Baugher v. Gesell

Jones, J., delivered the opinion of the Court. This is an appeal from rulings of the Superior Court of Baltimore City in a trial of issues involving the validity of the will of 'John Zehner, late of Carroll County, deceased. The rulings here under review were made in a second trial of these same issues. Those made in the first trial were before this Court in the case of Gesell v. Baugher, 100 Md. 677 , and the views which controlled the decision in that case will largely influence the decision of this.

These issues are four in number. The first is whether the purporting will of the said testator “was signed by the said John Zehner or some other person in his presence, and by his express direction or attested and subscribed in his presence by two or more credible witnesses.” ⁴⁵² Second. Whether said “will executed by the said John Zehner,. when he was of sound and disposing mind and capable of making a valid deed or contract.” Third. “Whether the said John Zehner at the time of the execution of said paper-writing knew the contents thereof.’’ ' Fourth. “Whether the execution of said paper-writing was procured by undue influence,” &c. The record brings up two exceptions.

The first is to the refusal of the trial Court to allow a hypothetical question propounded to a witness who was called as an expert; and the second is to the action of the Court upon the instructions to the jury, Of these there were four — each issue being made the subject of a specific instruction. As to the first issue the jury were instructed “that by the uncontradicted evidence in this case” the purporting will was signed by the said John Zehner in the presence of two credible witnesses, and attested, by the said witnesses in his presence and that therefore the verdict of the jury must be for the defendants on the first issue, and their answer td the same should be “Yes.” As to each of the other issues the Court instructed that there was no legally sufficient evidence in the case to sustain it; and that upon the verdict of the jury must be for the defendants (appellees.) The questions raised by the second exception will be considered first. No objection has been urged to the instruction given as to the fourth issue and as it is very clear from the record that none could be with any basis of support, that need not be further noticed. It is insisted there is error in the instruction respecting the first issue in that the Court, instead of affirming that the finding of the jury must be for the defendants upon the uncontradicted evidence pf the facts therein indicated, should have left it to the jury to find such facts and to render their verdict for the defendants upon the hypothesis of such facts being so found.

It may be conceded that the more appropriate form of instruction as to the issue under consideration would have been the one indicated in this contention of the appellants, yet under the circumstances here and upon the evidence we can ⁴⁵³ not hold that there is reversible error in the instruction as granted. The jury could by no possibility, upon any rational basis, or without arbitrary disregard of plain, direct and unequivocal evidence have made a finding upon the issue in question contrary to that which the instruction under consideration required. The only testimony in the record in reference to the inquiry involved in the first issue is that given by the subscribing witnesses to the will in question, Mr. Miller and Dr. Billingslea. This testimony is upon the part of Mr. Miller that he signed the will as a witness “in the presence of Mr. Zehner and of Dr. Billingslea,” and that he and Dr. Billings-lea signed as witnesses “in the presence of each other and in the presence of John Zehner;”-and upon cross-examination upon being asked how long Dr. Billingslea was in the room, in which the will was signed and witnessed, answered, “he was in there long enough to see Mr. Zehner sign his name and to sign his name and to see me sign my name.” When asked how he and Dr. Billingslea happened to sign the paper he said “Mr. Zehner asked us to sign it. ” Dr. Billingslea testified, “I signed it (the will in question) in the presence of Mr. Zehner and Mr. Geo.

A. Miller.” He further said that Mr. Miller had come to him in a room adjoining that in which the signing was done and said to him “that Mr. Zehner wanted me (him) to witness his will;” and that when he (the witness) went into the room in which he signed the paper Mr. Miller said to him in the presence of Mr. Zehner that “Mr. Zehner wanted me to witness his will.” With nothing to contradict or discredit this testimony there was but one rational finding for the jury to render on the first issue and this was the one rendered under the -instruction of the Court. The testimony adduced in the case has principal reference to the inquiry as to the testamentary capacity of the testator involved in the second issue. Dr. Billingslea, after testifying to the factum of the will, was called as a witness by the caveators as to this inquiry, and his testimony is much relied upon to sustain the contention that the Court below erred in the instruction to the jury upon the evidence relating to the sec ⁴⁵⁴ ond issue. The testimony has therefore required careful examination.

