Berry v. Safe Deposit & Trust Co.

McSherry, C. J., delivered the opinion of the Court. This protracted litigation involving the validity of the last will and testament of the late George R. Berry is before us for the third time. The first appeal is reported in 93 Md. 240 , and the second in the same volumep.yóo. The pending appeal was taken by the plaintiffs, who are the caveators, the others were brought here by the defendant, the executor.

The present record contains thirty-four bills of exception. Some of them relate to rulings on the admissibility of evidence, and the last one concerns rulings on the prayers presented by the defendant and granted by the Court at the conclusion of the plaintiff’s evidence. Those prayers instructed the jury to return a verdict for the defendant upon the ground that there ⁴⁸ had been adduced no legally sufficient evidence to support the issues before the jury. It will be necessary in considering the various questions which arise to understand the precise situation of the case, and, therefore, that will be briefly stated.

Upon the filing of the caveat there were six issues framed and sent to a Court of law for trial. The proceedings were instituted by collateral kindred, the testator having left no direct descendants. The issues were in substance, as follows : The first relates to mental capacity ; the second, to knowledge of the contents of the will; the third to its execution; the fourth to undue influence; the fifth to fraud in its procurement, and the sixth is as to whether the will is the testator’s last will. After the rulings complained of on the former appeal had been reversed and the record had been remanded for a new trial the case was removed from the Superior Court to the Court of Common Pleas.

When the jury had been impaneled in the latter Court they were instructed by the trial Judge to find, and they did find, in favor of the defendant on the third, fourth, fifth and sixth issues. The first and second issues were thus left open and upon them the parties went to trial. It will be observed that as the case is now presented it is a case where a verdict has been rendered, finally determining that the assailed will was executed in accordance with the formal requirements of the statute; that there was no undue influence practiced upon the testator; that the will had not been procured by fraud, and, fourthly, that the contested paper was the last will and testament of George R. Berry. With those findings of record at the beginning of the case and with the inquiry before the jury narrowed to the two questions as to whether the testator was possessed of sufficient mental capacity to enable him to make a valid-deed or contract, and, secondly, as to whether he was aware of the contents of the paper which he signed, the plaintiffs not only offered the same evidence which they had adduced on the former trial, but much of that which had been presented by the defendant; and they then called several medical experts to the stand and offered to propound hypothetical questions to them, but those questions ⁴⁹ were excluded upon grounds that will be stated and considered later on.

The defendant put in no evidence. The predominant question as the case is presented, though it is the last one raised on the record, is this: Was there any legally sufficient evidence, apart from the proffered and excluded expert'testimony, from which a jury could rationally find that the testator was not mentally capable of making a valid will ? Now, what is the degree of mental capacity which the law requires in such a case ? We are not dealing with a question of sanity or insanity.

Whatever that mysterious malady called insanity may be, according to the theories of speculative specialists, the law, in the administration of justice both in .civil and criminal proceedings, has its own standards of mental capacity and responsibility, and to those standards judicial tribunals must look and by them they must be governed, when dealing with questions of the character now before us. By the legal standard he who is possessed of sufficient capacity at the time of executing his will to make a disposition of his estate with judgment and understanding in reference to the amount and situation of his property and the relative claims of the different persons who should have been the objects of his bounty, is mentally competent to make a valid will. Davis v. Calvert, 5 G. & J. 269 ; Jones v. Collins, 94 Md. 408 . In a word, if he has capacity enough to make a valid deed of conveyance or an ordinary contract, then he has capacity enough to make a valid will.

This standard is plain, simple and intelligible, precisely as is the law’s standard of criminal responsibility, viz., the ability to distinguish between right and wrong, and not the vague, indefinite and speculative theories of alienists who undertake to measure accountability for crime in a totally different way. Spencer v. State, 69 Md. 28 . The mental condition of an individual, whatever the cause of that condition may be, is manifested by external acts and appearances and in no other way. Is there in the record any evidence of external acts and appearances from which a jury could rationally draw the conclusion that on the day George R. Berry made his will he did not possess sufficient ⁵⁰ mental capacity to make a disposition of his estate with judgment and understanding in reference to the amount and situation of his property and the relative claims of the different -persons who should have been the objects of his bounty ?

Let us see what manner of man he was and what he did. George R. Berry made and executed his will on'the tenth .day of February, eighteen- hundred and ninety-nine, and died on March the ninteenth, following. His estate according' to the inventories filed by the executor, amounted to something over seventy-three thousand dollars. The- will contains thirty-six bequests besides a residuary clause, and goes into the ■most minute details with respect to much of his'property.

