Brief for the Respondents in Opposition — Knost v. MacMillan

IN THE

Supreme Court of the Gnited States

OcToBER TERM, 1942.

No. 121.

Dororuy K. Kwnost, Petitioner,

v.

Donatp A. MacMinuan, Respondent.

—_—_

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia.

BRIEF FOR THE RESPONDENT IN OPPOSITION.

—__

MaBEL WALKER WILLEBRANDT,

Attorney for Respondent.

Of Counsel:

Wm. MontrcomMery Smita,

JOHN J. Srrica.

Press oF Byron S. ADAMS, WASHINGTON, D. 0.

—_ ee

INDEX

Page

PNET NII dsc ew Suen iye law tate, oe 1

NN ao BO eon Uke tae Gee at Fa ee 2

NN OMI i ini aces de ve lwies cones 2

Statutes and other material involved................ 3

oc OE Ee OO E POLED HO TEE rae ORGINAL: Fo gee Bap 3

Sa eigen en eee SR aA 7

RII Wish Or Ga oe! aU oe as ae ae 10

NSS ie NG eb tae ies ered eye ee a 12

CITATIONS.

Cases:

Aetna Ins, Co. v. Kennedy, 301 U. S. 389, 81 L. Ed.

BREE ci w Sha eked oo eee he hae 8

Baltimore & C. Line v. Redman, 295 U. S. 654, 79 L.

Oy NE 5 ide vpn Chi ea bn.d eg Eh oe eas 7,8

Berry v. United States, 312 U. S. 450, 85 L. Ed. 945.. 8

Beyer v. LeFevre, 186 U. S. 114, 126 .............. 11

Brooke v. Barnes, 61 App. D. CO. 161, 58 F. (2d) 887.. 11

Conway v. O’Brien, 312 U. S. 492, 85 L. Ed. 969.... 8

Del Vecchio v. Bowers, 296 U. S. 280, 285, 80 L. Ed.

repel STEP OT ECO EE Tre IaET aed rena 10

CMO 824-28 6 84.4 6 BO: 4 66S 6-64) 6:4 AS OES 6D SC

ce ae PY Pena PET ea oT ahi Det ian aa 8

Statutes:

District of Columbia Code (1940 Edition)

Ue Big MIE BEI 5 Ss bck ba cha vac nccsco keen 15

ee ee WS OE os oo 5 5 bk Ke cco cc keabecs 15

ieee ay POON TIDE ok ccc ccs coesncsscc 12

E

é

eS Se eer

ii

Index Continued.

Page

Ne SU, COI BPD 0 os knee cecsseenewceensis 12

eo RR, BO SS eer ere err rr 12

ae ED BORED 6 cs.w ca sewstedesavewawees 13

ERE Es IIE SUPE, ak ein nsinetons iavewenae 13

Act of Feb. 9, 1893, ¢. 74, 27 Stat. 434

SD MELEE EP ICE RCCL CCE C EOE CTE TT 14

ere is ee hapa aha Rameau 14

Judicial Code

PE ne dns gp bi nk kd whe be bk ee Oe 17

I Fi ines. Aig b VL REDE KE EMER EOS 17

ee ee ee ee ee ~;

IN 'THE

Supreme Court of the Anited States

OCTOBER ‘TERM, 1942.

No. 121.

DorotHy K. KNost, Petitioner,

v.

DonaLp A. MacMILLAN, Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia.

BRIEF FOR THE RESPONDENT IN OPPOSITION.

OPINIONS BELOW.

The memorandum opinion of the Justice of the

United States District Court for the Distriet of Colum-

bia denving the motion for judgment non obstante

veredicto, or for a new trial, is not officially reported

but appears in the record at page 516. The opinion of

the United States Court of Appeals for the District of

Columbia (R. 527-529) is reported in 126 F. (2d) 235.

é

x

=

©

2

.

KOO ET aE IRE LRT EI NO a SUES DIU EME eS aba YIP ENE

er ay

ARIAS te PI YAR > OF

2

JURISDICTION.

