Webster v. Larmore

• Decision Date: 09 February 1973
• Docket Number: No. 158,158
• Citation: 268 Md. 153,299 A.2d 814
• Parties: Walter D. WEBSTER, Personal Representative of the Estate of Julia Eva Pollitt v. Bertha LARMORE et al. Bertha LARMORE et al. v. Walter D. WEBSTER, Personal Representative of the Estate of Julia Eva Pollitt.
• Court: Maryland Court of Appeals

Page 153

268 Md. 153

299 A.2d 814

Walter D. WEBSTER, Personal Representative of the Estate of Julia Eva Pollitt v. Bertha LARMORE et al.

Bertha LARMORE et al. v. Walter D. WEBSTER, Personal Representative of the Estate of

Julia Eva Pollitt.

No. 158.

Court of Appeals of Maryland.

Feb. 9, 1973.

Victor H. Laws, Salisbury (Long, Laws, Hughes & Bahen, Salisbury, on the brief), for Walter D. Webster, etc.

John B. Robins, Salisbury (Robins, Robins & Johnson, Salisbury, on the brief), for Bertha Larmore and others.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

SINGLEY, Judge.

This is an appeal by a personal representative from an adverse decision, determination, or ruling of a court of law in a caveat case to which issues had been sent from an orphans' court to be tried, Maryland Code (1957, 1968 Repl.Vol.) Art. 5, § 2; Syfer v. Dolby, 182 Md. 139, 152, 32 A.2d 529 (1943). Consolidated with it is a second appeal by the successful caveators from orders of the orphans' court authorizing the personal representative to pay, from the assets of the decedent's estate, the fees and expenses of counsel incurred in the defense of the caveat action and to be incurred in this appeal.

Julia Eva Pollitt (Julia) died on 4 November 1970 at Eastern Shore State Hospital, a State mental hospital, at Cambridge, Maryland. At the time of her death, Julia was 72 years of age. Although she had been married twice, once to John May of Princess Anne, whom she had divorced in about 1954, and then to Austin G. Brumley, whom she married in February, 1965, Julia had no children. She had been married to May for some two years. Brumley had lived with her less than a month, and she divorced him in June, 1966.

In November, 1964, prior to her marriage to Brumley, Julia had gone with him to the Salisbury office of Walter D. Webster, an attorney. There she gave Mr. Webster instructions regarding the preparation of a will, which was signed on 28 December 1964 at Julia's home in Salisbury in the presence of Mr. Webster, Mr. Webster's secretary and Brumley, who acted as witnesses. The original will was in Mr. Webster's custody at the time of Julia's death.

The value of Julia's gross estate was about $29,000.00. Under her will, Julia devised her Salisbury residence to her nephew, James M. Larmore; bequeathed $1,000.00 to her sister, Bertha Larmore; left bequests totalling $1,500.00 to friends; gave $500.00 to each of two churches, and bequeathed the residue of her estate to Brumley. In spite of the fact that she and Brumley were separated and later divorced and that Brumley had remarried, Julia never modified or expressly revoked her will.

Some time before Julia's will was offered for probate, the appellees, Bertha Larmore and Elmer M. Pollitt, Julia's sister and brother and only surviving next of kin, filed in the Orphans' Court for Wicomico County a petition and caveat to Julia's will on grounds of lack of mental capacity and undue influence.

The orphans' court regarded this as a request for judicial probate, Code (1957, 1969 Repl.Vol.) Art. 93, § 5-207(b). On 20 April 1971 it admitted the will to probate and appointed Mr. Webster, the executor named in the will, as personal representative of Julia's estate. Issues raising the questions of testamentary capacity and of undue influence were framed and transmitted to the Circuit Court for Wicomico County for trial before a jury.

After a three-day trial, the case wert to the jury on only the first issue:

'Was the alleged testatrix, Julia Eva Pollitt, of sound and disposing mind, capable of executing a valid deed or contract at the time the alleged Will dated December 28, 1964, was executed?'

The jury answered this question in the negative.

Mr. Webster, as caveatee, appealed from the verdict entered in favor of the caveators. ¹ Mrs. Larmore and her brother, as caveators, have appealed from an order of the orphans' court authorizing Mr. Webster to pay from funds of the estate an amount of $1,270.50 to his counsel, being the aggregate of fees and expenses incurred in the defense of the caveat action, as well as from an order authorizing payment from the estate of costs and expenses incurred in connection with this appeal. ² By agreement of counsel, these two appeals were consolidated.

Mr. Webster argues first, that the trial court erred in admitting testimony and evidence respecting Julia's mental condition and hospitalization at times remote from the date of execution of the will and second, that since this evidence should have been excluded, it was error to deny his motion for a directed verdict in his favor, made at the end of the caveators' case, and renewed at the end of the entire case, and alternatively, to deny his motion for judgment n. o. v.

