author: Davidson, J.,

text:
    RICHARD METIUS et al. v. EDWARD J. JULIO and CARL T. JULIO, Co-Partners t/a Cromwell Realty Company
    [No. 720,
    September Term, 1974.]

      Decided July 23, 1975.

      The cause was argued before Orth, C. J., and Davidson and Lowe, JJ.

      William F. Mosner for appellants.

      Benjamin R. Civiletti and PaulF. Strain for appellees.

       Note: Certiorari denied, Court of Appeals of Maryland, October 6, 1975.

   Davidson, J.,

delivered the opinion of the Court.

This appeal is from an order of the Circuit Court for Baltimore County dismissing a bill of complaint for injunctive relief sought to prohibit the construction of buildings alleged to be violative of an agreement, restricting the type of development to occur on a 23.2797 acre parcel of land lying south of the Baltimore Beltway between Providence Road and Cromwell Bridge Road. The agreement created equitable restrictions on the subject property, which provided, among other things, that it be developed with buildings not more than three stories in height.

There was evidence to show that before 22 July 1971 the subject property was principally owned by Cromwell Valley, Inc. On 6 March 1965 the County Board of Appeals of Baltimore County (Board) granted an application by the then owner for a reclassification of the subject property to the R.A. zone (Residential, Apartments, gross density 16 dwelling units per acre, net density 18 dwelling units per acre). The Board simultaneously denied a request for a special exception for elevator apartments, which would have permitted the construction of two 20-story apartment buildings containing a total of 637 apartment units. The then owner appealed from the denial of the special exception while neighboring property owners, who had opposed the grant of both the reclassification and the special exception, appealed from the grant of the reclassification.

On 18 March 1966 the circuit court affirmed the Board. Both the then owner of the subject property and the neighboring property owners appealed. While the appeals were pending in the Court of Appeals, the parties reached an agreement, embodied in a written document dated 12 July 1966, in which the neighboring property owners agreed to dismiss their appeal if the then owner of the subject property would impose certain restrictions upon the use and development of the land. This agreement, which provides that the equitable restrictions therein created shall run with the land and be binding upon present and all future owners thereof, reads, in pertinent part, as follows:

“THE PARTIES OF THE FIRST PART [owners of the subject property] ON BEHALF OF THEMSELVES AND THEIR HEIRS, SUCCESSORS, AND ASSIGNS AGREE AS FOLLOWS:
“2. Development within R-A Classification: That no petition for rezoning or special exception of any kind shall hereafter be filed on the aforesaid 23.2797 acre tract of land, and that said tract of land shall be developed with Garden Apartment buildings with gross density of not more than sixteen (16) units per acre, net density not more than eighteen (18) units per acre, nor more than three (3) stories in height, and in accordance with the applicable provisions and restrictions pertaining to the R-A Zone under Baltimore County zoning regulations in effect as of this Agreement; and further no use shall be made of said parcel for high rise apartments, commercial or office uses within the period of said restrictions hereinafter specified.” (Emphasis in original.)

On 13 July 1966 the agreement was recorded among the land records of Baltimore County.

On 22 July 1971, 23.16 + acres of the subject property, then classified in the D.R.-16 zone were sold to the appellees, Edward J. Julio and Carl T. Julio, Co-Partners, T/A Cromwell Realty Company (owners). A deed was executed on 2 November 1971 and recorded among the land records on 4 November 1971.

On 5 May 1972 the appropriate Baltimore County authorities finally approved a plan of development which permitted the construction of 390 garden apartments on the subject property, the maximum allowed in the D.R.-16 zone. The first phase of development called for the erection of 240 units to be located in 19 buildings arranged in four separate rows. Two types of structures were approved: one consisting of 12 units in which there were to be four units on each of three levels, a terrace, first and second floor; and one consisting of 14 units in which there were to be two units on a terrace level partially below grade, and four units on a first, second and third floor respectively.

The topography of the subject property is such that it slopes from north to south with its highest elevation at the north and its lowest at the south. Construction began on the northernmost part of the property, a building permit having been obtained on 29 August 1972. Eight buildings, arranged in two rows, were erected. Each structure contains 12 units, four on each of three floors.

In the summer of 1973 the construction of a third row of six buildings began. Each of these six buildings, located on sloping ground, contains 14 apartments, four units on each of three floors to which access is achieved by an entrance on the north (high) side of the building, and two units on a terrace level to which access is obtained by an entrance on the south (low) side of the building. As a result of the slope of the land, the two units on the terrace level are predominantly below grade. Indeed, the ceilings of these two units are only four-and-one-half feet above grade. There was testimony to show that given the slope of the land the terrace level on the low side is necessary to support the other levels in which the remaining 12 units are located.

