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Giardina v. Wannen

Decided: March 19, 1962.

GIARDINA ET AL.
v.
WANNEN ET AL., EXECUTORS



Appeal from the Court of Common Pleas of Baltimore City; Warnken, J.

Henderson, Prescott, Horney, Marbury and Sybert, JJ. Prescott, J., delivered the opinion of the Court.

Prescott

Questioned in this appeal are the trial judge's rulings, in the Court of Common Pleas of Baltimore City, in instructing the jury to make certain answers to issues that had been transmitted

to that court from the Orphans' Court, resulting from caveat proceedings relative to the purported last will and testament of Maria Fava; and the trial court's refusal to admit certain evidence proffered by the caveators.

Six issues, in usual form, were sent to the trial court. They raised these questions: (1) the execution of the will; (2) knowledge and understanding of its contents by the testatrix; (3) undue influence; (4) mental incapacity; (5) fraud; and (6) the factum of the will. The appellants concede the trial court's instruction relative to Issue No. 1 was correct; and also that the answer to Issue No. 6 was properly directed, unless one or more of the other issues should have been submitted to the jury. In addition, they conceded at the trial below that they had not offered sufficient evidence to require the jury's passing upon Issue No. 3. Hence, we need only consider the court's rulings on the questions of evidence and on Issues Nos. 2, 4, and 5, which we shall do after stating the facts.

Maria Fava was born in Sicily in 1885. When she was fifteen years of age, she was married to her first cousin Giovan Fava, popularly known as Jim Fava. In 1901, they came to Baltimore, where two of Jim's brothers, Salvatore (Sam) and Francisco (Frank), and their wives were operating the Savoia Restaurant. After their arrival in Baltimore, Jim and Maria went to live with Sam and Frank and their wives in an apartment over the restaurant, and made their home there until about 1907, when Andrew, the first child of Frank, was born.

Jim Fava founded the G. Fava Fruit Company (Fruit Company or Company) about 1908, and it and its affiliates were the foundation of the Fava fortune.

Maria Fava was one of a family of three sisters, and when Jim and Maria came to Baltimore in 1901, Maria's two sisters, the appellants, were living in that city. The elder, Concetta Mortillaro, had three children. Her son, Louis (who was a witness in the case) had two children of whom the elder, Concetta, married Eugene Pierelli (another witness). Maria's other sister, Josephina Giardina, had three children, of whom her son Joseph, and her daughter, Concetta Brocato, were witnesses.

Jim and Maria had no children; neither did his brother Sam, nor, apparently, any of his other siblings, except Frank, who had eight children living at the time of testatrix' death. These eight nieces and nephews of Jim Fava, who were also first cousins once removed of the testatrix are the principal beneficiaries under her will.

The Fruit Company prospered and grew. Sam and Frank remained in the restaurant business, but in the course of time, four of Frank's sons and the husband of one of Frank's daughters went to work for Jim in the fruit business. The eldest son, Andrew, ultimately became president of the business, and the second son, Joseph, the vice-president. Frank's other two sons remained with their father and actively participated in the restaurant business.

Early in the business career of Jim Fava, he became acquainted with William Wannen, and later with his brother Carl Wannen, both of whom were, and are, Certified Public Accountants. This acquaintanceship continued throughout the lives of both Jim and Maria, and the testimony makes it clear that not only did Carl Wannen, in his professional capacity, supervise the financial affairs of the Fava interests, but he also became the close and trusted adviser of Maria Fava and acted in that capacity for many years. The Wannens were named as executors by the testatrix, and are the appellees here, as executors and administrators pendente lite.

Jim died in 1948, testate. He left his stock in the Fruit Company in trust for the benefit of Maria for life, with remainder to his three nephews and his niece's husband (the niece also shared with her husband), who had been active in the business with him; namely to Andrew Fava 40%, to Joseph Fava 30%, to Andrew and Cecilia Ferlita 20%, and to Samuel Fava 10%. The trustees were Maria Fava, the oldest nephew Andrew Fava and Herman Moser (later Judge Moser). John Fava, the other nephew who became active in the business, was only 15 years of age when Jim died.

Maria Fava was a firm-willed woman of strong likes and dislikes, who insisted upon things being done her way. As one witness stated it, she ...


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