early December, 1978, in response to Testator's request, she visited him. At that time he told her that he wished to make a will, and requested that Mrs. Horton, a legal secretary, ask one of the attorneys for whom she worked to prepare one for him. He told her the persons he wished to be named and the amounts he wished to leave them. Appellee was not present during these discussions. Mrs. Horton took notes and forwarded them to Mr. Rollins, an attorney in her office. Based on her notes, Mr. Rollins dictated a will on tape and Mrs. Horton transcribed it. The notes were then destroyed and the tape erased. On December 7, 1978, after the will was completed, Mrs. Horton took the completed will to the Testator's home. Previously she had read it to him over the telephone. At the house the Testator read the will and told Mrs. Horton that it was what he wanted. He then signed the original and one copy in her presence and in the presence of Mrs. Horton's mother, Ina Palmer. Mrs. Horton and Ina Palmer were attesting witnesses to both documents. Appellee was not present in the room at the time the will was executed. In court, Mrs. Horton identified a copy of the will as that which she witnessed on December 7th. She testified that on that day the Testator was "perfectly normal" and as alert as any other day. She also stated that no one was present suggesting what the will should contain.

Mary Grimes, the Register of Wills for Howard County, brought to court and identified an original and certified copy of the December 7th will as the Last Will and Testament of Frank J. Wall. The court admitted the certified copy into evidence.

On December 28, 1978, shortly after the Testator executed his will, he entered Howard County General Hospital once more. According to appellee, his health had taken a "sharp downward course." Hospital records indicated he was suffering primarily from heart failure. He was also diagnosed as having "Depressive Syndrome." Hospital personnel noted that the Testator was unreasonable, uncooperative, hostile and belligerent during his stay, with poor recollection, disorientation and slow cerebral reaction. Regarding this behavior, appellee explained that Testator was an independent man who did not like hospitals and that it confused him to wake up in a hospital after being at home. The Testator was discharged on January 9, 1979, only to be readmitted on February 21, 1979. Hospital records noted that, besides congestive heart failure, Testator was suffering from chronic brain syndrome. Appellee denied knowledge of any of the diagnoses regarding the Testator's mental condition. Thereafter, the Testator lived in and out of institutions for the remainder of his life. When able, he conducted his own affairs.

Appellant testified that he had a close, loving relationship with the Testator and that he had...