On 30 July 1973, after the footings for these six buildings had been poured, the appellants, neighboring property owners, some of whom were signatories to the 12 July 1966 agreement (protestants), filed a bill of complaint in the circuit court. The bill alleged that construction of these buildings would violate the provision of the 12 July 1966 agreement limiting construction on the subject property to buildings not “more than three stories in height.” The bill sought to prohibit the owners “from erecting on the subject tract of land any building of more than three stories in height.” Notwithstanding the filing of this bill, the owners proceeded with construction. The buildings were completed before the case was decided by the circuit court.

After hearings on 27 December 1973, 2 January 1974 and 4 January 1974, Judge Walter M. Jenifer wrote a carefully considered memorandum opinion and order in which he found, insofar as here relevant, that construction of the six structures containing 14 units each, including two units partially below grade level, did not violate the “three stories in height” restriction. He further found that, even assuming there were a violation, such violation would be immaterial because it would not be in derogation of the real purpose and intention of the parties at the time the agreement was executed. Accordingly, on 28 June 1974 he entered an order dismissing the complaint, thereby denying the request for an injunction. It is from that order that this appeal is taken.

On appeal the protestants contend that the construction of these buildings constitutes a material violation of the “three stories in height” restriction. They assert that the meaning of the expression “three stories in height” is to be found in various dictionary definitions of the words, “story” and “height,” and more particularly in the Baltimore County Zoning Regulations, in effect at the time of the 12 July 1966 agreement and, in fact, referred to in that agreement as governing the type of development to occur on the subject property. Those regulations, like the ones currently in effect, define a “story” as follows:

“Story: That portion of a building included between the surface of any floor and the surface of the floor next above it, or if there be no floor above it, the space between such floor and the ceiling above it'. A basement shall be counted as a story if its ceiling is over six feet above the average level of the ..unfinished ground surface adjoining the exterior walls of such story, or it is used for business or dwelling purposes.” Baltimore County Zoning Regulations (1955) § 101; Baltimore County Zoning Regulations (1975 ed.) § 101.

The protestants maintain that the words “three stories in height,” when given their ordinary meaning, are clear and unambiguous. They contend that because the terrace levels are to be used for dwelling purposes the buildings are more than three stories in height.

In addition, the protestants argue that under such circumstances the trial court erred when it “speculated as to the intent and motivating reasons behind the agreement” and when it determined the purpose and intent of the parties at the time the agreement was made. They claim that it failed to consider that the protestants did not “want the developer to pack all his people into one small area of the 23 acre tract by erecting high-rise buildings. They wanted them to be spread as evenly as possible so that at least the appearance of congestion would be minimized. Thus when they opted for a limit of three stories they hoped to achieve not only height control but also to obtain a spread of the apartment units in some uniform fashion over the available area.”

The owners contend that the construction of these buildings does not violate the equitable height restriction. They point out that the meaning of that restriction, which was not simply to limit buildings to three stories but rather to limit them to three stories in height, is ambiguous. They argue that both the Baltimore County Building Code (1956) in effect at the time the agreement was executed, and a subsequent 1971 addition to that Code, each containing different definitions of a “first story,” preclude consideration of the terrace levels of these buildings as “first stories” and, therefore, as stories for the purpose of determining height in terms of stories.

In addition, the owners assert that the Building Code, in effect in Baltimore County when the agreement was executed in 1966 and which thereby became a part of the agreement, defines “height” as follows:

“When expressed in stories the height shall be taken as the number of stories in the building including any story where the ceiling is six (6) feet or more above the grade.” (Emphasis supplied.) BOCA Building Code (1956) Part 3, § 300.3, Definitions and Interpretations.

They contend that, because the ceilings of the terrace levels are four-and-one-half feet above ground, the buildings are clearly no more than three stories in height.

Finally, the owners assert that there was no violation of the equitable height restriction because the buildings, when -measured from the high side, are no more than three stories in height. They point out that the fact that an additional level is visible above grade on the low side is immaterial because the presence of the two apartments on the terrace level did not in any way increase the building height. They explain that the sloping topography at the site of these buildings necessitated a supporting understructure for the construction of any building containing four units on each of three levels. Thus, whether the requisite understructures were used for dwelling purposes or other purposes, the buildings would have had the same exterior appearance and overall height. They conclude that under these circumstances the form of development utilized here did not violate the intent and purpose of the equitable height restriction.

In construing the meaning of a restriction on the use of land, the court must determine the intent and purpose of the parties at the time the agreement was made, which is a question of fact. In making that determination the court must consider the language of the instrument itself, giving the words their ordinary and generally understood meaning unless it plainly appears from the context that the parties intended to use them in a different sense, or that they have acquired a peculiar or special meaning in respect to the particular subject matter. Where the language used in the instrument is ambiguous, the court must also consider the circumstances and conditions affecting the parties and the property at the time the agreement was made.