Dr. Billingslea attended the testator in his last illness beginning his attentions on the 4th of April, 1902. On the 17th of April the will in question was executed and the testator died May 19th, 1902. Dr. Billingslea testified that the testator first consulted him professionally on the 4th of April, 1902, when he came to his office early in the morning and called him out of bed; that he then “found him (the testator) in a very serious condition, he was dropsical and very short of breath, he had a complication of troubles rendering him exceedingly uncomfortable;” that the testator came to his office several times'after this first visit, the last visit being May 1st; that he then visited him several times at his (testator’s) house prior to May 14th when he brought testator to Baltimore to a hospital; that upon his (testator’s) first call at witness’ office he saw little or nothing that called witness’ attention to his mental condition specially, “although of course like all men that are very ill when suffering when it is acute shows mentally and showed he was suffering physically as well as mentally but I (he) did not at that time consider him in a condition that he was not competent to understand what he was doing;” that was the first thing that attracted witness’ attenr tion to testator’s mental condition was when he came to witness’s office upon “a right cold morning in April or May” witness “noticed his hands were exceedingly cold” and “he was feeble” and witness asked him if he had had breakfast “and he said no” — witness then said to him “you certainly ought to have a cup of coffee” and testator said “no, those people (meaning the people with whom he was living) would poison me;” that he could not fix the date of this occurrence, but that it could not have been later than May 1st; that testator “got worse all the time, his breathing became more difficult and his abitity to get about, he was decidedly uncomfortable all the time;” and “as his disease got worse — he became exceedingly dull, you couldn’t reason with him, you couldn’t get him to take .his medicine” though witness “explained to him if he didn’t take medicine to act upon his kidneys his dropsy would get worse ⁴⁵⁵ and he would certainly be very sick, but he shook his head and spoke about his head being so ‘doom.’ ” In answer to the question “In your opinion as a physician what was the cause of his (testator’s) mental unsoundness?” the witness said, “I think it was due to the interstitial inflammation of the kidneys, probably bringing on what we call edema of the lungs, in which there is great difficulty of breathing, the blood is not properly aerated and that affects the brain. You may talk to them, you may ask questions and they will often answer you intelligently, and the moment you stop talking to them they become dull or they may ramble or think they are not at home or they are not in their room.

I have seen that in a number of similar cases and I haven’t any question that that was the trouble with Mr. Zehner. I don’t believe that Mr. Zehner was crazy in the sense the average person would understand it, I think he was only so because of his physical condition, the disease of his kidneys and heart and the other organs that were necessarily affected.” The witness then upon being asked whether in his opinion the testator was of sound and disposing mind and capable of executing a valid deed or contract at the time he executed the will here in question answered, “I don’t think he was.” Then being asked “You have said this mental unsoundness was caused, in your opinion, by his disease, what was the character of that mental unsoundness with regard to its duration, was it temporary or permanent and progressive,” he said, “well of course it was progressive but it was not permanént, what I mean by permanent is at times he would appear rational and answer questions intelligently, but when left to himself he would be in a dull, stupid condition so that he would hardly know what he was about, he was not certainly in an intelligent condition though he could answer, but could not answer anything that required thought or memory.” On cross-examination this witness was asked, “Did not you testify in the trial in this case before that on the day the will was made you say yea nor nay whether he (testator) was of sound mind that day?” and answered “If I had to make my testimony upon ⁴⁵⁶ what I saw of him that day, just for that short interval, that would be my testimony today.” Again being asked “Didn’t you say in that case you could not say he was insane that day?” answered, “I say so now from the short interview I had,” and again, “Didn’t you say on that day you thought he was?” and answered, “No sir, no sir, I never said that, I have no recollection at least of it, I said as far as I could observe that day in the short’interval I didn’t think there was, he didn’t show any evidence of any real trouble, any active trouble at least.” Again, “you had no suspicions of any trouble that day?” Answer, .“No sir, my attention was not called to anything'that' -time. ” The witness had stated that prior to being called upon by the testator on the 4th of April he had had only a speaking acquaintance with him and had, before that, had no conversation with the testator, and he was asked further in the cross-examination whether under such circumstances after having ■seen the testator, as he testified, only on the 4th, 10th and 16th of April, he was willing to swear that he was, on the 17th of April, “of unsound mind, so he could not make a c.ontract,” and answered, “I would swear it was, that suffering the same way, that the same disease he had from the very first visit he paid me, dropsical, panting for his breath and just in the condition I have heretofore described, I don’t believe he was in condition to make a valid deed or instrument, especially when that was followed in a few days by decided evidence of mental aberration.” The witness was then asked “When you witnessed that will that day did you believe him at that time of unsound mind or not?” and said, “I never gave the question a thought, I was called in hurriedly,” And was further asked “If you were or had you any idea that he was of unsound mind would you have signed that will?” and said, .“No sir, if I believed that I would not have signed it of course.” All of the testimony of this .witness w'hich, it is believed, can .bear upon the question under consideration has been set out because the question is one of importance and delicacy in ⁴⁵⁷ the case and the testimony referred to is important to its decision. Before adverting to other evidence contained in the record the testimony so set out will be considered to determine whether, as respects that, the trial Court was right in ruling that it was not legally sufficient to be submitted to the juiy for a finding of a want of testamentary capacity in responding to the second issue. The want of testamentary-capacity must, when urged as a ground for the invalidity of a testamentary act in a given case, relate to the time of the act.

Unless want of capacity, permanent in character be established by proof as existing at a time prior to the act, called in question, the presumption of capacity attends the act, and must be overcome by evidence that affords a rational basis for an inference of the want of it at the very time of the execution of such act. ioo Md. 682, 687, supra, and cases there cited. The question for the jury here, therefore under this second issue, was capacity vel non of this testator to make a will on the 17th day of April, 1902. Whatever may have