Birchett v. Smith

Bond, C. J., delivered the opinion of the Court. This is an appeal by caveators of a will, from rulings during a trial of issues of fact sent by the Orphans’ Court of Baltimore City to the court below, including rulings on prayers by which the jury were directed to find against the appellants’ contentions. Henry C. Barranger, the testator, died at the Mercy Hospital, Baltimore, on December 30th, 1924, of heart failure and hypostatic congestion of the lungs, or hypostatic pneumonia, which is described as a filling up of the lungs upon long confinement to bed, of old patients, especially, and as due to old age and to a condition of the heart. The testator was eighty years old, and was brought into the hospital on Movember 22d, with an infection of the little toe of one foot, and the region just above it.

Tho infection became gangrenous later, either because operations on the foot interfered with circulation of the blood, or as a result of age. Otherwise, the testator is described by physicians who testified, as having had the ordinary characteristics of old age; hardened arteries and a trace of inflammation in the kidneys. The infection in the foot caused much pain at times. It was dressed twice a day.

The daily treatment beyond that is not shown in the testimony, except that during the nights of December' 23d and 24th, when the testator suffered an attack of heart failure, he was given doses of sedatives or opiates, and heart stimulants. It was as a result of the heart attack during the night of December 23d to the 24th, and after having recovered somewhat from it, that the testator asked one of the relatives who had been called to the hospital, to send for Mr. McGrath, his attorney. Mr. McGrath was called on the telephone dur ³⁷² ing the same night, went to see the testator in the morning, and then received instructions for preparing the will. He called to see the testator again in the afternoon, and later, at about 7:30 o’clock in the evening of December 24th, brought the completed draft of the will, and it was executed in the presence of Mr. McGrath, and of two nurses who acted as attesting witnesses.

Six days later the testator died of another heart attack. . The issues were the four usually submitted in these cases: (1) whether the will was executed by the testator and attested and subscribed as required by law; (2) whether at that time he was of sound and disposing mind, capable of executing a valid deed or contract; (3) whether the contents were known to the testator or understood by him; and (4) whether the execution of the will was procured by undue influence exerted upon the testator. At the conclusion of the caveators’ testimony in chief the jury were directed to answer against the caveators’ contentions, all the issues except that concerning mental capacity of the testator, and verdicts were then rendered accordingly. And at the conclusion of all the testimony a verdict 'against the caveators was directed and taken on the issue concerning the mental capacity.

The caveators, now appellants, contend that there was some evidence to be considered by the jury on the issues concerning mental capacity of the testator and on that concerning procurement of the will by undue influence. And they contend also that in rulings on the admissibility of evidence there was material error, requiring a new trial for its correction. Nearly all of the testimony in the case was directed to proving that the testator was, at the time of executing the will, deprived, by his illness, of his usual and sufficient mental capacity. The incapacity sought to be proved was not the insanity usually asserted, that is, permanent or habitual lack of mental capacity; all the witnesses agree that up to the last sickness, and at times, at least, during it, the ³⁷³ testator was an uncommonly vigorous man, mentally and physically.

What was sought to he proved was an interruption or deprivation of this, as an effect of the illness. Xone of the witnesses produced to prove it were present at the execution of the will'; all who were present, Mr. McGrath and the two nurses, testify to full and sufficient capacity then: and the physicians who were in touch with the case agree in this. But witnesses who had known the testator familiarly before his illness, and who visited him during the five weeks he Was in the hospital, testified that on each visit he seemed to be weaker than before, that be dozed off or slept frequently, sometimes dozing off during conversations, and failing to fake up tbe conversations where he left off. The nurses testified that during the ten days before his death lie was delirious at times, and a note was made on the bedside chart at 2 A. M. on the morning1 of December 25th, or about seven hours after tbe execution of tbe will, that “tbe patient is irrational, talks a good bit, did not know where he was.” Another witness, Erost, testified to a delirious or flighty condition on December 26th, two days after the execution of the will.