In addition, because sound policy favors the free and unrestricted use of land by its legal holder, whenever the language employed to express a restriction is ambiguous, the agreement is to be construed strictly against the partyj seeking to enforce it and all doubts must be resolved in favor of the free and unrestricted use of property.* Stated anothe/r way, an agreement restricting the use of land should be construed so as to avoid a finding of a violation thereof, when the covenant is as logically susceptible of such construction as of one entailing its violation.

Applying these principles to the instant case produces a clear result. The equitable height restriction does not limit the buildings to “three stories” but rather to “three stories in height.” We are persuaded that the meaning of the expression “three stories in height” used in this particular equitable restriction, is ambiguous. The application of either the definition of the word “story,” found in the Zoning Regulations, or the definition of the word “height,” found in the Building Code, would provide a reasonable interpretation of the terms used in the equitable height restriction here. If the Building Code definition were employed, no violation could be found because the terrace level, the ceiling of which is only four-and-one-half feet above grade, would not be counted as a story. Thus, when counted from either the high or low side, the buildings in the third row would contain no more than three stories. On the other hand, if the definition in the Zoning Regulations were employed, a violation could be found because the terrace level would be counted as a story so that the buildings would contain more than three stories on the low side.

The application of the Zoning Regulations creates a further ambiguity. While the buildings would contain more than three stories on the low side, they would contain less than three stories on the high side. The inherent difficulty is obvious. No given level or point from which to measure the “height” of the buildings is established in the equitable restriction limiting the buildings to “three stories in height.” Under these circumstances, it is impossible to determine whether such buildings would violate the equitable restriction.

Here the circumstances and conditions surrounding the execution of the agreement indicate that the intent of the restrictions was threefold: (1) to restrict the type of use made of the property by prohibiting high-rise apartment, commercial or office uses and permitting garden apartment uses; (2) to restrict the density of the permitted garden apartment use by limiting the number of allowable units per acre; and (3) to control the height of the buildings for the usual purposes of preserving the view, open air and light of adjoining and surrounding property owners. There is nothing in these circumstances or conditions which would suggest that at the time of the agreement the parties were concerned in any way with the number of buildings to be utilized in achieving the maximum allowable density per acre or in the density of use in a given building (numbers of people or families per building). Thus, there is nothing which indicates that the restriction in height in and of itself was intended to control the density or type of use of the apartment buildings to be developed on the subject property. Rather the record establishes that the sole purpose of the height restriction was to control the height of such buildings.

Given this limited purpose the meaning to be ascribed to the equitable height restriction becomes clear. While the Zoning Regulations classify levels having a ceiling less than six feet above ground as a “story” if used for dwelling or business purposes, the Building Code specifically prohibits the classification of such partially below ground levels, irrespective of use, as “stories” when the purpose of the classification is to determine height in terms of stories. The Zoning Regulations’ definition is premised solely upon use and is totally unrelated to the concept of height, whereas the Building Code’s definition is concerned solely with determining height and is totally unrelated to the use of the partially underground premises. Therefore, it is the Building Code and not the Zoning Regulations which give meaning to the words of the equitable height restriction which was here intended as a limitation on height and not on use.

Accordingly, we construe the equitable restriction limiting the development of the property to a building not more than three stories in height as meaning that the construction of a building containing three stories above ground plus a partially underground level having a ceiling less than six feet above grade is not prohibited. Such a construction is consonant with the view expressed by some few courts which have considered the question of how to measure height in terms of stories when the building contains a level partially below the grade, even when that level is used for dwelling purposes. Such a construction is also consonant with the policy of construing ambiguities in agreements restricting the use of land strictly against the party seeking enforcement, in such a way as to avoid a finding of a violation of the agreement and so that all doubt is resolved in favor of the free and unrestricted use of the property.

Here the buildings complained of contain no more than three stories on the high side and on the low side they contain no more than three stories above grade plus a partially underground level which has a ceiling only four-and-one-half feet above grade. The equitable restriction has not been violated. No other issue need be considered. Accordingly, the order of the trial court dismissing the bill of complaint for injunctive relief will be affirmed.

Order affirmed.

Costs to be paid by appellants.

      . A restriction upon the use of land may be enforced in equity even though there is no privity of estate between the original convenantors and covenantees in respect of the premises upon which the restriction is imposed. Meade v. Dennistone, 173 Md. 295, 302-03, 196 A. 330, 333-34 (1938); 3 Tiffany, Law of Real Property, § 858, pp. 471-72 (3rd ed. 1939). Such restrictions are variously termed negative easements, equitable servitudes, or merely equities attached to land and are enforceable against grantees who take with notice of the restriction. Turner v. Brocato, 206 Md. 336, 346, 111 A. 2d 855, 861 (1955); Meade, supra, at 173 Md. 302-03, 196 A. 333-34. We here use the term “equitable restrictions” to refer to the restrictions set forth in the parties’ agreement. See Pollack v. Bart, 202 Md. 172, 176, 95 A. 2d 864, 866 (1953).

