Tyson v. Tyson

37 Md. 567, 1873 Md. LEXIS 28

• Court: Court of Appeals of Maryland
• Decided: February 22, 1873
• Status: Published

Opinions

Robinson, J.,

delivered the opinion of the Court.

■ Isaac Tyson, Jr., died on thé 23d November, 1861,and on the 29th of the same month, his will, bearing date the 7th of January, 1860, and three codicils attached thereto, dated respectively April 12th, 1860, January 15th, 1861, and May 9th, 1861, were .admitted to probate in the Orphans’ Court of Baltimore city.

On the 5th of June, 1871, nearly ten. years afterwards, the appellants, infant grandchildren of the testator, and children of his son, Isaac Tyson, 3rd, filed a petition in said Orphans’ Court, alleging among other things, that the codicils of April 12th, 1860, and January 15th, 1861, were procured bj fraud and undue influence practised upon the testator by his two sons, James W. and Jesse Tyson, the appellees, and prayed that the following issues be sent to the Superior Court of Baltimore city for trial :

1st. Whether said codicils were executed by said Isaac Tyson, Jr., when he was of sound and diposing mind, and capable of executing a valid deed or contract?

2d. Whether they were executed under the influence of suggestions, importunities, or misrepresentations, when his mind from its diseased or enfeebled state was unable to resist the same ?

3d. Whether they were procured by undue influence, fraudulent devices, importunities and deceits, practised upon the testator, which under the circumstances did not leave him free in the disposition of his estate?

4th. Whether at any time subsequent to the execution of said codicils, the testator was desirous of altering the same, and was prevented therefrom by management, fraud, and undue influence or importunities ?

At the trial below, the Court, upon the request of the defendants, instructed the jury that the plaintiffs had offered no evidence to warrant them in finding any of the issues in their favor, to the granting of which, and to the rejection of the several prayers offered by the plaintiffs, they excepted.

We do not. propose to review the many cases in which the question as to the legal sufficiency of evidence has been considered by this Court.

It is sufficient to say, they all hold the rule of law to be, that whenever the evidence offered is of such a character that no rational mind could infer the fact sought to be established by it, it is the duty of the Court, upon application, to instruct the jury, there is no evidence before them legally sufficient to warrant their finding the fact so attempted to be proved. Davis vs. Davis, 7 H. & J., 39; Cole vs. Hebb, 7 G. & J., 20; Harbeck vs. Hill, Ex’r. of Sewell, October Term, 1868, unreported; Clark vs. Dederick, 31 Md., 148.

The question then in this case, is whether, assuming all the evidence offered by the plaintiffs to be true, and adding thereto every inference which may be fairly and legitimately drawn therefrom, it was sufficient to warrant the jury, in the exercise of a reasonable intelligence to find any of the issues in favor of the plaintiffs? These issues involved testamentary capacity, fraud and undue influence.

As to the first, “the written law of this State, furnishes the rule, by which the capacity of a testator is to be measured.; and the inquiry must always be whether, at the time of executing or acknowledging the will and testament, he was capable of executing a valid deed or contract?” Davis vs. Calvert, 5 G. & J., 300; Code, Art. 93, sect. 300.

In regard to undue influence, it is equally well settled, that in order-to invalidate a will on this ground, it must he siich as deprives the testator of his free agency and subordinates his will 1o that of another, thus making the testamentary act not the will of the testator, hut that of the person exercising the dominion or control over him. Davis vs. Calvert, 5 G. & J., 302; Witman and wife vs. Goodhand, 26 Md., 95; Lovett vs. Lovett, 1 Fos. & Fin., 581; Earl of Sefton vs. Hopwood, 1 Fos. & Fin., 578; Stulz vs. Schaeffle, 18 E. L. and Eq. 576; Williams vs. Goode, 1 Hagg., 577, 3 Eng. Eccl., Rep., 254.

To sustain the issues then on the part of the caveators, it was incumbent upon them to offer reasonable evidence to show, that the testator was not of a sound and disposing mind and capable of executing a valid deed or contract at the time of the execution of the codicils of the 12th of April, 1860, and the 15th of January, 1861; or that they were executed by him against his will, in obedience to a dominion or control exercised over him, and which he was unable to resist.

