Moore v. Moore, 47 App. D.C. 18

Moore v. Moore

47 App. D.C. 18 | D.C. Cir. | 1917

Mr. Chief Justice Smyth

delivered the opinion of the Court:

Tlie first we shall notice is the claim that the court erred in sustaining an objection to a question put to the witness Moore, as to whether she would be willing to enter into a contract with the decedent. She answered, “Well, I don’t know.” No motion was made to strike out the answer. The court expressed the opinion that the question was objectionable, and said, “I will sustain the objection.” But tlie answer was permitted to remain. Anyhow the question was improper. It was put on the theory, the appellant says, that he wanted to test the witness’s opinion; she having said in answer to a question by the court, that in her opinion the decedent was of sound mind at the time she executed the will in question. In other words he desired to cross-examine liis own witness, for he had called her. This was not proper, and the court was right in its action, even though we assume that the answer was stricken out. (Turner v. American Secur. & T. Co. 29 D. C. 460.) Besides, the fact that a person might be unwilling to enter into a contract with another does not tend in any way to prove that the latter is of unsound mind. There may be, as the court below observed, many reasons besides that of mental incapacity for doing so. This also disposes of the objection to tlie ruling of the court in striking out the answer of the witness Donokoe that he “would not want to make a contract with her,” the decedent. Moreover his answer was not responsive to the question propounded, and should have gone out for that reason as well.

Complaint is made because the court refused to receive the testimony of the witness liidgeway, given by deposition, that John A. Moore, one of the devisees, had said after the death of decedent that tlie will in question “was easily broken.” It does not appear upon what ho based this opinion. The jury was not charged with tlie duty of finding whether tlie will was valid or invalid. Its authority vras limited to answering certain specific questions among which the validity of the will was not one; that was a matter for the court, not for the jury. There' fore, if for no other reason, the opinion of Moore could not have aided the jury and hence vTas properly excluded.

*22The next question presented for our consideration was whether the purported will was executed and attested as required by law. Appellant in his brief fails to indicate, wherein there is any defect-in this respect. The. certificate is in proper form. Both witnesses to the will testified that the decedent signed it in their presence, and they at her request signed it as . witnesses in her presence and in the presence of each other. We think this is sufficient.

Was there any evidence tending to show that the decedent was not of sound mind on the Ith of July, 1915, the date on which she made the purported will? She was sick in April, May, and June. A trained nurse was procured for her a short time before the will was made, and a physician attended her for about three months. Sometimes he would come more than once a day. During a whole summer “she was bad off,” according to one witness. On the day the will was signed a sister of the decedent called but did not sec her. Just why is not disclosed. The decedent was friendly with all her relations. She told her sister Mrs. Ridgeway, more than once in June or July of 1915, that she was not going to make a will. Some three weeks‘after the will -was made she said to her sister Mrs. Larrick, that she had made her will. In April, 1916, about nine months after this, she asked the same sister to call upon their brother, the- appellee, and reqoest him to show her decedent’s will. Elizabeth A. Moore, another sister, but not one of the beneficiaries, who had lived with the decedent for fourteen years, inclusive of the time the will was made and afterwards, testified that in October, 1915, three months after the will was made, decedent was able to get up and down stairs unattended, and further said, in answer to a question of the court, that in her judgment decedent was of sound mind at the time the will was made. This is substantially all of the testimony on the subject of mental incapacity. It does not disclose anything by which the jury would have been warranted in finding that the .decedent lacked mental capacity to make, a will.

Appellant says that, so far as the testimony discloses, the testatrix knew nothing of the contents of the will. What we have already shown makes clear that wo cannot assent to this.

*23Finally it is urged tliat the purported will is tlie result of undue influence practised by John A. Moore, appellee, and his sister, Melita C. Spellliouse, or by one of them or by some other person. The evidence which the appellant claims should have been submitted to the jury upon this question may be summarized thus: Seven days after the will was executed, the decedent delivered to “John A. Moore, Attorney,” the appellee, a check for $8,155.04. lie had been attending to her business for many years. Mrs. Ridgeway testified that tlie decedent had told her that she had loaned money to the appellee, hut that he would pay it hack out of the rent. He was seen handing to the decedent a check to sign and receiving checks drum her. Frequently lie visited the office of Mr. Balderston, the attorney who drew the will. Miss Helt-man was asked by Air. Balderston to witness the will, and she consented. As she and Air. Balderston were on their way to the house of the decedent, they stopped at the place-of business of John A. Moore, hut she did not hear the conversation between Moore and Balderston. In the room at the i ime decedent signed the will were Aliss Heltman, Air. Saunders, and Elizabeth A. Moore, the sister of the decedent, who received nothing under the will. The latter had, therefore, every opportunity to observe whether or not improper influence was exercised upon her sister, at the time the will was signed, but she failed to testify that there was. We entirely agree with the learned trial judge that this evidence does not disclose even a suspicion of wrongdoitig.

Upon all questions presented by the record, the judgment of the lower court is correct, and is affirmed. A ¡firmed.