      . On 3 August 1970 the County Council for Baltimore County amended the Baltimore County Zoning Regulations by enacting Bill No. 100. By virtue of § 100.3A of the amended regulations, which created a new set of zoning classifications, the R.A. zone was redesignated as D.R.-16 (Density-Residential, 16.0 density units per acre). The amended regulations, approved by the County Executive and officially enacted on 5 August 1970, became effective on 19 September 1970.

      . Statutory provisions in effect at the time an agreement is made become a part of the contract. Denice v. Spotswood I. Quinby, Inc., 248 Md. 428, 433-34, 237 A. 2d 4, 7 (1968); Holmes v. Sharretts, 228 Md. 358, 367, 180 A. 2d 302, 306 (1962); Kramer v. Kramer, 26 Md. App. 620, 632, 339 A. 2d 328. 336. The Baltimore County Building Code, which consists of the BOCA Basic Building Code prepared by the Building Officials Conference of America, Inc., had been adopted by the Commissioners for Baltimore County on 23 November 1956 and was in effect at the time of the agreement. The Building Code presently in effect is the 1972 BOCA Code, adopted by Bill No. 33 on 19 June 1972.

      . Oak Lane Corp. v. Duke, 196 Md. 136, 139, 75 A. 2d 80, 82 (1950); Scholtes v. McColgan, 184 Md. 480, 489, 41 A. 2d 479, 483 (1945); Legum v. Carlin, 168 Md. 191, 198, 177 A. 287, 291 (1935).

      . Levy v. Dundalk Co., 177 Md. 636, 648, 11 A. 2d 476, 481-82 (1948); Legum, supra, at 168 Md. 198, 177 A. 290-91; Himmel v. Hendler, 161 Md. 181, 187-88, 155 A. 316, 319 (1931).

      . Levy, supra; Legum, supra.

      . Harbor View Improvement Association v. Downey, 270 Md. 365, 371-73, 311 A. 2d 422, 425-26 (1973); Millison v. Fruchtman, 214 Md. 515, 518, 136 A. 2d 240, 242 (1957); Norris v. Williams, 189 Md. 73, 76, 54 A. 2d 331, 332 (1947); Whitmarsh v. Richmond, 179 Md. 523, 527, 20 A. 2d 161, 163 (1941); McKenrick v. Savings Bank of Baltimore, 174 Md. 118, 127-28, 197 A. 580, 584-85 (1938); Ferguson v. Beth-Mary Steel Corp., 166 Md. 666, 672, 172 A. 238, 240 (1934).

      . Downey, supra, at 270 Md. 371-73, 311 A. 2d 425-26; Osborne v. Talbot, 197 Md. 105, 117, 78 A. 2d 205, 210 (1951); Scholtes, supra, at 184 Md. 489-90, 41 A. 2d 484; Yorkway Apartments v. Dundalk Co., 180 Md. 647, 650, 26 A. 2d 398, 399 (1942); Bartell v. Senger, 160 Md. 685, 693, 155 A. 174, 177 (1931); Saratoga Building & Loan Corp. v. Roland Park Apartment Stables Co., 146 Md. 152, 158, 128 A. 270, 271 (1924).

      . McKenrick, supra, at 174 Md. 127-28, 197 A. 584; Himmel, supra, at 161 Md. 187, 155 A. 319.

      . Roland Park Civic League v. Lanco, Inc., 238 Md. 3, 10-11, 207 A. 2d 462, 466 (1965); Selvetti v. Building Inspector of Revere, 233 N.E.2d 915, 918 (Mass. 1968); O’Connell v. City of Brockton Board of Appeals, 181 N.E.2d 800, 803 (Mass. 1961); Smith v. North, 53 Cal. Rptr. 94, 96 (Cal.Dt.Ct.App. 1966). See also Snashall v. Jewell, 363 P. 2d 566, 571 (Ore. 1961).

      . Selvetti, supra; O’Connell, supra.


source: Caselaw Access Project

author: Murphy, J.,

license: Public Domain

text:
    JOHN B. SLICER et al. v. H. GLOYD GRIFFITH et al.
    [No. 753,
    September Term, 1974.]

      Decided July 23, 1975.

      The cause was argued before Orth, C. J., and Mason, J., and Robert C. Murphy, Chief Judge of the Court of Appeals of Maryland, specially assigned.

      Alger Y. Barbee for appellants.

      Joseph B. Simpson, Jr., with whom were Vivian V. Simpson, John Noble, Philip J. Santa Maria and Simpson & Simpson on the brief, for appellees.
   Murphy, J.,

delivered the opinion of the Court.

