PRESCOTT, J., delivered the opinion of the Court.
This is an appeal by the defendants below, Nancy Narcissa Poore Tufts, individually and as executrix of the estate of Pearl Payseur Poore, and William O. Tufts, from a determination by the Circuit Court for Prince George's County,
"Was the said paper writing dated July 3, 1955, purporting to be a codicil to the last will and testament of the said Pearl Payseur Poore procured by fraud exercised and practiced upon her?"
The jury by their verdict answered "Yes." There was also an issue upon the question of undue influence to which the jury answered "No," but it is not involved in this appeal, except insofar as it relates to the admissibility of certain testimony.
Sometime prior to 1939, the testatrix, Pearl Payseur Poore, and her husband, Colonel James Edward Poore, Sr., acquired about fourteen acres of land on the banks of the Potomac River in Prince George's County, Maryland. After Colonel Poore, Sr., was retired from military service, he and his wife built a home on the property and made their residence there. The home was built in 1939 and is known as Tulip Hill. The testatrix and her husband had two children, Colonel James Edward Poore, Jr., and Nancy Poore Tufts. Colonel Poore, Jr., married Elizabeth Gilbert Poore in 1927. Six children were born of the union, all of whom were plaintiffs herein. Nancy Poore Tufts married William O. Tufts in 1941. The Tufts have no children.
Mrs. Tufts lived at Tulip Hill with her parents until her marriage in 1941. She and her husband returned to Tulip Hill about 1942, and have continuously resided there since that time.
Colonel Poore, Jr., and his family lived during this period at various Army posts throughout the world, until he was retired from active service for a partial physical disability. He and his family then took up residence in South Carolina.
1. Tulip Hill was left to Nancy Poore Tufts for her lifetime, with a vested remainder over to Suzanne P. Poore, the remainder being subject to divestiture upon the happening of certain conditions which are not material here.
2. Personal effects, and household goods were left to Nancy Poore Tufts for her lifetime, with remainder to Suzanne P. Poore, the remainder being subject to divestment as in item 1 above.
3. A brick house and lot in Washington, D.C., was left to Colonel James Edward Poore, Jr., in fee simple.
4. and 5. One thousand dollars in government bonds or the equivalent in cash was left to each of the following grandchildren of the testatrix: James Edward Poore, III, Gerald G. Poore, Walter H. Poore, Richard T. Poore, Thomas W. Poore and to her daughter-in-law, Elizabeth Gilbert Poore.
6. The residue of the estate, including all cotton mill and bank stock, bonds, building and loan accounts and cash, was given one-half to Colonel James Edward Poore, Jr., outright, and one-half to Nancy Poore Tufts for her lifetime, with a remainder over to Colonel James Edward Poore, Jr., or his issue.
William O. Tufts was not left anything in the will. The testatrix did, however, include a request that her son-in-law be permitted to live at Tulip Hill after the death of Nancy Poore Tufts, so long as he should remain unmarried.
In September, 1952, the testatrix underwent an operation. She was hospitalized until January, 1953. She stood the operation fairly well, although she was confined to a wheelchair for a time and was obliged to utilize a nephrector tube. Despite
On July 3, 1955, the testatrix telephoned neighbors, Hilda N. Himmler and James B. and Henrietta Gillespie, and requested them to come to Tulip Hill and witness a codicil to her will. The three witnesses arrived in the early evening. Prior to their arrival, Nancy Poore Tufts, according to her testimony, had typed up her mother's codicil from a copy of a longhand draft furnished her by the testatrix. The testatrix and the three witnesses gathered in the living room at Tulip Hill and the codicil was executed with all proper legal formalities. At the same time and utilizing the same witnesses, Nancy Poore Tufts executed a will of her own.
The codicil executed on July 3, 1955, contained the following provisions:
(1) Nancy Poore Tufts was left Tulip Hill, in fee simple.
(2) Nancy Poore Tufts was left one-half "my mill and bank stocks, bonds, building and loan, and all cash monies," absolutely, with the request that she divide them equally among the testatrix' grandchildren upon her death.
(3) Elizabeth G. Poore was left "all my stock in the Charlestown National Bank."
