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HEADNOTE: The National Society of the Daughters of the American Revolution v. Gallaudet University, No. 5531, September Term 1998. EVIDENCE - HEARSAY - An attorney may testify as to deceased client's charitable intentions relating to decedent's will under the state of mind exception to the hearsay rule. EVIDENCE - ESTATES & TRUSTS - CY PRES DOCTRINE - A court may consider extrinsic evidence when determining whether a testator had a general charitable intent for purposes of reforming a will using the cy pres doctrine.

REPORTED
IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 05531 September Term, 1998

___________________________________

THE NATIONAL SOCIETY OF THE DAUGHTERS OF THE AMERICAN REVOLUTION

v.

BRUCE E. GOODMAN, PERSONAL REPRESENTATIVE OF THE ESTATE OF OLIVE SWINDELLS ET AL.

___________________________________ Wenner, Harrell, Sonner, JJ. ___________________________________ Opinion by Sonner, J.

___________________________________ Filed: September 9, 1999

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This case represents an appeal from a judgment of the Circuit Court for Baltimore County, which rejected a claim by appellant, the National Society of the Daughters of the American Revolution ("DAR"), to a portion of the estate of one of its deceased members. The court found that appellant failed to establish a general charitable intent on the part of the testator, and therefore declined to apply the equitable doctrine of cy pres1 to reform the testator's ineffective bequest. the following issues: I. Did the trial court abuse its discretion in admitting the hearsay statements of the testator? Did the trial court err in finding that the evidence was in equipoise on the issue of the testator's general charitable intent? We are now called upon to decide

II.

For the reasons discussed below, we find no error and affirm the judgment of the lower court. On October 25, 1994, Olive Swindells hired an attorney to prepare a will that would establish a trust to provide for the care of her husband, if she predeceased him. As part of her

instructions, Mrs. Swindells indicated that she wanted the will to contain a residuary clause, which would leave 80% of her estate to appellee, Gallaudet University ("Gallaudet"), and the remaining 20% to the DAR Nursing Home for the benefit of the destitute members of the DAR. Although Mrs. Swindells was ninety-four years old at the

Cy pres is a saving device by which the intention of the testator is carried out as near as may be, when a charitable bequest is impossible, illegal, or impractical to enforce.

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time, the attorney noted that she appeared competent and was able to understand the significance of a fully executed and witnessed will.2 Following the meeting with Mrs. Swindells, the attorney

advised the local Maryland chapter of the DAR that his client wished to leave a bequest to the DAR Nursing Home facility that cares for indigent members of the DAR. The attorney then prepared

a last will and testament for Mrs. Swindells, which established a trust for Mr. Swindells, and devised the residue estate as follows: 1. 2. 80% to Gallaudet University]. College [now Gallaudet

20% to the (DAR) Daughters of the American Revolution Nursing Home for the use of destitute members of the (DAR) Daughters of the American Revolution.

On November 2, 1994, the attorney presented the will to Mrs. Swindells, who approved and properly executed it. On December 15, 1994, the attorney received a written reply from the DAR, which stated that the Maryland chapter did not maintain a nursing home facility. The letter suggested that the

bequest could be used for other purposes, such as establishing a scholarship fund in Mrs. Swindells's name or making renovations to several buildings owned by the DAR. The attorney promptly passed

this information on to Mrs. Swindells, who stated that "because the nursing home did not exist, she wished to leave all of her residuary estate to Gallaudet." The attorney then promptly

2

We note, however, that competence to execute a will was not an issue at

trial.