On February 3, 1972, Raymond C. Gloyd (Gloyd), a patient at the Potomac Valley Nursing Home, signed an instrument purporting to be his Last Will and Testament leaving his entire estate to a nephew, John B. Sheer. Gloyd was then 93 years of age and in poor physical and mental health, suffering from arteriosclerosis, encephalomalacia (softening of the brain) and senility. The instrument was prepared by Judson Wood, an attorney who resided in Gloyd’s home with Sheer; Wood, who was unknown to Gloyd, was named as executor of Gloyd’s estate. An earlier will executed by Gloyd in 1969 was destroyed by Sheer after Gloyd signed the instrument of February 3, 1972. Gloyd died on March 12, 1972, and two days later the instrument dated February 3, 1972, was admitted to administrative probate. Subsequently a petition and a caveat was filed by a number of Gloyd’s nieces and nephews. They claimed that the instrument dated February 3, 1972, was not Gloyd’s will and had not been duly executed by him; that Gloyd lacked testamentary capacity to execute a will on February 3, 1972; and that the document was procured by fraud and undue influence. Issues were thereafter framed, and the complaining nieces and nephews, as caveators, were named as plaintiffs; Sheer and Wood, as caveatees, were designated as defendants.

After opening statements of the parties had been presented at the trial before a jury in the Circuit-Court for Montgomery County, the Court (Shearin, J.) ruled that since the execution of the will was not admitted by the pleadings and Gloyd’s testamentary capacity had been challenged, “there has to be a prima facie showing that there is a will about which the contest arises.” The court concluded that the burden was upon the caveatees, as proponents of the will, to establish “prima facie the execution of the will and the testamentary capacity of the testator first, whereupon the caveators will then proceed with their proof, lack of capacity, and lack of due execution . . . .” The caveatees objected to this procedure, claiming that testamentary capacity was the main issue in the case, and that the caveators, as the moving parties, had the burden of proving lack of testamentary capacity.

The caveatees further objected to the court’s requirement that they prove prima facie execution of the will and testamentary capacity in the presence of the jury. They argued that these were preliminary matters solely for the court’s determination. The court agreed that it alone would determine whether the caveatees made the requisite prima facie showing but ruled that the jury “as the trier of the ultimate issues of fact, . . . ought to have the benefit of . . . all of the testimony that is adduced.” The court said that “if the two aspects of the initial proof of . . . [the caveatees’] prima facie case fall short, then conceivably the matter might be ended there” but that if the court ruled that a prima facie case of due execution and testamentary capacity had been preliminarily established by the caveatees, that testimony “would be in along with any other evidence adduced to the contrary, or further evidence on behalf of the caveatees.” The court indicated that “it would save time not to have . . . [the same testimony] repeated [before the jury],” but its ruling did not preclude the caveatees from presenting the same, or additional evidence bearing on the execution of the will, or on Gloyd’s testamentary capacity to the jury at a later stage in the proceedings if they desired to do so.

In accordance with the court’s procedural rulings, the caveatees produced the testimony of Sally Robbins, the administrator of the nursing home and one of the attesting witnesses, and Slicer, as well as the deposition of Betty Tomlinson, the other attesting witness. Their testimony with respect to the execution of the will was somewhat conflicting but each expressed the opinion that Gloyd was mentally competent on February 3, 1972, to execute the will. At the conclusion of their testimony, the Court ruled that the requisite prima facie showing of due execution and testamentary capacity had been made and admitted the will into evidence.

The caveators then proceeded to put on their case-in-chief. Katheryne Van Metre, a second cousin and long acquaintance of Gloyd, Mary Gloyd, a niece, and Lloyd Whalen, a neighbor, each testified with respect to Gloyd’s mental condition. Dr. John G. Lodmell, Gloyd’s attending physician, testified with respect to Gloyd’s mental and physical condition, and the records of the nursing home, and the Montgomery County General Hospital, where Gloyd had been confined prior to his admission to the nursing home, were admitted in evidence. Following the presentation of this evidence, the caveatees moved for a directed verdict which the court denied. Thereafter, the caveatees adduced documentary evidence in support of their case, but offered no additional testimonial evidence; they chose not to repeat the testimony given on their behalf before the jury at the outset of the trial, but instead incorporated it as part of their defense and rested. The jury returned special verdicts to the effect that while Gloyd signed the instrument dated February 3, 1972, he lacked testamentary capacity to execute a will on that date, and that the purported will was procured by fraud and undue influence. This appeal followed, the caveatees claiming that the lower court erred:

(1) in requiring that they “proceed with testimony as to the execution of the will and also to prove the competency of the testator first before any other evidence,” and
(2) “in conducting preliminary hearings on the prima facie execution of the will and a prima facie determination of mental competence of the testator in the presence of the jury,” and
(3) in admitting the testimony of the caveators’ witnesses with respect to Gloyd’s testamentary capacity, ánd
(4) in “spbmitting issues to the jury on the question lof duress and undue influence,” and
(5) in appointing “the foreman of the jury, who was the father of the judge’s bailiff and law clerk, without having made such relationship between the two first known to the defense counsel.”

