7 Md. 65 | Md. | 1854
delivered the opinion of this court.
This is an appeal from an order of the orphans court for Howard county, annulling letters of administration previously granted to Kitty Warfield on the personal estate of her deceased brother, Fielder Warfield, and also revoking and annulling the probat which' had been allowed of a- paper purporting to be the’ last will of said decedent.
It appears from the record that Fielder Warfield executed his last will and testament on the'27th day of February 1847, and that, after notice to the only heirs at law of the testator, Mortimer Dorsey, the executor named in the will, presented it to the orphans court on the 17th day of March 1847, when,upon the testimony of two of the attesting witnesses, it was admitted to probat. Mortimer Dorsey renounced his executorship, when, upon the recommendation of the three eldest sisters of the testator, letters of administration cum testamento
On the 9th March 1852, nearly five years after letters of administration had been granted to Kitty Warfield, a caveat to the will was filed by the appellees, praying that the probat of the same be revoked and annulled, upon the ground that the said will had been procured by fraud, misrepresentation and undue influence. This caveat was answered by Mortimer Dorsey and by Kitty Warfield, the first denying all the grounds of objection set out in the caveat, and the other without admitting or denying them.
At the hearing of the cause before the orphans court the appellants proved, by two of the subscribing witnesses, that they had been requested by the testator to witness his will, and that he was in his usual state of mind, as much so as when in health; and also proved by his attending physician, that he had known the testator from the time he was fifteen years of age up to that of his death, and that he was, in his judgment, perfectly competent to transact any common business, and had sufficient mind, memory and understanding to make a valid deed or contract. This opinion of the physician and subscribing witnesses was corroberated by a large number of witnesses, who bad known the testator for a great length of time, and who had enjoyed ample opportunity to forma correct opinion as to the condition of his mind. To rebut this, witnesses were examined on behalf of the caveators. We do not deem it essential to set out in detail the testimony of each witness; it is sufficient to say, that among those examined on the part of the caveators there were no professional characters—¡that is physicians—and that nearly all of them simply gave their opinion of his mental incapacity without assigning the facts from which that opinion was deduced. In regard to these opinions, unsupported by circumstances, there can be no doubt they were wholly inadmissible, as they did not come from professional experts. Brooke, et al., vs. Towns
It appears from the record that the testator was of very limited education, and that his will was executed by the affixing of his mark instead of his signature. To prove he was fully aware of the contents of the paper, Mortimer Dorsey, the executor named in the will, was examined. He proved that it had been read over to him, and was in accordance with his directions and met with his approval. It does not appear from anything in- the record, whether or not the majority of the judges of the orphans court who passed the order appealed from considered- him a competent witness. Looking to the general character of the proof touching the capacity of the testator, it is not unreasonable to suppose the-majority of the court were of opinion he was not competent, and, therefore, sustained the caveat on the ground that there was no proof of the knowledge of the testator of the contents
We entertain no doubt, however, of the competency of Mortimer Dorsey. He had renounced his executorship and took no interest under the will; he was in no manner, whatever, interested in the result of the inquiry before the oiphans court. In the case of Jackson & Wallington, vs. Whitehead, 3 Phillimore, 577, Sir John Nicholl said: “It is not to be denied, that in a great variety of cases executors have been dismissed after proceedings have been had; but it is said that he has appeared in the cause as a party, and also been sworn as an executor; and these circumstances are considered as precluding him. I have,” continues he, “looked through a great variety of cases, and have not found any one in which the circumstance of a person having been sworn as an executor has ever been that on which the court refused to allow him to renounce, nor has it ever been made a material ground.”
That case was much stronger than the one now before us. There the executors had taken the usual oaths as executors prior to the filing of the caveat. In the case under consideration the executor named in the will never assumed to act, but, on the contrary, renounced his right to act as such. See also, in affirmance of the competency of the witness, Goodtitle vs. Welford, 1 Douglas, 139. Fountain vs. Coke, 1 Mod., 107. Lowe vs. Jolliffe, 1 Wm. Blackstone, 365.
In regard to the objection, urged on behalf of the appellees, to the right of Mortimer Dorsey to appeal, it need only be observed, that whether tenable or not, there can be no doubt of this case being properly before us, inasmuch as there is not, nor can there be, any question as to the right of appeal of Rebecca Dorsey, who is directly interested in the decision of the orphans court.
Discovering nothing in the case to lead us to the belief that Fielder Warfield had not the necessary capacity to make a valid testamentary disposition of his property, and seeing that the contents of his will were made known to, and approved
Order reversed, with costs in both courts.