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prepared a revised will, which provided a trust for Mr. Swindells and named Gallaudet as the sole residuary legatee. Mr. Swindells, however, died before his wife executed the revised will. Following the funeral, Mrs. Swindells instructed the

attorney to revise her will once again to delete the trust for her husband, and to restrict the bequest to Gallaudet for scholarships only. The attorney then prepared another revised will, which

included the following bequest: ITEM II: I hereby give, devise and bequeath, all of the rest residue and remainder of my Estate to [Gallaudet] College, an educational institution now located in Washington D.C. This gift may, in the discretion of the Board of Trustee[s] [be] merged and mingled with and become a part of the general investment assesses of said College, and shall be known as the BERTRAM L. SWINDELLS and OLIVE R. SWINDELLS Scholarship Fund, and the income, but not the principal, thereof shall be used to establish a Scholarship or Scholarships and the selection of the beneficiaries thereof shall be determined by the President or such other authority as [may be] designated by the said Board of Trustees for said purpose. The attorney called Mrs. Swindells to schedule an appointment for execution of the final version of the will, but was unable to meet with her because Mrs. Swindells indicated that she was preoccupied with other matters.3 This was the final communication between the

attorney and Mrs. Swindells, for on March 16, 1995, Mrs. Swindells died from a sudden stroke, and without formally executing any

Mrs. Swindells stated that she was preparing to take her driver's license renewal test and attending to details following her husband's death.

3

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testamentary document other than the original November 2, 1994 will. Following Mrs. Swindells's death, her attorney advised

Gallaudet that it was the sole legatee of Mrs. Swindells's estate. Counsel for the DAR, however, contacted the attorney and informed him that the DAR would assert a 20% claim to the estate under the doctrine of cy pres. The attorney elected to make a partial

distribution of $3 million to Gallaudet, which represented the 80% of Mrs. Swindells's estate that was not in dispute, and filed a petition for instructions with the Orphans Court of Baltimore County as to the remaining 20% of the estate. On February 27,

1996, a three-judge panel of the Orphans Court issued a brief, written order, granting the disputed 20% of the estate to the DAR under the doctrine of cy pres. Gallaudet noted an appeal to the

Circuit Court for Baltimore County, which affirmed the Orphans Court's possessed Gallaudet decision, a holding intent once specifically to devote and that Mrs. to in Swindells charity. Gallaudet

general

the

estate Court,

appealed

again

this

University v. National Society of the Daughters of the American Revolution, 117 Md. App. 171, 699 A.2d 531 (1997), held that courts should consider both the language of the will, as well as extrinsic evidence, in determining whether a testator has manifested a general charitable intent. We then remanded the case to the

circuit court to ascertain whether Mrs. Swindells manifested a

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general charitable intent in conformance with our decision.

In

doing so, we advised the trial court to conduct further fact finding with respect to the evidentiary issues concerning Mrs. Swindells's attorney. post-execution, out-of-court statements to her

On remand, the court found that both statements were

admissible hearsay under Md. Rule 5-803(b)(3), but that the DAR failed to establish that Mrs. Swindells harbored a general This

charitable intent to leave 20% of her estate to the DAR. appeal followed.

The DAR's first contention on appeal is that the circuit court erred in admitting the testimony of Mrs. Swindells's attorney as to his client's intention to leave the entirety of her residuary estate to Gallaudet. Undoubtedly, Gallaudet offered the statements

at issue to prove the truth of the matter asserted therein, and consequently they constitute hearsay. task, therefore, is to determine See Md. Rule 5-801(c). whether the evidence Our is

nevertheless admissible under one of the many exceptions to the hearsay rule. The circuit court admitted the disputed statements

under Md. Rule 5-803(b)(3), commonly referred to as the "state of mind" or "statement of intent" exception to the hearsay rule. exception provides: (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition -5That

or the declarant's future action, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. Md. Rule 5-803(b)(3). Under this exception, forward-looking

statements of intent are admissible in order to prove that the declarant subsequently took a later action in accordance with that stated intent. (1996). 891 Farah v. Stout, 112 Md. App 106, 119, 684 A.2d 471

See also Ebert v. Ritchey, 54 Md. App. 388, 398, 458 A.2d By contrast, backward-looking statements, i.e.,

(1983).

declarations of memory or belief, are excluded because they present the classic hearsay dangers of memory and narration. MCCORMICK
ON

JOHN W. STRONG,

EVIDENCE

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