McCoy v. Fluharty

Bond, C. J., delivered the opinion of the Court. The caveatees, now appellants, defending an attack upon the validity of a will, appeal from rulings of the circuit court in a proceeding upon issues of fact sent from the orphans’' court. The jury sworn to' try the issues found that the will had been procured by the exercise of undue influence and fraud, and the ruling now principally contested is one that evidence legally sufficient to support the finding was produced. Louis M. Carr, of Dorchester County, executed on April 28th, 1928, a will in which he devised and bequeathed the residue of his estate, after payment of his debts, and funeral and administration expenses, to an organization known as the Board of Church Extension and Home Missions of the Church of God, of Anderson, Indiana. Edward D. McCoy was appointed executor, with a request that he employ Mr. A. Stengle Marine as counsel, and there was expressed a *619 desire and request that indulgence for a reasonable time be extended to McCoy for repayment of an indebtedness due en a contract of sale, and of money advanced for him and at his request. The testator died in June of 1929, and the will was duly probated on’June 11th, 1929. On February 6th, 1931, a petition and caveat were filed by the appellee, a niece of the decedent, resident in the -State of Pennsylvania. All of the six objections usually advanced in support of caveats were advanced in this instance, but at the- trial one was abandoned by agreement o-f counsel; on three, including those on the mental capacity of the decedent, the- court directed verdicts or answers in favor of the will because there was no legally sufficient evidence to support contrary findings; and the jury were left to render verdicts on -only the two issues relating to- procurement of the will by undue influence and fraud upon the testator. The executor himself was the person charged with having exercised the undue influence and fraud, and he, with the documents in his possession, was the chief witness relied upon to prove the -charge. His answer to direct questions was- that he had not exerted any undue influence upon the testator, and that the testator was a man who could not be so influenced; and therefore- proof that the undue influence was nevertheless exerted, and did procure the will, is to be sought in circumstances testified to. Suspicion, if not proof, arises mainly from efforts made by McCoy to secure from the beneficiaries what he describes as recompense for care of the testator, or benefits which the testator intended him to have under an amended will which the testator was not able to- make. The testator was a man be-yond eighty years of age at the time of the transactions narrated in the evidence, and is described in the- caveator’s evidence as a vigorous, man, with weakening in the last year or two of his life, but with a strong will, and inclined to obstinacy, although open to persuasion. He was religious, and mention is made of another church or church causes or organizations to which he expressed some thought of giving his estate-, as an alternative to the gift to the beneficiary named in the will. He seems to *620 have had no relatives in the neighborhood in which he lived. He visited his niece in Pennsylvania two or three times a year in years past, and- sent her greeting cards and small gifts at times. He had not seen her since February of 1927. He lived during the last three years of his life mostly with McCoy and his wife, they giving him the care he needed. The relations in the household appear from the testimony to have been amicable, although the disciplined housekeeping of Mrs. McCoy was annoying to him at times. The testator left an estate of between $20,000 and $30,000. In August of 1925, two years before the execution of the will, the testator and McCoy had attended a camp meeting held by the Church Extension, under the direction of a Mr. Monk, and heard Monk outline to the congregation some needs for money for the organization’s work, and make an appeal to all for aid, and, at the conclusion of the meeting, Carr, according to McCoy, expressed a belief that the cause-was one to which he might well contribute. McCoy communicated this to Monk, and Monk sought out Carr, but failed to obtain from him a loan of $2,000, as he had hoped. McCoy, learning from Monk of his failure-, undertook to aid him, and shortly after, Monk was given by Carr a loan of $2,500, on what is termed a lifetime note or bond, the promise in which was to repay the amount ninety days after demand by Carr himself, in his lifetime. McCoy testified that his part in that transaction was only to remind Carr that he had been giving his money out in loans on which repayment was doubtful, and the loan now sought, in contrast, would be one to- responsible borrowers. Carr-, he states, concluded,, at first, to make the loan of $2,000, but finding that his bank balance was larger than he had supposed, he volunteered to-add $500. Some requirements insisted on by Carr were met by Monk by execution of the bond in Indiana, upon telegraphic instruction from Monk. There was at the time talk between Carr and Monk about Carr’s giving Monk’s organization a power of attorney which would put in the hands of the organization control of Carr’s estate after his death. The power was executed two months later, and was one- with little- *621 restraint placed upon the authority given. No use seems to have been made of it during Carr’s lifetime, however, and none after his death, of course, because it was not then operative as intended. McCoy, before the power had been executed, but, as he testifies, supposing that it had been executed at the time, began efforts to obtain assurance from the beneficiary of some payment to himself for care of Carr1. He asked at first $10,-000, thinking then that the estate would amount to $30,000 or $40,000, and Monk, in reply to a letter, not produced in evidence, telegraphed McCoy on November 1st, 1926, that the latter “would be protected in the matter mentioned.” The power was executed on November 26th, 1926. Early in the year 1928, it appears, McCoy was informed by lawyers among his relatives in New York, to whom he explained these transactions, that the power of attorney would not be effectual after Carr’s death. McCoy repeated this to Carr, and Carr cited an instance in which, as he thought, such a power of attorney had been effectual. But on that same day the will now attacked was executed. McCoy went with Carr to Mr. Marine’s office, and after some debate on the effectiveness, of a power of attorney, the will was prepared and executed. McCoy says that he did nothing to influence the making of the will, except that when the testator was undecided whether-to leave his estate to the Holiness Church, or Foreign Missions, or give