It is well settled in Maryland that where, as here, the execution of the will is not admitted by the pleadings, the caveatees bear the burden of presenting a prima facie case of the execution of the will before it may be received in evidence. Conrades v. Heller, 119 Md. 448, 452, 87 A. 28, 31 (1913); P. Sykes, Contest of Wills in Maryland § 46 (1941). Not so well settled is the question whether the caveatees must also make out a prima facie case of the testator’s mental capacity, where challenged, before the caveators are required to proceed with their case-in-chief. Early Maryland cases, such as Cramer v. Crumbaugh, 3 Md. 491 (1853), and Waters v. Waters, 35 Md. 531 (1872), indicate that the caveatees do have this duty. In Cramer, where a caveat was filed on the ground of lack of testamentary capacity, the caveatee had drawn the will and both he and his son were legatees; there the Court said that in such cases the “onus [probandi] is imposed on the party propounding a will; it is in general discharged by proof of capacity and the fact of execution . . . .” 3 Md. at 504 (emphasis in original). In Waters, where the validity of a will was similarly challenged on grounds of testamentary capacity, the Court said:

“The onus was upon the defendants [caveatees] to prove the due execution of the will, and for that purpose it was necessary for them first to call the subscribing witnesses, to testify as to the fact of the execution of the paper, and the mental capacity of the testator at that time . . . 35 Md. at 537.

Another early Maryland case, Higgins v. Carlton, 28 Md. 115 (1868), involving a challenge to the testator’s mental capacity, held that the burden of proof (in the sense of the risk of non-persuasion) rested upon the caveators. There, the Court noted at page 141 that in some states the presumption of sanity was not applicable in will contests “and that therefore a party propounding a will must not only prove execution, but must also offer positive proof of capacity.” In rejecting this rule as not sustained by reason or the weight of authority, the Court stated that the presumption of sanity applied in will cases in Maryland, and that, after due execution of the will had been proved by the caveatees, the burden of establishing unsoundness of mind was upon the caveators. The Court said:

“The very general language used in Cramer v. Crumbaugh . . . cannot be taken to control and alter this principle .... [T]he quo modo of proof must be in harmony with other recognized rules and principles. If capacity be established by evidence of a fact from which it is to be presumed, proof of capacity has in reality been given; and the onus cast upon the party propounding a will is discharged by proof of execution, because that being proved, the presumption of capacity follows.”
28 Md. at 144.

Since Higgins and Waters, no Maryland case has directly addressed the question of onus probandi in precise terms of the requirement of proving a prima facie case where the issue is testamentary capacity. Cases from other jurisdictions, however, go off in all directions. Some say that the proponents of the will must, in the first instance, establish a prima facie case by proof of testamentary capacity without regard to the presumption of sanity. Other cases hold that the burden of showing testamentary incapacity is upon the contestants throughout the trial. Still other cases indicate, as in Higgins, that in view of the presumption of sanity, it is only necessary for the proponents of the will to prove due execution to establish a prima facie case, after which the caveators are required to proceed with their testimony; this appears to be the view of the Maryland law taken by Sykes, supra, § 46 at 55. See also J. Alexander, Law of Wills § 399 (1917); T. Atkinson, Law of Wills §. 101 (2nd ed. 1953); W. Bowe and D. Parker, Page on Wills § 29.33 (3rd rev. ed. 1961). We think Higgins represents the law of Maryland and is fully consonant with the firmly established rule in this State that generally, in view of the presumption of sanity, the caveators bear the burden of proving testamentary incapacity. See Phelps v. Goldberg, 270 Md. 694, 313 A. 2d 683 (1974); Webster v. Larmore, 268 Md. 153, 299 A. 2d 814 (1973); Ingalls v. Trustees, 244 Md. 243, 223 A. 2d 778 (1966). Cf. Kuenne v. Kuenne, 219 Md. 101, 148 A. 2d 448 (1959) and Daugherty v. Robinson, 143 Md. 259, 122 A. 124 (1923). Accordingly, we think the lower court erred in requiring the caveatees, over their objection, to make out a prima facie case, independent of the presumption of sanity, that Gloyd possessed the requisite testamentary capacity before receiving the will in evidence.