Mrs. Larmore and her brother contend that the expense of an unsuccessful defense of the caveat action and of an appeal from an adverse verdict should not be borne by the estate.

The Admissibility of the Evidence

Mr. Webster maintains that the rule of our cases is that while evidence tending to prove competency may relate to periods both before and after the date when a will is executed, proof of incompetency must relate to the critical date when the will was made.

We restated the rule of the cases, speaking through Judge Horney, in Arbogast, Executor v. MacMillan, 221 Md. 516, 525, 158 A.2d 97, 102 (1960):

'It is true, of course, that evidence tending to prove competency in general may relate to the entire period of acquaintance of a witness with a testator both before and after the date of the making of a will. Jones v. Collins, 94 Md. 403, 411, 51 A. 398, 400 (1902); Harris v. Hipsley, 122 Md. 418, 435, 89 A. 852, 857 (1914). But evidence produced to show lack of testamentary capacity must relate to the mental condition of the testator at the time the will was executed.'

This is the logical consequence of the presumption of testamentary capacity, stated in the same opinion, 221 Md. at 523, 158 A.2d at 101:

'The law presumes that every man is sane and had capacity to make a valid will, and the burden of proving the contrary rests upon those who allege that he lacked mental capacity. Cronin v. Kimbel, 156 Md. 489, 494, 144 A. 698, 700 (1929); Smith v. Shuppner, 125 Md. 409, 417, 93 A. 514, 517 (1915). Morever, in the absence of proof of prior permanent insanity, it must be shown that the testator was of unsound mind at the time the will was executed in order to overcome the presumption of sanity. Acker v. Acker, 172 Md. 477, 192 A. 327 (1937); Gesell v. Baugher, 100 Md. 677, 60 A. 481 (1905).'

See also Waple v. Hall, 248 Md. 642, 657-658, 238 A.2d 544 (1968); Ingalls v. Trustees, 244 Md. 243, 260, 223 A.2d 778 (1966).

At the commencement of the trial of the case, there was an extended colloquy between the court and counsel out of the presence of the jury as regards the admissibility of evidence bearing on the alleged incompetence of a testator which related to events remote in time from the date when the will was executed. The trial judge finally concluded that the proper manner of dealing with the question was to rule on the admissibility of evidence as it was adduced, which he did, admitting it over the objection of the personal representative.

It would seem that the lower court found particularly persuasive Kelley v. Stanton, 141 Md. 380, 118 A. 863 (1922), a caveat case which held that it was not reversible error to admit in evidence the inquisition of a jury in an incompetency proceeding conducted 28 months after the testator had executed his will, which had resulted in an adjudication that he was of unsound mind. After considering the cases which had preceded and have succeeded Kelley, we conclude that the holding there must be confined to the peculiar posture of that case, which reversed, on other grounds, a verdict in favor of the caveators. Of particular interest is the court's conclusory comment, which appears at 141 Md. 397, 118 A. 869:

'The inquisition is also without sufficient probative force to show testamentary incapacity at the time the will was made, in the absence of any evidence tending to show that the mental condition of the testator existing at the date of its return extended back to the date of the execution of the will . . ..'

After the proceedings relating to the probate of the will had been introduced, the caveators called Dr. Earl M. Beardsley, a general practitioner, who testified that he had seen Julia as a patient 'every two or three months' commencing in the fall of 1962. Over objection, he was permitted to testify that on 13 April 1967, 28 months after she signed the will, Julia had been admitted to Peninsula General Hospital at a time when she was '. . . confused . . . disoriented . . . upset and agitated . . .' and that shortly thereafter, Julia was committed on the certificate of two physicians to Eastern Shore State Hospital, suffering from what had been diagnosed as chronic brain syndrome or cerebral arteriosclerosis.

In response to a question as to the duration of the disease, Dr. Beardsley said:

'I think it is only with difficulty that you-that you can-I don't think a person could actually state the onset of such a condition. However, I felt in Miss Pollitt's case that this had been developing since I had known her in 1962.'

On cross-examination, dr. Beardsley said that he had seen Julia on 29 January 1964, on 17 July 1964, on 6 March 1965 and on 23 march 1965. His testimony was that on 17 July, she complained of being 'tired and somewhat run-down' and that he had prescribed a sedative and an antacid, and that on 6 March, her complaint was a cold and cough, and he gave her cough syrup.

Dr. Beardsley admitted that his office notes relating to those visits disclosed nothing with respect to Julia's mental condition. In response to a question, be said that he did not fell 'qualified' to express an opinion as to Julia's mental capacity on 28 December 1964....