To -his own • relations he gave sundry sums aggregating nine thousand, two hundred dollars. To the relations of his deceased wife he' gave altogether twenty thousand, five hundred dollars. To friends of his wife and to his-own friends he gave nine thousand dollars. To his servants-he gave forty-three hundred dollars.

To the Boys’ Home he gave fifteen hundred dollars. Tó the Home of the Aged, two thousand dol.lars' and to the Woman’s College the' residue of his estate. - At the time of his death Mr. Berry was seventy-eight years and four months of age. He had been an active, energetic .and successful business man. He had held positions of trust and responsibility, both public-and private.

He had been a :member, of the General Assembly of Maryland and of the City Council of Baltimore, and a director of the Baltimore and Ohio Railroad Company; of the Maryland Penitentiary and of the Fireman’s Insurance Company, besides having served on -the grand jury probably more frequently than any other individual in Baltimore. There is no pretence that he was- not perfectly competent to transact business or to make a valid . deed or contract up to the date of the death of his second wife. Physically he had been a hale and vigorous man. But it is alleged a change came over him upon the . death of his wife in November, eighteen hundred and ninety-seven ; and it is from that event it is asserted his mental faculties began to fail.

There is no doubt this calamity greatly depressed him. We ⁵¹ said in the former appeal, “but if the question were before us to be determined on the evidence in the record, we.feel bound to say that we see nothing in all that has been testified to, to indicate that this great sorrow or any other cause seriously impaired his intellect or deprived him of the capacity to make a valid will.” The will in contest was not the first he had made. During the life of his wife he had signed a will wherein many of the legatees named in the caveated paper were provided for, and wherein the Woman’s College was also made residuary legatee. After the death of his wife he executed other wills; “and the record shows in all these instances that he acted with particularity, circumspection and intelligence.” On the former appeal we said and we now repeat: “If there ever was a will made .with deliberation and after careful preparation, the evidence, if worthy of credence at all, shows that the will of February the tenth, was so made.” As the case is now before us on the legal sufficiency of the plaintiff’s evidence \ye will transcribe at length the only testimony contained.in the record on the subject of the preparation and the execution of the will.

The will wag prepared by Mr. John W..Marshall, second vicerpresident of the .Safe Deposit and Trust Company, and the following is what Mr. Marshall, when called as a witness by the plaintiffs, deposed to. “I prepared a will for Mr. Berry in 1896, then one in the spring of 1898, then a codicil in the fall of 1898, then the final'will of 1899. Witness stated that the classification from which he. got the Uthman children who were legatees was handed him on February 6th, 1899, by Mr. Berry. It was a list of legacies by which I was to be guided in the preparation., of the will and the order in which they should be inserted in the will. It was not in the handwriting of Mr. Berry but was in the handwriting of Mattie Loney, his chambermaid.

At the time Mr. Berry gave me this classification, he also gave me the old will of 1898 with the codicil attached, together with various sheets of paper upon which he had written the new legacies to be inserted in the will, which he contemplated having prepared. Mr. Berry handed me on ⁵² February 6th, 1899, for the purpose of preparing his will,” the will which was executed on the tenth, “a classification in Mattie Loney’s handwriting, in which the legacies were arranged in a certain order, his old will of 1898, with memoranda on it in his handwriting, noting precisely, what changes were to be made, and separate memorandum, in his own handwriting, showing the new legacies. These papers were returned to Mr. Berry with his new will and have not since been found. On the old will of 1898 Mr. Berry noted the changes in the legacies in his own handwriting; there was no change in the will of 1898 and the present legacies to William J. Berry or Louisa C. E. Berry or Emily H. Berry or John H. Morrow, nor Iza May Berry nor Lucy C. Dorsey; the legacy to Dr. Donavin in the old will was marked out, and new legacies were left to the daughters of Dr. Donavin, Lucretia B. Donavin and Virginia Donavin, in the will in controversy.