The doctrine of confidential relations adopted in Courts of Equity in regard to gifts and contracts inter vivos, cannot be applied hero. It has been extended, it is true, in some States to wills, where parties stood in the relation of guardian and ward, client and attorney, and in such, the burden of proof has been cast upon the legatee or devisee' to show that the testamentary act was free from undue influence or restraint. On the other hand, however, in the late case of Parfitt vs. Lawless, (21 Weekly Reporter, 200) in the Probate Court of England before Lord Penzance, Piggott, B., and Brett, J,, this doctrine was held not to apply to wills, for two reasons:

1st. Because in cases of gifts or contracts inter vivos, the party benefited takes part in the transaction and whether he unduly urges his influence or not, in calling upon him to explain the part he took, and the circumstances under which the gift or contract was made, the Court is requiring him to make an explanation within his knowledge, but in the ease of a will, the legatee or devisee may have no knowledge of the act, and to cast upon him the burden of. showing how or under what circumstances the will was made, would he in most eases to cast upon him a duty he could not possibly discharge.

Secondly. Because the influence which is undue in cases of gifts “ inter vivos,” is very different from that which is required to set aside a will. In the former the natural, influence which such relations as those in question involve, is considered undue, provided it is exerted to obtain a benefit for themselves, whefeas in the ease of a will the influence which the law condem ns as unlawful, must he such as amounts to force and coercion, destroying the free agency of the testator.

But whether the doctrine of confidential relations applies to wills executed by parties standing in the relation of guardian and ward, client and attorney is a question not necessary to he decided here, for we think it is clear both upon principle and authority, it does not apply to a devise or bequest by a parent to a child.

We are of opinion therefore, the burden of proof both in regard to want of testamentary capacity and to the exercise of undue influence was upon the caveators.

If so, let us see whether there is any evidence, either upon the facé of the codicils, themselves, or the circumstances surrounding the execution of the same, the value and extent of the estate of the testator, the relative situation of the devisees and the testator, and the terms upon which he stood to them, from which a jury, in the exercise of a reasonable intelligence, could have found any of the issues in favor of the plaintiffs.

We find by the will of January, 1860, the testator bequeaths to each of bis three sons, Richard, James and Jesse, the sum of $25,000, and a like sum in trust for his son Isaac, the father of the plaintiffs, the income thereof to be paid to him for life, and upon his death, the whole sum to go to his children.

The residuum of his estate, he divides into five equal parts, and directs that Richard, James and Jesse, shall receive absolutely one half part of the equal share thus set apart for each, and the remaining half to be held in trust for them under certain limitations therein prescribed. The whole fifth share to Isaac, he directs to be held in .trust, the income thereof to be paid to him during life, and upon his death to go to his children, subject to an annuity of $1,200 to be paid to his wife during- her widowhood. This will is conceded to be in all respects a valid testamentary paper.

By the codicil of April 12th, 1860, he revokes so much of his will as provides for the payment of the whole income arising from the one-fifth equal share devised in trust for Isaac, and in lieu thereof directs the trustees to pay to him only so much thereof, as they may in their judgment u deem proper in view of all the circumstances.” He also revokes the provision in regard to the payment of an annuity of $1,200 to his widow, and directs in lieu thereof, they shall pay to her only so much as they may think proper, the excess of income over and above what shall be paid to Isaac, to be invested for his children.

By the codicil of January 15th, 1801, the provisions both in the will of January 7th, and the codicil of April 12th in favor of Isaac and his family, are revoked, and the testator bequeaths to his executors in trust, the sum of fifty thousand dollars, the income arising therefrom to be applied by them in their discretion to the maintenance of Isaac and his family and the education of his children. He then adds:

“In the bequest hero made by me, I have had regard to an estimate, according to my best judgment, of what my estate will probably authorize to be paid, having a due regard to the other members of my family. But inasmuch as it may so happen that such a division would not accomplish my wishes in this connection, and whereas my executors are fully informed of my will in this respect, I hereby authorize them to diminish, at their pleasure, the above sum of fifty thousand dollars during the life time of the said Isaac Tyson, 3d, so as not to reduce it below twenty-five thousand dollars,” &c.