Under the circumstances of this case, the lower court’s error in this regard, and its insistence that the prima facie showing of testamentary capacity be made in the presence of the jury, does not require reversal. The caveatees claim only that they were prejudiced “by the proceeding requiring them to repeat so-called pronounced ‘prima facie evidence of execution and competency,’ or by referring to it and incorporating it by reference into the proceeding at an awkward and prejudicial posture of the Defendants’ case.” They contend that prejudice resulted because they “were required to conduct practically their entire case, or its main thrust, before the jury in a ‘prima facie’ stage of proceedings,” and that they were deprived of the benefit of the presumption of sanity. We think the claim of prejudice is more illusory than real. The lower court did not require that the caveatees establish more than a prima facie case of testamentary capacity in the jury’s presence. The subscribing witnesses, Robbins and Tomlinson, were entirely ample for this purpose and they testified in the usual sterile fashion of subscribing witnesses that Gloyd appeared to them to be mentally competent. The decision of the caveatees to elicit Slicer’s testimony at this juncture of the proceedings was not dictated by the court. The court made it plain at the outset of the trial that if the caveatees established a prima facie case, the caveators would then be required to carry the burden of proving lack of testamentary capacity. The caveatees did make out the requisite prima facie case; they were not denied the right to move for a directed verdict at the conclusion of the caveators’ case; and they were afforded the right to adduce evidence with respect to Gloyd’s mental capacity after the caveators had rested their case. That the caveatees eschewed the opportunity to produce additional testimony, to reinforce their witnesses’ testimony, and to have the last word was a decision in no way fastened upon them by the court. In the final analysis, the question of Gloyd’s testamentary capacity was a question of fact to be decided by the jury, and nothing was placed before it that it would not otherwise have heard had the correct procedure been observed. Ultimately, the court instructed the jury “that the law presumes that every man is sane and has capacity to make a valid will and the burden of proving to the contrary by a fair preponderance of the evidence, rests upon the plaintiffs who allege that. . . Gloyd lacked testamentary capacity at the time of the alleged execution of the paper writing dated February 3, 1972. . . .” We perceive no prejudicial error.

The caveatees next claim that the caveators’ testimony concerning Gloyd’s lack of capacity was too remote in that it did not pertain to the time of the execution of the will. They also contend that there was no evidence of undue influence or fraud.

To execute an effective will, the testator must be “legally competent.” Maryland Code (1974), Estates and Trusts Article, § 4-101. As the comment to § 4-101 indicates, the term “legally competent” incorporates the body of law on testamentary capacity developed by the Court of Appeals. Phelps v. Goldberg, 270 Md. 694, 696, 313 A. 2d 683, 684-85 (1974). This standard is equivalent to that expressed in 1 Page on Wills, supra, § 12.21 at 606, quoted in Phelps, supra, 270 Md. at 698, 313 A. 2d at 685:

“ ‘The standard of testamentary capacity which has finally been agreed upon, in substance, by the great weight of authority is as follows: Testator must have sufficient strength and clearness of mind and memory, to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and nature of the act which he is about to perform, and the names and identity of the persons who are to be the objects of his bounty, and his relation towards them.’ ”

As heretofore indicated, the law presumes that a person possesses this capacity and places the burden of proving otherwise upon those seeking to have the testator’s will nullified upon the ground of lack of capacity. In the absence of proof of prior permanent insanity, the caveators must show that the testator was incompetent at the time the will was executed in order to overcome the presumption of sanity. Webster v. Larmore, supra, 268 Md. at 158, 299 A. 2d at 817, citing Arbogast, Exec. v. MacMillan, 221 Md. 516, 523, 158 A. 2d 97, 101 (1960) and other cases. As was said in Webster, 268 Md. at 164-65, 299 A. 2d at 820:

“The rule of our cases is . . . that while testimony tending to establish competency may relate to periods preceding or succeeding the execution of the will, testimony tending to establish incompetency must reasonably relate to the date of execution [citations omitted]. If that were not so, a caveat action could never be defended, as it frequently is, on the ground that a will was executed at a time when the testator had a lucid interval.”

Assuming as we must the truth of the caveators’ evidence and all reasonable inferences flowing therefrom, Webster v. Larmore, supra, we conclude that the lower court correctly denied the caveatees’ motion for a directed verdict and for judgment n.o.v.

The record reveals that the caveators produced an abundance of evidence properly bearing oh Gloyd’s mental capacity. Mrs. Van Metre testified that she had visited Gloyd once or twice a week during the entire time that he was in the nursing home, including late January and early February of 1972. According to her testimony, Gloyd spoke of his deceased relatives — his wife, mother, brothers — as well as friends, as if they were still alive; he would relate events in his childhood as if they occurred that day or the preceding day; contrary to his former behavior, he had no interest in local events, including the activities on his farm; he at times did not recognize Mrs. Van Metre and would address her as his mother; his mental condition gradually worsened during the period that she visited him; and in her opinion, she did not think that “he would know of his assets or could remember all the relatives or their relationships since he couldn’t remember many times who I was.”

