Will of Maynard, Matter of

• Decision Date: 04 October 1983
• Docket Number: No. 8210SC839,8210SC839
• Citation: 307 S.E.2d 416,64 N.C.App. 211
• Parties: In the Matter of the WILL OF Edna Earl MAYNARD, deceased.
• Court: North Carolina Court of Appeals

Page 416

307 S.E.2d 416

64 N.C.App. 211

In the Matter of the WILL OF Edna Earl MAYNARD, deceased.

No. 8210SC839.

Court of Appeals of North Carolina.

Oct. 4, 1983.

Hatch, Little, Bunn, Jones, Few & Berry by David H. Permar, Raleigh, for propounder appellant Harold Berry.

David R. Cockman, Raleigh, for propounder appellants Mildred M. Dawson, Edna M. Grubbs, and Walter Troy Maynard.

Ransdell, Ransdell & Cline by William G. Ransdell, Jr. and James E. Cline, Raleigh, for caveator appellee Ruby Maynard.

Parker, Sink, Powers, Sink & Potter by Henry H. Sink, Raleigh, for caveator appellee Raymond Maynard.

JOHNSON, Judge.

The issues to be decided by this appeal are (1) whether the court erred in denying the motion to set aside the verdict and for a new trial on the grounds that (a) the prior adjudication of Mrs. Maynard's incompetency raised a conclusive presumption that the testatrix lacked testamentary capacity on 13 November 1979, (b) that the evidence showed the testatrix to be laboring under an insane delusion, and (c) because the propounders were unfairly surprised at trial; (2) whether the court's instructions to the jury properly declared and explained the law arising on the evidence and correctly charged the jury on the issues of testamentary capacity and undue influence; and (3) whether the court erred in admitting into evidence certain testimony and exhibits which were not listed in the pretrial order. For the reasons set forth below, we find no error in the rulings of the trial court.

The key factual issues at trial were whether the testatrix had sufficient mental capacity on 13 November 1979 to make and execute a valid will, whether Mrs. Maynard changed her will because she suffered under the insane delusion that her son Troy was trying to harm her, or because she was of the opinion that Troy and her daughter Edna had already received their portion of her estate; and whether the making and execution of the 1979 will was procured through the undue influence Ruby Maynard exerted over her mother, Edna Earl Maynard in the months just preceding November, 1979.

The evidence presented at trial may be summarized as follows: The testatrix, Edna Earl Maynard, was born in 1903. Her husband, Walter A. Maynard, died intestate in 1936, leaving as the bulk of his estate approximately 80 acres of land in Cary, North Carolina. Mrs. Maynard was 32 years of age at the time of her husband's death and had little formal education. Following the death of her husband in 1936, Attorney William T. Hatch of Raleigh became Mrs. Maynard's legal advisor, and remained in that capacity for approximately 40 years. Mrs. Maynard and her husband had five children, all of whom survived Mrs. Maynard.

In 1954, the testatrix' son Troy instituted a special proceeding to have his portion of his intestate father's estate allotted to him by setting off his mother's dower right. The other children of the testatrix borrowed money to pay Troy for his share of the property. Troy received somewhat less than $2,000, which he testified did not represent his share of his mother's estate. In 1955 the other children deeded their interest in the property to the testatrix.

Edna M. Grubbs testified that from the time she was married in 1945 she regularly visited her mother, that she looked after her mother's business affairs, and wrote all of her mother's checks up until about 1976 when William Hatch began to act under a power of attorney for Mrs. Maynard. In 1970, the testatrix gave by deed 2.7 acres of land to her grandson Thomas Grubbs, the son of Edna M. Grubbs. Thomas was supposed to live on this land near the testatrix; however, shortly thereafter he sold it to the Masons for a temple site. Mrs. Grubbs testified that this gift was made against her advice, that it was not to represent her share of her mother's estate and that Edna Maynard had never stated that the conveyance to Thomas Grubbs was to represent Mrs. Grubbs' share of the estate.

The testatrix' physical health had been deteriorating for many years before her death. She had emphysema, a heart condition, hypertension, and arteriosclerosis. She was hospitalized for a period in 1976 and 1977.

