Pegg v. Warford

| Md. | Jun 15, 1855

Mason, J.,

delivered the opinion of this court.

The first exception presented by this record, relates to the witness, Rachel J. Warford, a devisee and legatee under both of the wills of Miss Colvin. As such, she was supposed to be incompetent to give evidence, upon the ground of interest. Before appearing as a witness, she had duly executed two instruments or deeds, purporting to convey all her interest under said wills. We have no doubt that those papers were duly and •legally executed, and that they were, upon their face, sufficient in law to pass the whole interest or title of the grantor. It was, however, with some show of reason, contended, that those deeds having been made merely to restore the competency of the witness, and not being bona fide conveyances, are to be regarded as a fraud upon the law, and therefore not. effectual to accomplish the purpose intended. Though we have no doubt that such was the design of this transaction, still this court, cannot assume as a legal fact, as the case is now presented, that the deeds in question were not executed in good faith. But whether they were or were not, they are sufficient forever to conclude the grantor from assailing them upon any such ground, and for this reason her divestiture of all interest under these testamentary papers, may be said to be complete, by virtue of the deeds in question, and therefore she is a competent witness.

Besides, this practice, by which witnesses have been restored to competency at the trial, by executing releases, deeds, or other instruments, has so long prevailed in Maryland, and been so long sanctioned by all our courts, that it may now be regarded as so firmly established as not. to be disturbed, however disposed we might, be to discountenance it, if it were now for the first time resorted to. These views, we think, do not conflict with the principle settled in the case of Crawford vs. Brooke, 4 Gill, 213.

We see no error in this exception.

The second exception relates to the testimony of the witness Shrope. When the caveatee proposed to examine this witness, he was objected to by the other side, but the record does not disclose upon what, ground the objection then rested. Such an objection, at such a time, must go to the competency of the witness, and not to the admissibility of his testimony, for until the evidence is offered, no question of admissibility could arise. The legal presumption being in favor of the competency of every witness produced on the stand, no objection to the competency of such witness should be entertained, unless the party making it discloses at the time the ground upon which the objection is based. A mere general, indefinite objection will not avail. Hence the objection in this case, to Shrope, was improperly made, and the caveatee was not bound to state any special purpose for which he was offered, or to show, until the contrary was at least prima facie established, that the party was a competent and legal witness. The facts to be disclosed by this witness, if admissible for any purpose, might have been offered generally, as all legal and pertinent evidence for the most part may be offered. Goodhand vs. Benton, 6 Gill & John., 488. But the caveatee did not avail himself of his legal rights in this particular, but proceeded to assign three several objects in the alternative, for which the evidence was offered, each of which, in the then aspect of the case, was a legitimate subject of proof. By the case of Goodhand vs. Benton, just cited, it may be regarded as settled, that if evidence offered for a particular purpose, be inadmissible for that purpose, though admissible generally, or for some other object, it may be properly rejected. Acknowledging this principle to be sound, it would follow, that if the evidence of Shrope had been inadmissible for all the special objects for which it was tendered, though perchance it might be legal evidence for some other purpose, it should have been rejected; and th.e appellants contend that the principle should be carried to the extent of determining that unless admissible for each and all the several purposes for which it was offered, it should not have been received, and this is the main point involved in this exception.

The testimony of Shrope, if applicable at all to the issues in the case, might have been offered generally, as we have already shown. If it were competent testimony for any purpose, it must be presumed to have been for one or the other .of the subjects for which it. was alleged to be offered; at least no attempt was made to use it for any other. If it. could have been offered for no other purpose, does it not follow that th.e offer was virtually a general offer, even though, in point of fact, (he testimony may not have been legally applicable to all of the points to whi.ch it was declared to relate? If there b.e any reason why the omission to mention all the purposes for which the testimony might be applicable, when you have attempted to name some, would be fatal to its admissibility for the purposes not mentioned, it must be because the opposite party might be thereby misled, and prevented from fortifying himself with rebutting testimony upon th.e point, in reference tp which he may have been led to believe the testimony was not to be used. While the omission to mention all the purposes to which this testimony might relate, might have such an effect, it is difficult to imagine why such a result, or why any other inconvenience could follow from enumerating among the proper purposes for which testimony was offered, others for which it was not. The question resolves itself then into this, was the testimony admissible for any of the purposes for which it was offered ?