In addition to the will and codicils thus offered in evidence by the caveators, they proved by G-. W. Norris, that for some years before his death, the testator suffered from palsy, was in a feeble state of health, was disposed to take a gloomy view of the value of his estate, and assigned as a reason, that he feared the discovery of chrome in Europe would impair the value of his interest in chrome land, and expressed an apprehension he might not be able to provide sufficiently for his family. About six years before his death, noticed a tendency to fall asleep during conversation on matters of importance to him, but thought “at that time his mind was sound, and as shretvd a business man as he ever knew.” Talked with witness in 1859 about making his will, and said “that he thought such of his children as knew how to take care of their property, he would leave them their part free, but that the others he should leave in trust, and that nothing could induce him to make any other difference between his children ; did not think a parent had any right to make any other distribution than this, between his children.”

He was the most affectionate of parents — spoke of his affection for Isaac’s children, and seemed to be more interested in them on account of their father’s habits which were known to him. at that time.

They also proved by Fanny H. Tyson, mother of the plaintiffs that she was married to Isaac in 1854; went to Rosemont, Virginia, to live ; left there because her husband was sent to sea; that the testator expressed doubts as to the propriety of Isaac’s going to sea, spoke of his feeble health, that it hung on such a thread that he did not know whether he should ever see him again. He referred to the misunderstanding between witness and the appellees, and how much he regretted it; .and spoke of his devotion to the children of witness; that he felt the same towards us as to his other children and grandchildren.

That in December 1859, she came to Baltimore to live, and soon afterwards all friendly relations between h.er and her husband’s family except the testator were interrupted, growing out of certain reports set afloat by a person boarding at the same house with witness. That she never visited the testator’s house after April 1860, and from that time received but one visit from him, during which, he expressed affection for witness, solicitude for Isaac and love for the children. Said he was sorry “he had seen so little of us; that he felt near and dear to us and especially to Isaa.c.” On leaving, told her he would prefer her saying nothiug about his visit to his sons or his wife.

That after the death of the testator, friendly relations with the appellees were renewed, they were kind, affectionate and generous in their manner. They alluded to the causes which had interrupted their friendly intercourse, and said they did not believe the stories about witness. Made her handsome presents, and allowed them, as she understood from her husband, between $7,000 and $9,000 a year.

They also proved by Doctor Gittings that he was called to attend the testator at his farm Olney, in Harford County, in the summer of 1861, and found him suffering from an attack of cholera morbus. His general health was feeble, seemed to be affected with softening of the posterior part of the brain, which affected his power of control over his muscles to a marked degree; trembled and had great difficulty of articulation. Visited him as many as thirty times, but saw nothing in his conversation with testator which induced witness to suppose that his mind was impaired in such a way as to render him {incompetent to make a will. The effect of his disease on the nerves and muscles need not have affected his mental powers, and with his then knowledge of the testator, would have attested his will.

They also proved, the testator died possessed of a large estate, consisting of lands, mines, mining privileges and personal property valued at a million of dollars.

In support of the allegations of fraud and undue influence, they offered in addition to the aforegoing facts, evidence to show the intimate and confidential relations existing between the testator and the appellees — that they were engaged with him in business, had opportunities of knowing the value and condition of his estate, and carried on the correspondence in regard to Isaac and his family.

This is the substance of the evidence on the part of the plaintiffs in support of the issues before the jury. We cannot fail to observe, that not a single witness is produced who questions in any manner the testamentary capacity of the testator. On the contrary, notwithstanding the feeble condition of his health, his tendency to fall asleep during conversation on matters of importance, his disposition to take a gloomy view of the value of his property, Mr. Norris thought his mind was sound, and that he was one of the shrewdest business men he ever„ knew. And Doctor (Grittings, who never saw him until the summer of 1861, more than six months after the execution of the codicil of January 15th, was of opinion that he was competent even at that time to make a will, and would have attested the same. Not only this, there is not a single act of the testator during his whole life relied on as showing him to be of unsound mind, except the execution of the two codicils in question.

In regard to the allegation, of fraud and undue influence, there is not a particle of evidence to show the appellees ever advised, persuaded or even spolce to the testator about his will, or had any hand whatever in the execution of these codicils, much less that they were executed by him against his own will, in pursuance of a dominion exercised over him by these appellees, such as he was unable to resist.