The judgment of the Court of Appeals was entered

on March 9, 1942 (R. 530). The petition for rehearing

was denied on March 30, 1942 (R. 538). The petition

for certiorari was filed on June 5, 1942. The jurisdie-

tion of this Court is invoked under Section 240 (a) of

the Judicial Code, as amended by the Act of February

13, 1925.

QUESTIONS PRESENTED.

The decedent made a will, giving all, where thereto-

fore she had given only half of her estate, to her hus-

band’s nephew. This will, unlike her prior wills, was

not drawn by her Washington lawyer. She had an

older brother of the beneficiary in California help her

write it, modeling it after his will. She was well, travel-

ing about alone, and admittedly of sound and disposing

mind. A niece, from whom she had been estranged

for a year before her death, but who had been a bene-

ficiary in the earlier will, charged that the last will was

obtained by undue influence, basing the charge on an

innuendo of improper infatuation of the 76 vear old

woman for her 41 vear old nephew. The jury sustained

the charge. The trial court denied a motion for a

directed verdict, and denied a motion for a verdict non

obstante veredicto or, in the alternative, a new trial, and

entered an order refusing probate of the will.

On appeal, the United States Court of Appeals for

the District of Columbia, in a two to one decision, re-

versed the trial court, on the ground that there was no

legal evidence of undue influence. Petitioner’s motion

for a rehearing before all six of the judges of the

United States Court of Appeals for the District of

Columbia was denied.

3

The only questions presented are (a) whether it

usurps the functions of a jury for two judges, out of

three sitting, to reverse the trial court in denying a mo-

tion non obstante veredicto, and (b) whether it was an f

abuse of discretion to deny petitioner’s request for a ‘

rehearing before all the judges of the United States i

Court of Appeals for the District of Columbia. :

STATUTES AND OTHER MATERIAL INVOLVED.

Title 19, Chapter 3, Sections 301, 305, 307, 311 and 5

312 of the District of Columbia Code (1940 Edition) ;

relating to the Probate of Wills, are set out in the Ap- 2

pendix. i

Pertinent portions of the Organie Act, the Act of

Feb, 9, 1893, ¢. 74, 27 Stat. 434, Sees. 1 and 6, creating 4

the Court of Appeals for the District of Columbia and

also ‘Title 11, Chapter 2, Sees. 201 and 205, District of q

Columbia Code (1940 Edition), each relating to a ‘full ‘

court’? are also in the Appendix to this brief.

For the convenience of comparison with the provi- :

sions of the Code of the Distriet of Columbia, Judicial

Code Sections 117 and 120 are printed in the Appendix.

STATEMENT. 4

The purpose of this petition is to have this Court 4

review the record of a will contest in the District of i

Columbia, where petitioner charged that her aunt’s :

last will was obtained by undue influence. :

The testamentary capacity of deceased and her é

physical vigor at the time of making the will are all

admitted. é

Mrs. Nellie Kk. Cameron, the deceased, a widow resid- f

ing in Washington (R. 1), was ‘ta very lovable and f

sincere old lady’? and ‘‘very. straightforward’? (R. t

;

1 RN RAT AEE Str A AN 2 tb EMC PRIE BE STN SP RTA LILO TONY PON CORNN Sh REMAP ESE IB BS SEE Ct a

239). A Washington lawyer, Walter Guy, had pro-

bated her husband’s estate, from which she received

what money she had. He also drew her prior will, in

which she divided her estate practically equally be-

tween her niece, Dorothy Knost, petitioner herein, and

her husband’s nephew, Donald MacMillan, respondent

CR. 83-85).

During Mrs. Cameron’s later years, after she was

70, living alone in Washington, the petitioner, living

in Ohio, never visited, seldom wrote, and never phoned

or wired her aunt. She acknowledged the existence,

during these years, of a growing estrangement from

her aunt (R. 159-160).