An attempt had been made on the part of the caveators to show, by Mrs. Ellicott, that Miss Colvin, the testatrix, had been deceived by false representations made by Colvin War-ford, as to the pecuniary condition of Elisha Warford, the father of Mrs. Ellicott, by which the latter lost a legacy which she supposes she would otherwise have received. It is said he represented Elisha Warford to Miss Colvin as being worth $100,000. If this were a fact, or if he honestly believed it to be a fact, there was no impropriety in Warford’s having mentioned it to Miss Colvin, let his motive for doing so be what it may. The caveatee offered Shrope, at this juncture of the .case, as he stated, “for the purpose of contradicting Mrs. Ellicott, or impeaching her, by showing that she was mistaken as to the time of said conversation, if any was had, or that the statement of said Warford, in said conversation, if it was had, was true.”

“The caveatee then proved by said Shrope that he was one of the assessors of one of the townships of Hunterdon county, New Jersey, where Elisha Warford, the father of Mrs. Ellicott, resided; that he had been assessor of taxes for nine years,once in 1840 to 1846, and was again appointed in 1850, and has continued to act as assessor from that period until the present time; that in 1852 Colvin Warford called upon him to ascertain what was the amount and value of Elisha Warford’s estate, that Elisha Warford was going security upon a bond in Maryland; that witness showed to Colvin Warford the assessment. of Elisha Warford’s estate, which was ten thousand dollars worth of real estate, and that he owned land in other places; that his personal estate was valued at ten thousand five hundred dolíais, clear of all debts due by him; this amount being handed in by Elisha Warford, and witness concurring with him in that sum, he was accordingly assessed therewith; that he was assessed with debts due him on bonds, mortgages and notes to the amount of ten thousand dollars, and that his name or boud would be good in that county for thirty thousand dollars; that the defendant never called on wilnessat any other time than that above mentioned, for the purpose of ascertaining the amount of Elisha Warford’s estate, nor did he at any other time give to said Colvin Warford any other statement than that above mentioned.”

To the admissibility of all of which testimony of said Shrope, for the purpose for which it was offered, the counsel for the caveators objected, but the court overruled the objection and permitted the evidence to go to the jury.

One of the purposes, then, assigned for offering this testimony, was to show that this statement of Warford was made in good faith. The issue thus collaterally arising was simply, was or was not the statement true, that Elisha Warford was worth $100,000? Nothing could be clearer than that if each of four witnesses had proved a separate estate in Warford, respectively worth $25,000, or more, that the affirmative of the issue would be established. To prove, as Shrope did, that Watford was worth $30,000, “and that he owned land in other places,” is certainly a step, and an important step, towards establishing the issue in dispute. It was for the jury to say whether the whole amount of $100,000 was made up or not. Shrope surely proved a material part of that sum, and his testimony was therefore clearly admissible. This precise point was determined in the case of the Plank Road Co. vs. Bruce, 6 Md. Rep., 457. In that case the plaintiff was prevented by the inferior court from offering evidence to establish a part of his case, unless he showed in advance his ability to prove his whole case. This court pronounced this ruling erroneous, as the testimony offered was per se admissible, and its insufficiency to establish the whole case, was a question to be determined by the jury, upon a prayer properly framed. In that case the court say: “ These questions cannot arise upon the admissibilily of evidence, but must be presented by prayers after the evidence has been closed.” See, also, Nailor vs. Bowie, 3 Md. Rep., 251.