(4) William O. Tufts was left 25 shares of "PEPCO" stock.
After the two documents were signed, the testatrix requested Mr. Tufts to take them upstairs and put them on her desk. Mr. Tufts did so. On July 6, 1955, the testatrix, together with Mr. and Mrs. Tufts, departed for Europe. They returned to Tulip Hill on approximately the 20th of August, 1955.
The papers remained in Pearl Payseur Poore's room until she and the Tufts returned from Europe. Nancy Poore Tufts and William O. Tufts both testified that it had been their intention and that of the testatrix to deposit the documents in the safe deposit boxes before the trip, but that due to the heat of the summer and the pressure of time, the trip to the bank was never made. A few days after the return from Europe, Mrs. Tufts placed her mother's codicil in her mother's lock box at the bank; she put her own will in a strong box in her study.
Colonel James Edward Poore, Jr., died on October 14, 1955. After her brother's death and before her mother's, Nancy Poore Tufts destroyed the will she had made on July 3, 1955, and has made no other. She testified that she did this because her brother was a beneficiary under the will and that she thought his death made a new will necessary. Mrs. Tufts did not tell her mother that the will was destroyed. The testatrix died on February 21, 1956.
The principal question involved herein is whether there was sufficient evidence upon which to submit the issue of fraud to the jury. In making such a determination in this type of case, we must, in accordance with the rule generally, examine all of the evidence offered on behalf, and in favor, of the caveators, assume its truth, and then consider it, together with all reasonable inferences that may be drawn therefrom, and decide whether the jury could reach a rational conclusion that the codicil was induced by fraud perpetrated upon Mrs. Poore. Smith v. Diggs, 128 Md. 394, 396, 97 A. 712.
There was testimony and reasonable inferences to be drawn
Something should be said with reference to what has just been stated concerning the permissible inference of the daughter's intention at the time of making the promise. A person's intention or state of mind at any particular time is difficult to prove. A fraudulent pre-existing intent not to perform a promise made cannot be inferred from the failure to perform the promise alone. Lipp v. Lipp, 158 Md. 207, 216, 148 A. 531. But, it may be considered with the subsequent conduct of the promisor and the other circumstances surrounding the transaction in sustaining such an inference. Lipp v. Lipp, supra, at page 216, and page 219; Councill v. Sun Ins. Office, 146 Md. 137, 150, 126 A. 229; Annos., 51 A.L.R. 165, 125 A.L.R. 892; Cutler v. Bowen, 51 P.2d 164 (Cal. App., 1935). Cf. 1 Moore on Facts, sec. 100. And it has been stated that under certain conditions, a failure or refusal to perform is strong evidence of an intent not to perform the promise at the time it was made, as where only a short period of time elapses between the making of the promise and the failure or refusal to perform it, and there is no change in the circumstances. 24 Am. Jur. Fraud and Deceit, sec. 287; Anno., 51 A.L.R. 165. It has also been stated the fact that a party is largely benefited by a will prepared by him, or in the preparation of which he takes an active part, is a suspicious circumstance, of more or less significance according to the facts of each particular case, to be considered by the jury in determining the question of fraud. Griffith v. Diffenderffer, 50 Md. 466, 484.