In 1937, about a year before Mrs. Cameron’s death,

petitioner sent deceased a formal, unloving letter

(Caveator’s exhibit 12) refusing a simple request the

old lady had made for the return of a keepsake (R.

136-137). This letter grieved deceased deeply. She

spoke often to strangers about it saying (R. 449) that

she was ‘‘ashamed’’ of her own relatives. She carried

it around in her purse, where it was found at her death

(R. 325).

Meantime, the MaeMillan family, including all of

respondent’s brothers and sisters, at various times from

1933 to 1937, visited Mrs. Cameron in Washington.

Dan came up from the University of Alabama (R.

309); the doctor, Douglas, whom later Mrs. Cameron

asked to help her write the challenged will, stopped

enroute to Europe, where in 1933 he went to do post-

graduate work in medicine (R. 331); and the girls, two

of them nurses, and one the family housekeeper,

stopped enroute to New York (R. 311, 377). Donald

(respondent) took her out almost daily whenever he

came in his car to the Washington office of the New

York Life Insurance Co., for which company he

5

worked. As early as 1934, deceased expressed appre-

ciation for this attention saying, (R. 331, Caveatee’s

Exhibit 41)

“You can’t imagine how much 1 miss vou,

Donald. 1 appreciated your calling me almost

every evening—then the nice auto drives we had.

[ looked forward to the phone calls—nice to have

someone take that much interest in an old lady’’,

For two vears before her death Mrs. Cameron re-

ferred to the MaeMillan family as ‘tmy boys and girls”

(R. 249, 263, 279, 299, 377, 391, 395). Donald was her

favorite. He, as a boy, in response to his uncle’s re-

quest (R. 306), had come from Canada, spending the

summer of 1919 with his aunt and uncle in Washington.

Always thereafter deceased had written him frequently

and lovingly, signing her letters ‘‘Aunt Nellie’? and

writing for both herself and her husband, giving Don-

ald motherly advice on business and on his marriage

and divorce (R. 325-399).

Another bond between respondent and deceased was

her solicitude and affection for two bedridden cousins

of hers, who lived in Long Beach, California. Over

many years Donald MaeMillan and his sisters Visited

these invalids, and for this kindness the deceased ex-

pressed repeated gratitude (R. 312, R. 325-399).

Respondent drove deceased to California in 1936,

where she visited the cousins in Long Beach and lived

for the winter season at the Hershey-Arms Hotel (R.

310, R. 243-247).

During the time from 1936 to 1938, except for a birth-

day and a Christmas card (R. 148), Mrs. Knost never

gave her aunt any attention, her very last (R. 148)

communication being the cold, unloving letter (Cavea-

tor’s Exhibit 12) which grieved deceased so much,

E

i

«

PREY ROE PMS LENIN LS CIP

LITE, ‘ :

PERLE RASA ROE

ea, a eee

dasa

NERO EOE Ne PME THE SEIS SLSR EDL M ROE EDEL ILLEGALS PNAS BILE SELON LIER AE ELAN GEARY POE RD ALI EAI SOS SH is Zag ER, ——

6

In the spring of 1937, respondent drove Mrs. Cam-

eron back to Washington. While alone in Washing-

ton, when no MacMillans were visiting her, and none

was even near, she sent back Mrs. Knost’s framed pho-

tograph, writing that she was ‘through with it”. (R.

390, 392.) |

Speaking then of petitioner, deceased said, ‘*I can’t

understand how a woman ean play such beautiful musie

and be so cruel at heart’? (R. 264). Mrs. Knost never

wrote, wired or phoned, or made any effort to renew

affectionate relations, although she admitted receiving

the framed photograph, and a letter from her aunt say-

ing that she was ‘‘through with it’’. (R. 149.)

In the fall of 1937, respondent again drove deceased

to California (R. 266). She was overjoyed to be back

(R. 446) and shortly thereafter went to Dr. Mace-

Millan’s office to have him help her make a will with

Donald the sole beneficiary (R. 23, 24, 30). They mod-

eled it after the Doctor’s will, and Mrs. Cameron car-

ried it away in her purse (R. 31).