But it has been said, that as this evidence was received for all or either of the three purposes for which it. was offered, unless it was legally applicable to each, the jury might have been misled, and applied it to one of the purposes to which it did not relate. To avoid such a result, it was the duty of the counsel objecting to have pointed out specifically the purpose to which the testimony had no legal application, and to ask its exclusion for such purpose. A general objection to testimony which is per se applicable to the case for any purpose, will not be sustained, though inapplicable for other purposes; and such general objection would leave the testimony to go to the jury as if no objection had been made at all; in other words.it would be virtually an offer generally of competent testimony. Under such circumstances, suppose, in argument before the jury in this case, the counsel for the appellee had endeavored to show that, besides the testimony’s tending to establish that the statement of Warfotd was true, it also contradicted the previous statements of Mrs. Ellicott, when, in fact, if it had been offered solely for the latter purpose, it would have been rejected as illegal evidence, what would have been the effect? Could the judgment have been reversed upon the assumption that the jury made an improper, instead of a proper application of the evidence? Surely not! We must assume, where evidence has been offered generally, that it will be applied by the jury to the purposes to which it is legally applicable;, and if counsel wish to guard against the contingency of a misapplication of the evidence by the jury, they should ask the court, as has been already said, to point out. the branch of the case to which the evidence is not to be applied.

Again, it has been said this testimony was not admissible for the particular purpose of showing that, in 1848, Elisha Warford was worth $100,000, because it did not relate to that precise period, but referred to his condition in 1850 or 1852, and the case of Keedy vs. Newcomer, 1 Md. Rep., 241, is relied on to support this view. The cases are different in several particulars. In the case cited, the testimony which was excluded was primary evidence offered by the plaintiff to support his case. He had sued the sheriff, the defendant, for a false return of nulla bona to a ji.fa. The evidence was excluded because the precise time when the debtor had property was the very essence of the issue, while the testimony related to a period more than a year removed. The issue in the present case is not so much the precise time when Mr. Warford was worth $100,000, as it was the truthfulness and honesty of Colvin Warford’s statement upon the subject. And again, in the case before'nsy the testimony was rebutting evidence; and it must be further remembered, that the testimony of Shrope was not the only evidence in the case upon this point. Mrs. Ellicott, the caveator’s own witness, to refer to no other, furnishes a most pregnant fact upon this part of the case. When Miss Colvin told her of the statement of (he extent of her father’s fortune, as a reason for not giving her any thing, she did. not deny it. This circumstance might have been regarded by the jury as virtually an admission of the truth of the statement, and we think that upon this evidence, and that of Shrope alone, the court would have been right in submitting to the jury the question of whether Elisha Warford was or was not worth $100,000. As to the sufficiency of this evidence to establish the fact, we say nothing; it was for the jury alone, upon a properly framed prayer, to say whether the issue was proved or not. We are of opinion that the caveators have secured all they had a right to ask under the law, in the then aspect of the case, by having had granted by the court below the following prayer, which, we think, covers this entire branch of the case:

“ If the jury find from the evidence, that Rachel Colvin, in excluding Mrs. Ellicott from the will of 1848, was influenced by the representation of Richard C. Warford, that her father, Elisha Warford, was worth one hundred thousand dollars, and shall further find that such representation was untrue, and that the will of 1848 was the result of such misrepresentation, then the verdict on the second issue must be for the caveators.”

The third exception relates to the refusal of the court to grant certain of the caveators’ prayers, which relate to the wills of 1845 and 1847. The ruling of this court upon the two previous exceptions, render any decision upon the third unnecessary.

Upon a proper state of pleadings and evidence, and upon correctly framed prayers, the validity of the will of 1848 was distinctly drawn in issue upon this trial, and sustained by the verdict of the jury. That will revoked all prior wills. Does it not therefore follow, that all the questions presented in this record, as to the wills of 1845 and 1847, become wholly unimportant and valueless in this aspect of the case? What matters it, whether the will of 1845 was revived or not by the cancellation of the will of 1847? Or what matters it, whether the will of 1845 was surreptitiously withheld or not from Miss Colvin by Warford? These all might well have been all-important questions, if the will of 1848 had not been sustained. But there being no error in the law, as disclosed by this record, upon which the will of 1848 was sustained, we are not willing, for the purpose of granting a new trial in regard to that will, to overrule the court below upon questions wholly immaterial and irrelevant.

Judgment affirmed.

Ecceeston, J., dissented-.