On 28 April 1977, Mrs. Maynard executed a will in the office of William Hatch, who had drafted the instrument for her. On that same date, testatrix executed a contract with her son Troy. The contract was also drafted by Attorney Hatch, and it provided that Troy and his wife Marlene would care for the testatrix for the rest of her life, in exchange for which the testatrix "has this day formally executed her last will and testament in which she devised and bequeathed to the parties of the first part [Troy and wife] her home residence, including house and 2.2 acres of land located at 1140 East Maynard Road, Cary, North Carolina, together with household furnishings ..." At about this time, Troy and his wife Marlene moved next door to Mrs. Maynard, and they helped look after her until they moved away.

The 1977 will offered for probate by the propounders, however, had no provision therein for Troy and his wife to have the house and lot. Rather, it provided that the five children would share their mother's estate equally. On cross-examination, Troy admitted having signed the contract to assure that he "might get a little something for going out there" (to live by his mother), but denied being surprised by the fact that the 1977 will failed to contain the provision called for by the contract executed that same day.

The 1977 will consisted of four pages, the first two setting out the dispositive provisions and the fourth page being the executed signature page. The third page of this will was a blank signature page dated 1978. The propounders presented testimony by John McLain, an attorney in the Hatch firm, and Wendy Hicks, a legal secretary, both of whom were attesting witnesses, that the 1977 will was duly and properly executed by Mrs. Maynard. Thereafter, the caveators were allowed to present the testimony of James Durham, an examiner of questioned documents, despite the fact that Durham was not listed as a witness in the pretrial order. Over the propounders' objection Durham testified that the fourth page (executed signature page) of the 1977 will was not typed at the same time, nor on the same typewriter as were pages one, two and three.

There was considerable strife between testatrix' children Ruby and Raymond on one side and her other children, Troy, Edna and Mildred on the other. At various times, different children would help care for testatrix. At times, relations were also strained between testatrix and her children, with long intervals of noncommunication between the various family members. Edna Grubbs testified that between 1972 and 1976, Ruby did not visit her mother.

Mrs. Grubbs testified further that in late 1978 or early 1979, a dispute developed between Raymond Maynard and Mrs. Maynard's attorney-in-fact, William Hatch, over sums of money that Raymond sought from his mother and that as a result, Mrs. Maynard revoked Hatch's power of attorney. Further, that because she was concerned that her mother was easily swayed and would dissipate her funds, Edna Grubbs filed a petition before the Clerk of Wake County on 2 February 1979, seeking to have the testatrix declared incompetent to handle her affairs and seeking the appointment of a guardian.

The guardianship petition detailed Mrs. Maynard's physical and mental weaknesses. Pursuant to this petition, a hearing was held on 21 February 1979, and those party to and present at the hearing included each of the five children who were later parties to the caveat proceedings that are the basis of this appeal. At the hearing, the jury found Mrs. Maynard to be incompetent. A judgment was entered, stating that in consequence of "hardening of the arteries, congestive heart failure, emphysema, and high blood pressure and a mental condition connected therewith," Mrs. Maynard was "incompetent for want of understanding to manage her affairs by reason of mental and physical weaknesses on account of said diseases," and S. Johnson Howard was appointed as guardian for her.

Attorney Howard testified for the propounders that during his tenure as guardian, Mrs. Maynard was too weak and feebleminded to take care of herself, that she was often confused and that she was easily swayed to agree with whomever she had last spoken with. He also noted that at times Mrs. Maynard was pleased that her son Troy was taking care of her, but that at other times she would demand that Troy be moved out of the house. Often at these times, she would accuse Troy of attempting to harm her, which Howard testified that he knew from his own knowledge to be patently untrue.

The propounders offered further evidence tending to show that their mother's mental condition did not improve prior to her death, that she remained easily confused and easily swayed and that, in the opinion of the various witnesses, Mrs. Maynard did not have sufficient mental capacity to execute a will during the period of time following the incompetency proceeding in February of 1979 and before her death in 1981.

Attorney Howard shared office space with Attorney David Cockman, who represented Mrs. Grubbs as petitioner in the competency proceeding, and who represents Mrs. Grubbs and Troy and Mildred, propounders of the 1977 will, in the present action. Ruby and Raymond, caveators, retained Attorney Brian Howell to represent them insofar as their mother's interests were concerned. They determined that Howard should not serve as guardian for the testatrix in view of Howard's relationship with David Cockman. Subsequently, Howard did resign as guardian and Attorney Larkin Kirkman was appointed successor guardian on 9 October 1979.

Larkin Kirkman's testimony concerning Mrs. Maynard's expressions of fear of her son Troy corroborated that of Mr. Howard. Kirkman termed this fear an "irrational fixation" and...