At the time of making this last will, and for three

months thereafter, Mrs. Cameron was living at the

Hershey-Arms Hotel in Los Angeles, under no restraint

or surveillance from anyone, paving her own bills,

going about as she pleased, and writing frequently to

her friends (R. 249).

A month after making the will she gave a family

party (R. 464-5), just for the MacMillans, and after a

particularly happy time (R. 273, 299, 447), she pre-

sented the will to Donald (R. 300), saving it was ‘‘small

appreciation on my part for the pleasures you have

made for me * * *”’.

For two months after making the will deceased was

in communieation with her lawyer in Washington. In

letters to him she spoke of her happiness, but she ex-

>

7

pressed no word of dissatisfaction with the will she,

with Dr. MaeMillan’s help, had drawn (R. 95-6).

None of the above facts is refuted in any way in the

record,

In the light of such facts—disinheriting a niece

whom deceased had not seen for three years, from

whom she had received a cold letter that hurt and to

whom she had returned a portrait with the comment

that she was ‘“‘through’’—in favor of her husband’s

nephew, who, with his brothers and sisters, had loved

her, been ‘‘family’’ to her and had made her last years

happy and interesting, is a natural, normal act.

Furthermore, the innuendo of improper “infatua-

tion’’ between the ‘‘73 year old deceased and 37 vear

old respondent”’, which confused and mislead the jury,

which was persisted in before the Court of Appeals,

and which is even suggested to this Court, is repulsive ;

in the light of the undisputed facts. (

5

&

F

a

Ee

£

R

ee ad

ay

ARGUMENT. :

The United States Court of Appeals for the District

of Columbia, in reversing the District Court, has not

usurped the functions of the jury. The petitioner had

every right of a jury trial. But—in availing herself of

the right to try these issues by a jury she cannot side-

step control of the jury by the court, nor avoid the re-

sult of the judge passing upon a motion for a directed

verdict, or the motion non obstante veredicto, each of

which test the sufficiency of the evidence, ga which is

the sole responsibility of the court. Nor has she any

legal grounds for the complaint that she has been de-

prived of a jury trial, through the Court of Appeals

reversing the trial court on such motions. In doing so, j

the Court of Appeals reviewed only the functions of the :

trial judge—not the functions of the jury. Baltimore

LEELA EPPS Ns + REE

i Ps ed

SIAM NC MARIE A, DRI RRO TET RIES SRS OTIS IRR TI ate BON

FH Me —

and C. Line v. Redman, 295 U. 8. 654, 79 L. Ed. 1636;

Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 81 L. Ed. 1177,

8

Berry v. United States, 312 U.S. 450, 85 L. lid. 945;

Conway Vv. O’Brien, 312 U.S. 492, 85 L. Ed. 969; Halli-

day v. United States, Law Kd. Adv. Op. Vol. 86, p. 393,

are not controlling here. In the Conway (footnote No.

3, p. 493) and Berry (p. 451) and the Halliday (p. 394)

cases, although in each instance, the defendant moved

for a directed verdict, he failed, in each case, to move

for a judgment non obstante veredicto within the ten

days provided in Rule 50 (b).

In the instant case there are two circumstances which

distinguish it from eases on which petitioner relies,—

first, the judgment of reversal of the Court of Appeals

rests upon a review of the denial of the motion non

obstante veredicto, which made it a review of the fune-

tions of the court, and not a review of the functions of a

jury, and, second, the case is based on statutes limited

to the District of Columbia, not those of general juris-

diction.

Nor is there any merit in petitioner’s statement that

‘*there is no statutory authority for the decision of any

case by the Appellate Court below by less than a full

court’’, when that statement is coupled with her argu-

ment that the words ‘‘full court’’ in the statute mean

all the judges.