But the argument is, that the evidence thus offered, shows the testator intended to make an equal distribution of his property among his children, and feared lest a bequest of fifty thousand dollars in trust for Isaac, might defeat that purpose; and it is contended that the evidence was sufficient to prove one or the other of the two following propositions:

1st. That the testator did not possess a rational knowledge of the amount and condition of his estate, and was destitute of the first element of capacity to deal with it by contract or will.

'2d. That if he possessed capacity to understand and estimate his estate, he was deceived or imposed upon as to its value by some one.

This argument, however, cannot apply to the codicil of April 12th, for it did not aifect the equality of distribution made by the will, but only authorized the trustees to withhold from Isaac during his life so much of the income of his fifth part as they might deem proper, the excess, if any, to be invested for his children, the caveators. There is no doubt the testator at this time intended to make an equal distribution of his property among his children, as he had said to Mr. Norris in the year previous, he should do, the only discrimination being that those who “knew how to take care of it he would leave free, and those who did not ho would leave in trust.” This intention is declared in express terms, both bf the will and codicil of April 12th.

But it is equally clear, that at the time of the execution of the codicil of January 15th, 1861, this purpose no longer existed. We may not be able to state with certainty all the causes which led to this change in regard to Isaac and ¡lis family. It is evident, however, from the codicil of April 12th, that some intervening circumstances had increased the testator’s distrust of the fitness of Isaac and his wife to use properly the income provided for them by the will of January 7th. The habits of Isaac subsequent to this time, tended not only to increase this distrust, but taken in connection with the relations existing between his wife and the family of the testator, furnish, we think, a reasonable explanation of the causes operating upon the mind of the testator at the time of the execution of the codicil of January 15th, and which induced him to make a more limited provision for Isaac and his family.

As far back as 1854 Isaac was intemperate in his habits, although as late as 1859, his father, says Mr. Norris, still had hopes of his reformation. After his marriage, for the purpose of removing him from the temptations of a city life, his father purchased a valuable farm in Virginia, and there he went to live. His old habits, however, still clung to him; he soon became involved in debt, and we find him appealing to his father, through the appellees, for money to relieve him from his embarrassments. It finally became necessary to break up the home at Rosemont, and with the hope still of reformation, Isaac in May, 1859, w is induced to go to sea. In May, 1860, he returned and took a house in Park street, but he soon fell again into his old habits of dissipation, and in the fall of that year he was obliged to give up that house. All efforts towards reclaiming him had thus proved unavailing. In addition to this, the friendly relations between his wife and his father’s family, bxcept the testator himself, had ceased as far back as the spring of 1860 ; and after that time she never visited the house of the testator. It was under these circumstances he went to Mr. Latrobe, his friend and attorney, for the purpose of having the codicil of January 15th prepared, and stated as reasons for revoking the provisions in the will, and codicil of Aprjl 12th, 1860, that Isaac’s habits were such as he could not rely upon, and that the income from $50,000 was sufficient for the support of himself and family. There is nothing upon the lace of the codicil itself, taken in connection with all the facts in the record,-to show the testator intended at that time to make an equal distribution of his property, and feared lest the bequest therein might affect that purpose. He nowhere says in this codicil that the sum so bequeathed is an equal share of his estate. If his purpose was to make Isaac equal with the other children, there was no necessity for the execution of the codicil because this purpose had been effected by the will and codicil of April 12th. He does say that in making the bequest he has had regard to an estimate of what his estate would probably authorize to be paid, having a due regard to the other members of Ms family. Not, however, that he intended by that estimate to put the bequest thus made on equality with the shares devised in his will to the other members of his family. The causes which led to the execution of this codicil, and to a more limited and unequal provision for Isaac and his family, we have heretofore considered. That the testator had the power to make this discrimination no one will deny, and whether it was just to exercise it against the caveators, was a question for him and not for us to determine.

