There remain for determination two issues: (1) whether the testator made an absolute gift of maintenance and care to his widow, and (2) whether she made a valid transfer to him about one year prior to his death, of $15,000 from a savings account in her name in the Commonwealth Trust Company.
The testator, Robert T. Skelton, died on June 13, 1950, leaving a last will and testament dated June 23, 1949, which was duly probated. He was a dentist who had practiced his profession until a few years before his death, when he retired in order to take care of his wife who was seriously ill. Their marriage was childless. The widow, Lucy A. Skelton, now 70 years of age, mentally and physically ill, is bedridden, completely helpless, and in need of constant nursing care. The cost of her maintenance and care is about $12,000 annually. On October 25, 1950, by a judgment of this court, she was adjudged a mental incompetent, and her cousin Henry C. Hasbrouck was appointed her guardian. The nearest kin of the widow are cousins with whom she had little if any contact during almost 40 years of her married life. She is possessed of a separate estate in excess of $100,000, which was created by the testator and consists of the following: realty which had been held by them as tenants by the entirety, real estate mortgages held jointly by them, United States Government bonds registered in their joint names, and proceeds of insurance policies on his life. The testator's residuary estate likewise is in excess of $100,000.
It will simplify the discussion of the will if the first three paragraphs are set forth in full.
"FIRST: After my lawful debts are discharged, I give, devise and bequeath my estate of whatsoever kind and nature and wheresoever situate, including all United States of America Bonds, which are
not in the joint names of myself and my wife, and which I possess at the time of my death, to my dear wife, LUCY AUGUSTA SKELTON, to have and enjoy without limitation during her lifetime, insofar as it be necessary for her maintenance and care, for and during her natural life, with the sole condition and proviso however, that the remainder of said estate, if any, at the time of her death, is hereby given, devised and bequeathed to the persons hereinafter named.
SECOND: In the event of my death, having in mind the present physical and mental condition of my wife, and should her condition remain as at present or become worse due to arterial sclerosis from which she has been afflicted for the past ten years and more, and which appears incurable with degenerative changes showing progressive damage to her system, I therefore hereby appoint my good friend and advisor, Francis A. Castellano, Jr., executor and trustee of my estate, which estate is to be first applied towards the care, maintenance, shelter, medical attention and necessities of my said wife and then applied, upon her death, if there be any remainder, in the manner hereinafter set forth.
THIRD: I hereby instruct my executor and trustee, before mentioned, that my said wife is to be taken care of by private care and is to receive the best care for her comfort and is not to be placed in any institution of any kind; however, care should be exercised in the expenses for my said wife as she can linger on and live for a long time. She is to be cared for in her own home at 4-Crane Street, Kingston, New York; also, she is to be buried from said home and interred in Montrepose Cemetery at Kingston, New York; her funeral to be simple and in keeping with her way of life."
In the sixth paragraph, he provided that on the death of his wife "the rest and remainder of my estate, if any," should pass to his brothers, sisters, and other relatives and friends.
In the eighth paragraph he made a bequest of $1,000 to the University of Maryland to "be paid to such legatee before the residue and remainder of my estate, left unconsumed at the time of the death of my beloved wife" is distributed in accordance with paragraph sixth.
The guardian contends that the widow has an absolute gift of maintenance and care, while some of the remaindermen insist that, in the absence of need, she is entitled only to the income of the residuary estate for life, and others of them that she should receive no part of the corpus or income until her separate estate has been completely exhausted.
If the clause "insofar as it be necessary for her maintenance and care" were eliminated from ...