28 Md. 115 | Md. | 1868
delivered the opinion of this Court.
This case arises upon a caveat, filed in the Orphans’ Court of Prince George’s county, to the will of John Higgins. Issues involving execution, testamentary capacity, fraud and undue influence, were sent up for trial to the Circuit Court for that county. Upon application by the caveatees the case was afterwards removed to the Circuit Court for Anno Arundel county, and it now comes before us upon the several exceptions, taken by the caveators at the trial, to the rulings of that Court.
The first exception alleges error in the Court in refusing to allow a witness, upon cross-examination, to testify in regard to the difference between the contents of a memorandum and the will in controversy. It is necessary in deciding upon the admissibility of this evidence to refer to a part of the testimony previously given by this witness. He was the attorney who drew the will; and upon his examination in chief had stated, that it “was drawn from a memorandum placed in his hands by Mrs. Higgins, to whom, at the suggestion of Mr. Higgins, he applied for it.” Upon cross-examination, the caveators asked him to produce this memorandum. This he
The case of Burckmyer & Adams vs. Whiteford, 6 Gill, 13, if any authority is needed, disposes of the second exception. The witness was asked, “why he made in the will the change from the memorandum, in reference to the devise of the lands to Mrs. Eerrall'?” His reasons for doing so are certainly responsive to the question. Upon his proceeding, however, to give them, the very party asking the question, objected. It is now argued that they were inadmissible, because the necessary inference of their being irrelevant was raised by the witness stating “he did not consult Higgins or talk with him upon the subject.” The reasons given by the witness are not in the record, nor is it necessary that we should know what they were, in determining the point as it is presented. Looking, however, to the preceding testimony, the inference is in favor of their relevancy, or at least it cannot be assumed they were necessarily irrelevant. A third party, at the request of Higgins, may have directed the alteration to be made. That it was done by his authority, and for reasons satisfactory to him, cannot be doubted. The devise, as it is found in the will, was approved by Higgins, for this witness states, that after preparing the will, “ he read it to the testator verbatim et literatim, who ratified it.” We do not, there
It has been repeatedly settled by the decisions of this Court, that a judgment will not he reversed, where it appeal's from the record, the appellants have not been injured by the rulings of the Court below, although such rulings may be erroneous. For this purpose, it is proper to look to the whole record, and not, as was argued in this case, to that part only of the record, which precedes and includes the particular exception under consideration. "We think it unnecessary, and do not mean to express any opinion upon the question presented by the third exception. The error there complained of, even conceding the ruling of the Court to be wrong, does no injury to the appellants. The testimony, sought to be elicited by them, is afterwards given by the witness, Scott, and is found in the evidence contained in the seventh exception. He there assigns his reasons for objecting to sign the will in controversy, as one of the attesting witnesses, and the appellants have had the benefit of those reasons before the jury.
The fourth exception is taken to the refusal of the Court below to allow a witness to give in evidence his opinion of the “ physical capacity ” of the testator to hold conversations testified to by another witness, the witness under examination not being present. It is properly said in Phillips vs. Kingfield, 1 Appleton’s R., 379, that “the opinions of a witness are not legal testimony except in special (¡ases; such for example, as experts in some profession or art, those of the witnesses to a will, and in our practice, opinions on the value of property. In other cases, the witness is not to substitute his opinion for that of the jury ; nor are they to rely upon any such opinion instead of exercising their own judgment, taking into consideration the whole testimony.” The Courts of Maryland have gone a step further, and allowed witnesses to express their opinion upon the menial condition of a testator, whose will is controverted, unless it be a more naked
The fifth exception having been abandoned by the appellants, the next question arises upon the sixth exception. The witness was asked, for the purpose of laying a foundation to contradict her, “ if she had ever had a conversation with the witness Scott, in reference to the memorandum from which the will was drawn?” Having answered in the negative, Scott was afterwards called, and the question, set out in this exception, put to him by the caveators. The Court, upon objection made, refused to permit him to answer it; and in this refusal the appellants allege there is error. In Whiteford vs. Burckmyer, 1 Gill, 139, the rule is laid down, that “the witness, whom it is intended to impeach, should have a full and fair opportunity to recollect, by calling his attention to dates, names and other attendant circumstances connected with the matter, about which he is charged to have made different statements.” In the present case the memorandum spoken of, had been written nine months before the date of the will in controversy, and to have given the witness “a full and fair opportunity to recollect,” her attention should have been called to something more than the name of the party. The question embraced a long period of time; and justice to the witness required that her attention should have been directed, at least with a reasonable degree of certainty, to dates and other attendant. circumstances. The question put to her was of the most general character; and for the purpose for which it was asked, is liable to another fatal objection. She was not asked whether she had made certain statements
The seventh exception also presents a matter of evidence. The question asked by the caveators was irregular. The caveatees had closed their case, and the caveators, at that stage of the trial, were entitled strictly to offer rebutting evidence only. The evidence offered was not of that character. It certainly could not have had the effect to contradict the witness whose testimony it was designed to impeach. He had made no statement that Scott had testified to rational or irrational conversations on the part of the testator. If the testimony had already been given, it was only asking the witness to repeat what he had before said; and if it had not, it wras testimony properly adrnissible upon his examination in chief. In either event the Court had the right to reject it.