The testator failed to recognize- some of the witnesses who called, gave the wrong name to one, and once either referred to an annt by a wrong name or overlooked tbe fact that tbe aunt of that name had died long before. His sister’s name is 'also given wrongly in the will. There was, also, testimony on behalf of the caveators that at times, during the illness, the testator’s face twitched, and that his jaw would fall to the side, especially when he fell asleep. Richard T. Birchett, 'a' nephew of the testator, said that when he called about two hours before the will was executed, and when Mr. McGrath was having a preliminary discussion of the will, the testator’s eyes were wild and he was-trembling.

The will contains fourteen distinct legacies, outside of the residuary clause, and other usual clauses, and is, obviously, a will that was carefully planned. Tbe testimony of Mr. McGrath is that the testator alone, on the day the will was. ³⁷⁴ executed, arranged this distribution, after a careful review of his assets. It ha’s been argued that the giving of a comparatively small legacy in the will to a sister of the testator, the only relative of the same generation, ninety-four years old, and deaf, dumb and blind, and whom the testator held in great affection, is a circumstance which casts suspicion on the testator’s capacity, and is, therefore, to be weighed in connection with the other evidence. Davis v. Calvert, 5 G. & J. 269, 300 .

But the admitted facts that the sister was as well taken care of by her son, Richard T. Birchett, as she could be, and that her son, who must very soon receive anything given to her, had already received gifts from the testator, was in comfortable circumstances, and not on entirely good terms with his uncle, together with the fact that others, who were preferred by the testator, needed care and would naturally receive his aid, seem to' us to offset the suggestion, and to leave no such ground for reasonable suspicion; and we think that argument may be left aside without further discussion. There was testimony of several intimations made by the testator of 'an intention to include various other persons as legatees. Stewart v. Redditt, 3 Md. 67 , 78 ; Malone v. Ma lone, 148 Md. 200, 206 . The testimony just outlined, of conditions and actions observed during the testator’s illness, is answered for the caveatees by many other witnesses, familiars of the testator, who say that on their visits they observed no interruption of mental capacity, although all agreed that the testator grew physically weaker as time went on.

One of the physicians says that he never found any delirium on his visits. This testimony we need not examine now. But in considering the legal value of the testimony of witnesses for the caveators, other facts stated by them, conflicting somewhat with tho conclusion sought to be established, are to be weighed. Except for the failure to recognize some witnesses, the miscalling of two names, and two specific instances of irrational or ³⁷⁵ delirious talk, all of a large number’ of conversations retailed by these witnesses appear to have been perfectly rational, and no witness suggests th'atfc they were not.

One of the most important witnesses, Bichard T. Birchett, for instance, testified that, at five or half-past five o’clock, when he last saw the testator before the execution of the will (two hours before, in fact), he went in to the testator after Mr. McGrath left, and said, “Do you want to see mother ?” “He said,” the testimony continues, “He said, ‘why, is she here?’ I said, ‘Yo. sir, she is not here, but I will bring her if you want her.’ ‘Yo,’ he said, ‘don’t bring her.’ He said, ‘You need not bring her here, I will see her, I will see her, we will all meet.’ And then 1 bid him good-bye.” Another witness for the caveators, William IT. E. Blohm, was, on December 27th, three clays later, paid by check, signed by the testator that day, for some turkeys bought and given away for the testator on Christmas. The caveators offered the conclusions or opinions of five of their witnesses that the testator was mentally incapable at the time of executing the will; four were not permitted to give the testimony, and one, the nephew, Bichard T. Birchett, testified that in his opinion his uncle was not capable. These witnesses were to base their conclusions on what they observed on their visits to the hospital, and the facts observed have 'already been, given in genera,] terms, and, we think, sufficiently.

TVs concur in the conclusion of the trial court that the testimony was not sufficient to support a finding of fact that the testator was of unsound mind when he executed the will. Taking, first, the testimony of facts and conditions actually observed, apart from the opinions offered, we have, on the caveators’ side, as has been said, no facts and conditions observed at the very time of execution; and