it to Mr. Riggol, of the organization ultimately made the legatee, McCoy reminded Carr that he,(Carr) had always been a member of the church here, and. added something like, “I believe if I were you I would stick to them.” Carr’s talk about the church’s getting his money was voluntary with Carr, and what McCoy said did not make much difference to him anyhow. “Whatever he wanted to do you could not change him; you might as well try to change the wind.” McCoy received no benefit under the will prepared and executed, except such as might result from the request of the testator that a reasonable time be given for payment of the debts to the testator, and, in the latter part of the year *622 1928, he took up with Monk, for the legatee, the question of securing him in some compensation for care of the testator. Monk replied that McCoy ought to be protected and would lose nothing by what he was doing. In the early part of the succeeding year, 1929, the yéar of the testator’s death, a number of communications passed between McCoy and the legatee organization and officers. McCoy wrote on February 8th, 1929, saying that Carr had now been with him three years and had become a great care, expressed dissatisfaction, and desire of his family and himself for compensation from the legatee, and threatened to- put the testator from his house unless definite arrangements should be made. “You have already got,” he wrote, “twenty-five hundred dollars of his money that you would not have got if it had not been for me and the will would not stand in your favor if it had not been for me and he asked me several times, of late to- call for the twenty-five hundred, but I did not do it. And he wanted to change- his will to Holiness Church and I talked him out of it. And if he leaves my place I am sure it will all be changed.” A contract securing him $10,000 was suggested, and it was asked that the discussion and any arrangements .made be kept confidential. The legatee answered, expressing a desire to do- the right thing, but an inability to- act without knowing the amount of the estate. During the correspondence, Carr, with McCoy, went to Mr. Marine’s office to- change- the will, but Mr. Marine declined to- prepare a new will because of the testator’s mental condition then. That was on April 25th, 1929, and the testator died six weeks .later, on June 6th, 1929. After the death, and probate of the will, McCoy continued his efforts, and a form of contract between him and the legatee was prepared in July of 1929, but was never executed by the legatee. The object stated was to secure McCoy in benefits which he would have received if the will had been changed. Then McCoy hunted up the niece, wrote her and with Mr. Marine visited her at her home, and suggested her attacking the will, and making an agreement which would secure to McCoy and Mr. Marine parts of the estate which *623 they said had been promised them by the testator. At that time the niece declined to act. This we believe to be a fair summary of the facts which would find support in the evidence. And the question is whether they together afford ground for a finding that the testator, competent to make a will as he pleased, was when he made this will under the dominance of another, so that he did not express his free will and judgment. As is argued on behalf of the appellants, this court has many times pointed out that the will of a person possessed of sound mind and memory is not to be set aside on evidence tending1 to show only a possibility or suspicion of undue influence. Kennedy v. Dickey, 100 Md. 152, 164, 59 A. 661; Birchett v. Smith, 150 Md. 369, 379, 133 A. 117. “Here conjecture, or a suspicious circumstance, or even an influence or constraint, if not directly connected with the will in the sense of being its procuring cause, will not be sufficient. The will of a competent person cannot be nullified on the ground of undue influence, without affirmative evidence of sufficient probative force to carry to a mind the reasonable conviction of its existence and that it induced the action of the testator.”' Malone v. Malone, 148 Md. 200, 208, 129 A. 10, 13. “If we had merely to decide in this case whether there is legally sufficient evidence to admit of the inference that the caveatee persuaded his father to make the abatement in question in the shares of the caveators, we could have no' hesitation in rendering a decision in the affirmative; but this does not constitute the test and measure of undue influence. This: court has consistently adhered to the principle that the only influence which will be held to be undue and to' be sufficient, to invalidate a will which it has affected is that which is urged to such a degree as to amount to force and coercion and to destroy the testator’s free agency.” Dudderar v. Dudd erar, 116 Md. 605, 619, 82 A. 453, 458. From the evidence here rehearsed a strong suspicion may well arise that McCoy had a greater part in procuring this will than he states. The generosity to the religious organization upon AfcCoy’s persuasion, the broad power of attorney *624 given, the following of the will promptly upon McCoy’s discovering that the power of attorney would be inoperative after Carr’s death, McCoy’s statements and threats of procuring action by Carr, and the plan for a new will, all lend force to a supposition that McCoy was in 1928 working upon the testator in the interest of the organization to procure Carr’s estate for it in some way, and that his aid was effective. But evidently McCoy had arranged for no advantage to himself if the organization did get the estate. The will gave him nothing. It did not even relieve him of the payment of his debts to the estate. And McCoy had to struggle with one possible beneficiary after the other to secure for himself the advantage he sought. From the fact of his resort to the beneficiaries, even while Carr was living, it would appear rather that he could not influence the testator to give him what he so earnestly sought. And, to repeat, the testimony to the facts recited as ground for suspicion was accompanied by statements and explanations by the same witness for the caveator, that there was not in fact any undue influence exercised, and none could have been effective upon this testator. Upon consideration of all these circumstances, this court comes to the conclusion that there is not sufficient evidence to support an adjudication that Carr’s will was in .■fact produced by undue influence, amounting to coercion, ■exercised upon him. The evidence supports no more than .■a suspicion. Two prayers of the defendant for direction of .a verdict to this effect were therefore, in the opinion of this • court, improperly refused. And this being true, there is -.no need of passing on other rulings excepted to. Rulings reversed, and case remanded.