The trust clauses were new, all in Mr. Berry’s handwriting. On a separate piece of paper, in Mr. Berry’s handwriting, was a bequest to our company of fifteen hundred dollars for John Hamilton Walker, the oldest of the Walker children. A memorandum under that, ditto, as to Georgie O. Walker ; ditto, for Martha- G. Walker, and ditto, for Sarah P. Walker, and ditto for Uthman Walker. I consolidated them into one item.” These Walker children were the children of Lucretia Osborne Walker, a niece of the testator. “The mistake spoken of, in reference to the five hundred dollars for the fifteen hundred dollars for Uthman Walker was in the Mattie Loney classification.” The witness was here explaining that in the classification of legacies made out in the handwriting of Mattie Loney an error occurred in this, that she wrote opposite Uthman Walker’s name the sum of five hundred dollars ; but on the paper which was in Mr. Berry’s handwriting that error did not appear, because there the correct sum, fifteen hundred dollars, was given.

The witness then proceeded: “The legacy to Mr. Wilkinson in the old will was the same in the present, and many minor legacies were the same in both, such as the legacy to Miss Pindell, and the legacy to Miss ⁵³ Margaret Young. The residuary clause was the same in both wills. I did not help Mr. Berry make his will other than put together the data which he gave me in the draft of the will which he executed on February ioth,i899,at the office of the Safe Deposit and Trust Company in the presence of Andrew G. Spamer, J. William Marshall and myself.” In November, 1897, Mr. Berry drew up and signed a paper certifying that he had made certain provisions in his will. That will has not been found.

On the back of that certificate he endorsed the following memorandum : “This is to certify that I have cancelled all former wills made by me and substituted in their stead the one dated February 10th, 1899, as my last will and testament, in which I bequeathed to Lucretia Berry Walker, my wife’s namesake, the sum of $2,000; I. Hamilton Walker, the sum of $1,500; Georgie O. Walker the sum of $1,500; Martha G. Walker, the sum of $1,500; Sarah P. Walker, the sum of $1,500 ; Uthman Walker, the sum of $1,500. George R. Berry.” The figures named in this certificate tally precisely with those set forth in the will of February the tenth. On the twenty-third of January, 1899, or eighteen days before the will was signed Mr. Berry made out in his own handwriting a complete inventory of all his real and personal estate, affixing to the various shares of stock and to the bonds which he owned their then market value and putting upon the real estate and the contents of his dwelling house estimated values. Included in this inventory were two hundred and fifty shares of City Passenger Railway stock and two hundred and fifty-two shares of Consolidated Railway stock.

These five hundred and two shares of stock he sold on February the tenth, after making his will and received therefor the sum of thirty-one thousand, nine hundred and fifty dollars which was deposited to his credit with the Mercantile Trust and Deposit Company. This transaction involved about three-sevenths of the testator’s estate and it has not been suggested by any one connected with it that Mr. Berry was incapable of making it. The fact is he did make it. Against all this overwhelming evidence showing in the ⁵⁴ most positive manner that George R. Berry exhibited on February the tenth, 1899, judgment and understanding as well as exact knowledge in reference to the amount and situation of his property and in reference to the relative claims of the different persons who should have been the objects of his bounty, to say nothing of the strong indications in the same direction which the numerous provisions of the will itself furnish, the plaintiffs adduced a number of independent and disconnected incidents in the life of the testator, that had occurred both before and after the execution of the will, with a view of showing that at the time he made the will he was mentally incapable of making a valid one.

Nearly all of those incidents were before this Court on the former appeal. They were then discussed and excluded as the bases for hypothetical questions. It would be a wearisome task to go over all of them again,' ' They are trivial, insignificant and of no probative value as respects the testator’s mental capacity on February the tenth, 1899, when the will was made; and they.are utterly insufficient to- overthrow the plaintiff’s own affirmative, proof establishing that capacity. It is not pretended that George R. Berry was permanently insane.

Even if the incidents alluded to.had.a tendency to show that at times owing to transient causes, his mental faculties were clouded, they did not show a permanent impairment, far less did they show any impairment, at the time the will was executed. Some of the moré prominent of these incidents will now be mentioned and they will serve as illustrations of all. Thus, it was shown that Mr. Berry had been addicted to excessive smoking, but that was thirty years before the will was made. Even had the habit been contemporaneous with the making of the will it would have proved nothing.

Would any Court' permit a jury to infer that a man was mentally incapable of making a will because he smoked fifteen cigars a day? It was also proved by three witnesses that Mr. Berry many years ago and frequently in later years had stated that his grandfather, Charles Constable, borrowed half a million of dollars in his lumber business from Robert Oliver and that this was in the first half ⁵⁵ of the last century. The record contains evidence that Charles Constable did borrow-money from Robert Oliver. Certified copies of the accounts in the estate of Robert Oliver deceased show that on December 31st, 1834, there was due to Oliver’s estate by Charles Constable $15,587.70.