Having bequeathed fifty thousand dollars in trust for Isaac, upon an estimate of the value of his' property at that time, and for fear that this sum might affect the portions intended for the other members of his family, he authorizes his executors upon contingencies not expressed, but known as he says to them, to reduce the said bequest to a sum not less than twenty-five thousand dollars. What was the contingency upon the happening of which the executors were authorized to exercise this power, it is impossible for us to say. It was suggested in argument that this codicil was executed on the verge of the late civil war. The letters written by the testator to his European correspondents about the time of its execution, show how fully he shared the fears and anxieties of all thoughtful men in regard to the then impending political troubles. In the event of war, no human sagacity could foresee its effects upon the value of property, and especially upon mines and mining privileges, in this a border State. But whether or not this was the contingency contemplated by the testator, the caveators have entirely failed to show he did not possess a rational knowledge of the amount and condition of his estate, and was therefore incompetent to deal with it by contract or will. On the contrary, they prove he was of sound inind, and a man of uncommon business sagacity.

In regard to fraud and undue influence, practised upon the testator, we have not been able to find any reasonable evidence in support of these allegations. The appellees, it is true, were partners in business with the testator, and enjoyed to the fullest extent his confidence, and to which the record shows they were justly entitled. They knew, no douht also, the value and condition of his estate, but there is no proof to show they ever interfered in any manner, either by advice, persuasion or importunity in the making of his will. Nor does it appear that their relations with the testator had any influence with him in the disposition of his property. His other children, Richard and Hannah, receive an equal share with the appellees under the will, and Isaac is the only one against whom a discrimination is made. In all the letters written by these appellees, in the years of 1858 and 1859, we have not been able to find a single unkind expression towards Isaac; they are full of affection, sympathy, advice, and hope of his reformation. And when the father is gone, and all are stricken with a common grief, the fact that the appellees are anxious to forget the past, and all causes which had interrupted friendly family relations with the mother of the caveators — that instead of $3,000, they in a spirit of generous affection allowed their brother Isaac and his family $7,000 to $9,000, cannot surely he construed into an evidence of an unlawful participation in the will of their father, through which Isaac and his family were denied an equal share of the estate.

So, we say, admitting all the evidence offered on the part of the caveators to be true, and adding thereto every legitimate inference, it was not sufficient to warrant the jury, in the exercise of a reasonable intelligence, in finding any of the issues in favor of the plaintiff's. Not only is there an entire failure of evidence on their part, but the proof on the part of the defendants is perfectly conclusive on all the issues.

The codicils were prepared, says Mr. Latrobe, under the direct instructions of the testator, who was alone with him during the preparation of the draft — they were read to him, amendments made at his suggestion until they were satisfactory to him and then executed. The witness had no more doubt of the mental competency of the testator to make the codicils in question, than he had of his own mental competency. The testator had been in the habit of coming to the office of witness for a number of years, and continued as late as May, 1861. He bilked about politics, condition oí' the country, the Baltimore and Ohio Railroad Company and other topics of conversation, discussing all subjects with great intelligence. His health was feeble, but his mind-clear.

Mr. G-alloway Cheston had known him for many years ; had repeated interviews with him as late as May, 1861; saw him in his counting room in April. 1861, his mind was perfectly clear, he was as rational as he ever had been, and even in business matters in which his sons were equally interested, his was the master mind. He was eminently a sagacious man, whose opinion he would have taken upon any monetary question.

Mr. Francis T. King says, he was an intimate friend of the testator, and their intercourse was frequent and familiar. So late as the spring of 1861, in conversing about matters of business, investment of money, purchase of property, and about making his will, he never discovered the least impairment of his mind. He was a man of culture, of reading, of determination, of great self-government, and thought and acted on all questions for himself. These characteristics remained with him to the end of his life.

Then they prove by Thomas W. Webster that he was clerk to the testator from early in 1861 to the time of his death; that the testator was in the habit of coming to the office regularly until the latter part of June, 1861, when he went into the country ; that he always looked into what was going on ; the correspondence of the firm was carried on under his eye, he dictated to one of his sons or his clerk, it was then read to him and corrected by him, and when approved it was copied and handed to him to sign. His mind was perfectly unimpaired. Other witnesses corroborate this testimony. In such a case as this, whatever ground there may have been for ingenious argument and eloquent comment of counsel, there was no evidence legally sufficient, to warrant the jury in finding any of the issues in favor of the plaintiffs.

(Decided 22nd February, 1873.)

Entertaining these views it is unnecessary to consider whether the subsequent codicil of May 9th, 1861, and which- was not caveated, operated as an alteration, adoption and republication of the will of January 9th, 1860, and of the codicils of April 12th, 1860, and January 15th, 1861.

Rulings affirmed.