In Tertile Mills Securities Corporation v. Commis-

sioner of Internal Revenue, L. Ed. Advance Opinions

Vol. 86, p. 242, a rule of common sense is offered as the

proper wav to measure the meaning of such a statute:

“ee * * the conelusion that § 117 provides

merely the permissible complement of judges for

Cireuit Court of Appeals results in greater har-

mony in the statutory scheme than if the language

of § 117 is taken too literally. And any sacrifice

9

of literalness for common sense does no violence

to the history of § 117.”

It is true that there is a slight variation in the lan-

uage of the Acts creating and governing the United

tates Court of Appeals for the District of Columbia

rom those relating to other Circuit Courts of Appeals,

it the expression ‘‘a full court”? is found in both. (cf.

udicial Code, Section 120 and See. 205, Title 11 of the

ode of the District of Columbia set out in the Appen-

x.) The words ‘‘full court’’, as used in each Act,

fer toa court of three judges as originally constituted.

» interpret it so that every judge on the court would

ive to sit in every case, would defeat the legislative

irpose of enlarging the number of judges above three,

hich was to dispose of larger dockets.

Likewise, petitioner’s argument that it was arbitrary

t to grant a rehearing by all of the judges when peti-

mer demanded it, offends the rule of common sense,

cause if petitioner were right, it would mean that

ery defeated litigant could, at will, requisition the

ne of every member of the court to review a decision

th which he was dissatisfied.

The Court of Appeals correctly applied Gunning v.

voley, 281 U.S. 90; 74 L. Ed. 720. Petitioner misuses

in her effort to invoke this Court’s jurisdiction and

sert a conflict of decisions. In that case this Court

irified confused views of the justices of the Court of

ypeals of the District of Columbia on when a motion

‘a directed verdict must be denied. This Court eom-

nted (p. 95) that the opinion seemed to rest “upon

> conception that the rule stated by the Chief Justice

juired denial of defendant’s motion if. plaintiff’s

ims were supported by any evidence, however

cht’. Pointing out that ‘that is not the rule applied

Federal courts’’,—the correct rule was stated that—

LE SESE AREY SMI RTOND s as TILES PILES Ze

10

‘‘A mere scintilla of evidence is not enough to

require the submission of an issue to the jury. The

decisions establish a more reasonable rule ‘that in

every case, before the evidence is left to the jury,

there is a preliminary question for the judge, not

whether there is literally no evidence, but whether

there is any upon which a jury can properly pro-

ceed to find a verdict for the party producing it,

upon whom the onus of proof is imposed’ ”’.

In the instant case the Court of Appeals for the Dis-

trict of Columbia reviewed the ‘preliminary question”’

which was before the trial judge and, applying the

above rule, decided that innuendo and inferences which

had confused the jury did not constitute evidence

‘upon which the jury could properly proceed to find a

verdict”? of undue influence.

Certiorari should be denied because the decision be-

low is based upon a statute confined in its operation to

the District of Columbia, namely, the law providing for

the admission of a will to probate in the Distriet of Co-

lumbia, caveat thereon, and the trial of issues raised by

caveat. Consequently the case does not fall within Rule

38. Del Vecchio v. Bowers, 296 U. S. 280, 285; 80 L.

id. 229.

CONCLUSION.

There is no conflict with any decision of this Court,

or any other court, and no important point of Federal

law is involved. As the Court of Appeals said in its

opinion (R. 527-529) ‘There is no evidence that the

will was not in accordance with her (Mrs. Cameron’s)

wishes when, and after, she made it’’, and there is ‘‘no

evidence of oppression or ecoercion’’ and ‘‘no evidence

of improper conduct, as we interpret that term’’.

‘*Moreover possibility or suspicion of undue influence

_ ws

.

—

*

%

%

bd

fi

®

11

is not enough,”’ citing Beyer v. LeFevre, 186 U.S. 114,

126; Brooke vy. Barnes, 61 App. D. C. 161, 58 F. (2d)

887.

The petition for certiorari should be denied.

Respectfully submitted,

MABEL WALKER WILLEBRANDT,

Attorney for Respondent.

Of Counsel:

Wat. MonTGOMERY SMITH,

JOHN J. SIRICA,