We do not concur in the views, urged by the counsel for the appellants, in reference to the right and power of the Court, of its own motion, to modify a prayer. To deny this right -would be undertaking-1^ change a practice long established in this State, having its foundation in reason, and well calculated to advance a proper administration of justice. The right to modify a prayer, and error in the modification made, present totally different questions. In the cases referred to by the appellants’ counsel, (6 G. & J., 399; 1 Gill, 280,) the prayers granted by the Court below were not reversed because the Court had no right to modify them, but because as granted they were erroneous. In Keener vs. Harrod & Brooke, 2 Md. Rep., 74, this question was reviewed, and we regard it as
The next question to be considered is, were the modifications of the caveators’ third and fifth prayers correct, or in other words, did the prayers as granted truly state the law of the case? The term “credible witnesses,” found in the third prayer, is now settled beyond dispute, as conceded in the appellants’ brief, to mean “competent witnesses at the time of attestation.” 2 Greenl. Ev., sec. 691; 3 Har. & McH., 513. In giving therefore to the word “credible” in the connection in which it is used in the prayer, its technical and legal signification, the Court correctly stated the law, and gave to the jury such explanation of its meaning as was doubtless “necessary to a proper understanding of the case.” The restrictions, in the prayer as modified, upon the competency of attesting witnesses, “by reason of infancy, insanity, or mental imbecility, or any other cause,” even if erroneous, could not have resulted in injury to the appellants, for the restrictions apply to the appellees and not to them. The argument, that this prayer submits to the jury questions proper only for the Court, is fully met by the Act of 1862, ch. 154. This law provides that an instruction shall not be reversed “because of a question of law having been thereby submitted to the jury, unless it appears from the record, that such objection was taken at the trial.” This objection must appear affirmatively upon the record, and is not to be left as a matter of inference. This record is silent as to any such objection “taken at the trial,” and it cannot, therefore, be now urged before this Court.— Lane, Adm’x of Horine vs. Lantz, 27 Md. Rep. —; Morrison & Kildow vs. Hammond’s Lessee, 27 Md. Rep. —. The facts stated by the Court below, in the modification of the fifth prayer, are sufficient in law, if found by the jury, to constitute
The question as to the onus probandi, where the issue is testamentary capacity, has been a great deal discussed by both Judges and text-writers, and has furnished an occasion for the display of much learning and ingenuity. The numerous decisions upon the subject, in this country, are by no means uniform, and many of them are in direct conflict, so that any attempt to reconcile them would be hopeless. They all, however, agree upon the general proposition, that sanity is presumed by law. But, in some of the States, it is held, that this general presumption does not apply to last wills and testaments — they forming an exception to the rule — and that therefore a party propounding a will must not only prove execution, but must also offer positive proof of capacity. 22 Maine Rep., 438; 24 Maine Rep., 162; 2 Gray, 524. A different rule, however, is recognized in most of the American
The practice in this State has been in conformity to these views of the law. The caveators have always taken the position of plaintiffs, and have had the right to open and close the case. Brooke vs. Townshend, and others, 7 Gill, 24, is conclusive upon this question of practice. In the Court below the caveatees claimed the right of opening and concluding the argument before the jury. The question coming before this Court upon appeal, Mr. Justice Maxitut, in delivering the opinion, says, “the issues in dispute and .transmitted to the County Court for the determination of a jury, are predicated on an affirmation of facts, introduced for the purpose of impeaching the will, by the caveators on the one side, and a negation of those facts by the caveatee in his answer. And it appears to us to be perfectly clear, that in a case thus situated, the caveators are to be regarded as the assailants of the will, as the actors who originated this proceeding, and who were therefore entitled to be placed upon the record in the attitude of plaintiffs.” This ease also decides, that the factum of the will being conceded by the pleadings, the will must be placed, by the caveators, in evidence before the jury. The Court refrained from expressing any opinion upon the “presumption of its validity,” as they considered the question a mere abstract one, in the form in which it was presented by the exception. But the reasoning of the Judge, and the rulings upon the first two exceptions can lead to no other conclusion, than one in favor of the presumption of mental capacity, after the factum or execution of a will is admitted, or proved, if put in issue by the pleadings. That the law may be consistent in all its parts, the true doctrine must be, that whenever satisfactory
The remaining questions, arising upon the various prayers of the caveatees, which have been excepted to, are readily disposed of by reference to adjudicated cases. The first prayer is fully sustained by the case of Mason vs. Harrison, 5 Har. & Johns., 480, and conforms to the views already expressed upon the modification of the caveators’ fifth prayer. The fourth, sixth, seventh, eleventh, twelfth and thirteenth prayers, as applicable to the evidence in the record of this case, contain familiar principles of law,'so firmly established by numerous and uniform decisions, that it is now too late to call them into question. 1 Hagg., 577; 3 Ser. & Rawle, 269; 3 Wharton, 137; 22 Wendell, 540; 1 Green’s Ch. R., 88; 5 Johns., Ch. R., 159; 5 G. & J., 301; 3 Md. Rep., 500; 20 Md. Rep., 387; 1 Wm. Black, 365, 416; 2 Hagg., 211, 558.
Rulings of the Court below affirmed.