Mary Gloyd, a niece, also visited Gloyd at least once a week during his stay at the nursing home. Her testimony corresponded to that of Mrs. Van Metre. She said that Gloyd would always ask about his mother who died in 1919; he made frequent references to his deceased brothers, as if they were alive and currently working the farm; and he made other remarks about past events as if they were presently occurring. The witness visited Gloyd on February 4, 1972, the day after the contested will was signed, and she remarked that his condition was the same as it had been on the other occasions when she visited. Based upon her knowledge of Gloyd’s actions and appearances, and upon the facts that she had described, the witness opined that Gloyd did not have sufficient understanding of the nature of the business in which he was engaged, a recollection of his property, or the identity of the different persons who would have been the objects of his bounty.

Gloyd’s attending physician, Dr. John G. Lodmell, testified for the caveators. He had made eight personal visits to Gloyd during his hospitalization and confinement, including visits on November 13, 1971, and February 25, 1972. Dr. Lodmell testified that, in addition to suffering from urinary blockage, which led to his hospitalization in the Montgomery General Hospital immediately before his admission to the nursing home, Gloyd suffered from generalized arteriosclerosis, encephalomalacia, and senility. He also suffered frequently from dehydration, during which time he would be almost comatose for periods of several days. The witness testified that at other times, when Gloyd appeared alert and witty, he still was not oriented to time, place or surrounding events, and he would talk about the distant past as if it were the present. Dr. Lodmell said that Gloyd’s physical condition was irreversible, and, even at his best, he lacked the mental capacity to make rational judgments; to look after himself; and to perform essential personal care. Dr. Lodmell stated that Gloyd was not, at any time during his stay at the nursing home, capable of understanding the extent of his property or the names of those who may have been the natural objects of his bounty.

We think that this testimony reasonably relates to the time of the execution of the purported will. Mrs. Van Metre visited Gloyd within a week of the date of the signing, and Miss Gloyd within a day following the signing. Their testimony is consistent with that of Dr. Lodmell and with the hospital records admitted into evidence. In this context, that Dr. Lodmell visited the decedent several months before and three weeks after the signing of the will does not render his testimony too remote. The evidence showed a continual and permanent incapacity throughout the decedent’s stay at the hospital and nursing home. Compare Doyle v. Rody, 180 Md. 471, 25 A. 2d 457 (1942) (diagnosis of cerebral arteriosclerosis, senile deterioration and softening of the brain three weeks prior to the void transaction); Lawson v. Ward, 153 Md. 93, 137 A. 479 (1927) (proper admission of description of testator’s behavior two to three months prior to execution of invalid will, where the mental condition was an unchanging one) with Webster v. Larmore, supra (evidence of insanity 28 months after the execution of the will); Arbogast, Exec. v. MacMillan, supra (insufficiency of the evidence of a urologist who had seen the testator no closer than two months before the execution of the will, who admitted that the testator had clear moments and days, and who did not know whether the testator was lucid the day the will was executed). We conclude that the evidence of testamentary incapacity was not too remote and hence was properly submitted to the jury. In view of the jury’s verdict that Gloyd lacked testamentary capacity, we need not reach the issue of the sufficiency of the evidence to establish undue influence and fraud.

The caveatees finally argue that the appointment of Valentine L. Wilson, father of the trial judge’s law clerk/bailiff, as foreman of the jury, and the court’s failure to inform the caveatees of the relationship constitutes reversible error. The caveatees maintain that the appointment gave rise to the appearance of impropriety and deprived them of their right to challenge Wilson as a juror. While they do not assert any impropriety on the part of either Wilson or his son, they claim that the trial judge was predisposed toward the caveators and, intimating that this predisposition operated through the relationship to influence the jury, they claim that they did not receive a fair trial.

A careful reading of the transcript demonstrates to our complete satisfaction the fairness and impartiality of the lower court in conducting the trial. Consequently, in view of the rule that a relationship between a juror and a witness for one of the parties does not disqualify the juror in the absence of an affirmative showing of prejudice, see Bristow v. State, 242 Md. 283, 219 A. 2d 33 (1966); Goldstein v. State, 220 Md. 39, 150 A. 2d 900 (1959); Mills v. State, 12 Md. App. 449, 279 A. 2d 473 (1971); Baker v. State, 3 Md. App. 251, 238 A. 2d 561 (1968); Borman v. State, 1 Md. App. 276, 229 A. 2d 440 (1967), the relationship between the juror and the law clerk/bailiff does not require reversal of the judgment.

Judgment affirmed; costs to be paid by appellants.

      . It appears nevertheless that the usual practice in Maryland has followed that outlined in 9 Am. Jur. Trials, Will Contests §-67 (1965), i.e., that the caveatees call the subscribing witnesses, elicit from them the facts regarding execution of the will, and ask specifically whether the testator appeared to possess a sound mind and memory. See Ingalls v. Trustees, supra; 22 M.L.E. Wills § 181 (1962); P. Sykes, supra, § 46.