How much more Constable had borrowed does not appear. Nor does it appear from what source Mr. Berry got the impression that so.large a sum as one-half million of dollars had been-loaned. to:his grandfather.,. Had he been told so? Or, did he simply: imagine it ?

It has not been shown that it was a delusion — that he believed it to be true in. spite of evidence which, should-, have .convinced him that it was a. fiction. Without anything, to indicate, whether Mr. Berry merely, repeated what he had; ;heard, or , whether he imagined the whole, story, or was .simply, mistaken as to the event, a jury would, riot have been justified in concluding that this incident indicated a want of testamentary capacity, especially when the -incident itself had no.relation tp: the will-or to.the making of-the will. In 1896 Mr. Berry said in the presence of several persons that he had-given-;his;.h,ous:e on -Eutaw Place to his wife, “that he believed, in being-honest, in.-everything, that he had given his Eutaw; Pla.ee,house to his wife and that if he went to the bank tomorrow to borrow any money he would certainly tell them he .had given her the house before he secured the loan.” His wife was then living. When Mr. Berry died the title to the house.stood in his own name.

There is no evidence to show that he had not given her the house. She may have held an unrecorded deed for it — there is nothing to indicate that she did not. Could a jury- be permitted to guess that she did not and then to infer from that guess that in 1896 Mr. Berry was laboring-under a delusion with respect to the ownership of a portion of his property ? It is. true that after the death of his wife in November, 1897, he failed physically.

His walk became less elastic and degenerated into a shuffling, gait; but can a jury be allowed to say -from that circumstance that he no longer possessed the requisite capacity to make a will? “Neither age, nor sick-, ⁵⁶ ness, nor extreme distress, nor debility of body will affect the capacity to make a will if sufficient intelligence remains.” Higgins v. Carlton, 28 Md. 115. One of the witnesses was asked whether in November, 1898, Mr. Berry’s manner impressed the witness as being silly. There was no foundation laid for such an inquiry even if it had been competent in any event. It was the mere, naked opinion of the witness which was asked for, and it would be exceedingly dangerous to allow such opinions to go to a jury.

Such evidence is open to many objections. It is not the statement of a fact but simply the impression of the witness which there is no means of controverting. ' If a witness should swear falsely as to an impression it would be impossible to convict him of perjury because there would be no method by which the falsity of the statement could be shown. It is very easy to say of a dead man that at some period in his life he impressed a witness as being silly, and if the validity of wills is made dependent on such impressions it would not be difficult to vacate any will. Nor can the fact that a testator has made a disposition different from the one he antecedently stated he would make be treated as evidence of his inability to make a valid deed or contract.

Not one of the various incidents contained in the record tended to show that Mr. Berry had not the requisite mental capacity to make a valid will at the time he did make his will. Can it be possible that a combination of all of those incidents will establish a conclusion which no one of them tends to prove ? The sum of any number of zeros will always be zero, and this is true in the law of evidence as well as in arithmetic. You may combine as many independent circumstances as you please, and if no one of them has any legal tendency to establish the fact to be proved then all of them taken together can have no greater probative value.

If each proves nothing, all can prove no more. To assert the contrary is to state that the aggregation of a number of incompetent facts is, by force of that mere aggregation, sufficient to establish a result which no one of the same facts considered by itself has even the remotest tendency to prove. An. & Balfo, Short L. R. R. ⁵⁷ Co. v. Pumphrey, 72 Md. 87 . This must be distinguished from the other proposition, that a fact which tends to prove the issue, though- in itself slight and if standing alone insufficient to establish it, is still admissible.

With positive, direct and unequivocal evidence adduced by the plaintiffs themselves and showing conclusively that George R. Berry when he made out the memoranda for his will and afterwards' when he signed that will fully and accurately knew what property he had and'that he intelligently selected the persons he wished to be his beneficiaries, and further showing that oil the very day he executed the will he concluded contracts affecting three-sevenths of his entire estate, no jury could rationally have inferred from the collateral circumstances alluded to and which were not coincident with the making of the will and threw no light upon his mental condition at that time, that he was, when hé signed- the will, unable to make a valid deed or contract. It was; therefore, the clear duty of the Court to withdraw the case from the consideration of the jury and its ruling to that effect in the thirty-third bill of exceptions was right, unless the plaintiffs were entitled to have had the medical experts express their opinions on the facts in evidence. And this brings us to the inquiry: Was the Court right in refusing to allow the medical experts to draw inferences from the circumstances testified to by the