In valuing facts relating to the question of a present intention not to perform a promise made, courts have frequently stressed the importance and significance of the situation of the parties, the relations existing between them, the activity of the promisor in procuring the instrument, and the failure
With this premise established, it is clear that the case was properly submitted to the jury. Professor Page states that wilfully false statements of fact, other than those relating to the nature of the contents of the instrument, made by a beneficiary under the will which is thus induced, which are intended to deceive, and do deceive, the testator, which induce him to make the will, and without which he would not have made such will, constitute fraud in the inducement to make a will (as distinguished from fraud in the execution). 1 Page, Wills (Lifetime Ed.), sec. 179. This Court has held many times that the existing intention of a party at the time of contracting is a matter of fact. Among the cases so holding, see Brager v. Friedenwald, 128 Md. 8, 33, 97 A. 515; Gale v. McCullough, 118 Md. 287, 293, 84 A. 469; Lipp v. Lipp, supra, 158 Md. 216. See also Councill v. Sun Ins. Office, supra, 146 Md. 150, where this Court quoted with approval the famous statement of Lord Bowen in an action of deceit:
Maryland has adopted the overwhelming majority rule of the American courts in holding that fraud may be predicated on promises made with a present intention not to perform them. Councill v. Sun Ins. Office, supra; Brager v. Friedenwald, supra; Gale v. McCullough, supra; Ortel v. Upper Ashburton Realty Company, 171 Md. 678, 683, 190 A. 239. See also 23 Am. Jur. Fraud and Deceit, para. 106; Restatement, Contracts, para. 473; Annos., 51 A.L.R. 63, 68 A.L.R. 637,
From what has been said above, it will be seen that the evidence adduced and the reasonable and proper inferences that could be drawn therefrom were sufficient to permit the jury (they being the sole judges of the weight to be given the evidence) to find all of the elements and factors requisite to constitute fraud; hence the case was properly submitted to them for decision.
At the trial below, the appellees-plaintiffs offered and had admitted into evidence, over objections by the appellants, fourteen letters purportedly written by the testatrix, most of which were sent to her deceased son but several had been
The letters were objected to upon individual grounds, but (excepting at this stage exhibits 6, 12 and 17) the grounds of objection may be grouped. They were immateriality, dates not established independently of the contents of the letters and remoteness.
The objections to the four exhibits, and that part of exhibit 15, which contained brief statements of affection for the grandchildren may be disposed of quickly. If we assume without deciding that they were inadmissible, their admission was not prejudicial, as it is conceded by the appellants that the testatrix was fond of, and had affection for, these grandchildren.
Directing our attention now to the letters that referred to the testatrix' health and her dislike for her son-in-law in regard to their relevancy and remoteness, we think they were admissible. It will be recalled that when the testimony was taken, there were two issues before the court and jury: undue influence and fraud. It is well recognized that in will cases where fraud and undue influence are charged, the character and degree of the fraud practiced and the influence exerted necessarily involve, to some extent, the physical and mental condition of the testatrix at the time of the execution of a will or codicil, as well as her relations with, and feelings
With reference to the objection that the dates of the letters, in some instances, were not established by evidence independent of the contents of the letters, we know of no principle of law that prevents a witness from arriving at the date of a letter from its contents, provided it may be done with reasonable accuracy, such as the fact that the witness received the letter while in Australia and remembers that she was in Australia at a particular time, or that the letter was written when the writer was in the hospital for a particular illness and the witness remembers the time the writer was there.
This leaves for consideration exhibits 6, 12 and 17. Exhibit 6 was a letter written in 1948 by the testatrix to her daughter-in-law. It stated that two of her grandchildren had been bringing in rocks for her new beds (presumably flower beds), and that in order to build up their enthusiasm for the work, the writer had told the boys they were only helping to improve their own property as one of them would surely inherit Tulip Hill someday. This exhibit was objected to on only two grounds: that the date appeared to be in 1948 and therefore "might conceivably be prior" to the date of the 1948 will; and the exhibit consisted of almost a full page of writing, purporting to be a letter, which was obviously a continuation
Exhibit 12 was a letter written by the testatrix in 1953, the only part of which that was read to the jury was a short statement referring to her health. It was objected to on the grounds of lack of proper identification, remoteness and immateriality. Again if we assume, without deciding, that it was not properly identified, its admission was not reversible error; since it was merely cumulative in nature and not of too serious import.
Exhibit 17 was a letter written by the testatrix in 1954 to her son which showed affection and admiration for him. The ground of the objection was that its contents were immaterial. During the course of the trial, the caveatees had offered certain testimony tending to indicate a waning of the affection of the mother for her son. The letter was offered in rebuttal for the purpose of refuting this testimony of the caveatees. Under these circumstances, we think the letter was admissible.
The appellants further contend that if their other arguments fail, the appellees' case, at most, amounted merely to a case of partial invalidity. This question was not raised or considered below; so we do not think it is properly before us. Maryland Rule 885.
Rulings affirmed, with costs.