Brown v. Ward

Brent, J., delivered the opinion of the Court. This appeal is from the rulings of the Circuit Court for Howard County, in the trial of issues from the Orphans’ Court of Baltimore City, involving the validity of the will and two codicils thereto of Miss Jane Bay, deceased. The issues are nine in number. The first, second and third are directed to the will, the fourth, fifth and sixth to the first codicil, and the seventh, eighth and ninth to the last codicil.

The first, fourth and seventh involve the due execution of these papers respectively, the second, fifth and eighth present the question of testamentary capacity, and the third, sixth and ninth the question of undue influence. The due execution of the will and codicils was conceded, and the issues actually on trial were those of testamentary capacity and undue influence. The great bulk of the testimony was in reference to capacity, and it is with that question that we have mainly to deal. After the evidence in chief had been closed upon both sides, the appellant, who is the caveator, olfered to prove by Mrs. Rachel Bay, a competent witness and the wife of Oliver Bay, a nephew of the deceased, Miss Jane Bay, that her husband and herself and the other relatives of Miss Jane Bay, residing in Baltimore, always treated her with kindness, and did nothing to cause her to entertain dislike or antipathy for them or either of them.

Upon ohjection by the caveatees, the Court refused to allow the testimony to be given, on the ground that the same was not proper rebutting evidence; and this forms the subject of the first bill of exceptions. To determine whether this testimony should have been offered in chief, or whether it comes under the class of ³⁸⁷ rebutting evidence, it is necessary to refer to tbe evidence which had preceded the offer. Sanity and mental capacity are preshmed in law, and this presumption exists as well in reference to last wills and testaments as to other matters. The brn’den of proof rests, as a consequence, upon those who alleged the contrary.

Higgins vs. Carlton, 28 Md., 141 ; Tyson vs. Tyson’s Ex’rs, 37 Md., 582 . To remove this burden and to establish insanity, the caveator offered evidence in chief upon three points, as stated very concisely by appellees’ counsel, to show: 1st. Insanity in some of the ancestors and near relatives of the testatrix. 2nd. That she was a believer in spiritualism, and claimed to be guided in all her actions by the direction of certain departed spirits, and that she acted under their supposed direction in making her will; and 3rd, that she had an unreasonable and uncalled for aversion to her relatives, and that the will was in part the offspring of such aversion.

Upon the last point nearly all the witnesses of the caveator testified, and some of them very strongly. Such particularly was the testimony of Mrs. Scott, Mrs. Say-ward, Mrs. Eink, and others. The aversion of the testatrix to her relatives is fully gone into, and Oliver Bay and his wife are particularly mentioned as sharing her hostility and dislike. For her dislike to them she assigns her reasons, and these are testified to by some of the witnesses.

To Mrs. Fink she stated, that Oliver had stolen her plank, and to Mrs. Durham, that he had tried to kill her. Hostility and aversion to those who are bound to one by the ties of kindred and blood, are admitted as proof upon the question of sanity, not alone because there exists such hostility, but because it is altogether without cause, or based upon some delusion. The aversion of one ³⁸⁸ person to another, is by itself no proof of insanity; hut coupled with the fact, that it is without cause, or is founded upon some delusion, it may he. In the present case, the fact, that the aversion of Miss Bay to her relations was without cause, and that the reasons she assigned for her dislike to any one of them particularly, were untrue, was as much a subject of evidence in chief, as was the fact of the existence of such aversion.

This view seems to have been adopted at the trial, as the counsel for the caveator followed the evidence of hostility and dislike on the part of the testatrix to her relations, especially those living in Baltimore, by proof, that they all treated her very kindly, and specially referring to Oliver Bay, that there was no cause for her dislike to him. The caveator, having offered in chief, as he could only do, evidence upon this point in his case, was required to offer all the proof he had in reference to it before closing. He could not offer a part, and wait until the other side had closed, and then offer the other part as rebutting evidence. In 1 Taylor’s Evidence, sec. 358, the rule is stated to he this: “ Where there is only one issue, the onus of proving which lies on the plaintiff, he must put forth all his evidence in the first instance, and cannot rely on a prima facie case, and after that case has been shaken by the defendant's proof, call other evidence to confirm it.” In the case of Bannon vs. Warfield, 42 Md., 39 , this Court has said: “The parties must not be allowed to break up the evidence they may intend to offer on any particular issue, and introduce it at different stages of the cause by piece meal, as the varying emergencies of the case may seem to require.

Such practice would not only greatly prolong trials, but would frequently lead to surprise and injustice. According to the well established practice, the plaintiff having the right to begin, must put in the whole of his evidence upon every point or issue which he opens; and in reply the plaintiff is limited to such new ³⁸⁹ points and questions as may be first opened by the defendant’s evidence.” See also 36 Md., 588 ; 45 Md., 176 . Now the testimony, which was offered in the first bill of exceptions and refused by the Court, is to the same point and question which had been opened by the caveator in the first instance. It has reference to the aversion and dislike of the testatrix to her relatives, and is nothing more or less than cumulative evidence, to show, that such dislike and aversion were without cause.

It is not rebutting evidence, and the Court properly rejected it at the stage when it was offered. The second exception is also to the admissibility of evidence offered by the caveator after both sides had closed in chief. This offer, like the preceding one, was refused by the Court, on the ground that the testimony proposed to be given was not rebutting evidence. The law, as stated in considering the previous exception, is applicable .to this.

The caveator, under the issues of testamentary capacity, vel non, offered a large amount of evidence that the testatrix was a spiritualist, impressed with a delusion that she could commune with spirits of the departed, that through their agency she could cure the sick, foretell future events and know what was going on in places at a distance and out of her sight; that she always consulted spirits about matters of business, and was directed by them how .she should make her will. In addition to this general proof he also adduced evidence of particular business transactions, about' which she consulted the spirits. One of these was the transaction with Lehman about the Howard street property, this consultation was through Mrs. Durham as a medium, a witness examined in chief and now offered as a rebutting witness to prove that the testatrix consulted the spirits about her transactions with Lehman in reference to this Howard street property, and about which Lehman had testified as a witness on behalf of the caveatees. Mrs. Scott, the first witness for the ³⁹⁰ caveator, in answer to the fourth interrogatory, testifies, “ in her transactions with Lehman, concerning the Howard street property, I heard her in my presence consult the spirits through Mrs. Durham, as medium; Mrs. Durham wrote upon a slate answers as the deceased would ask questions about that matter; she asked her brother.

James’ spirit if Lehman would come out all right and pay her, or would he cheat her.” Having offered testimony in chief upon this point, as he had the right to do, the caveator should have completed the proof which he had commenced, and examined Mrs. Durham in reference to it when she was upon the stand as a witness in chief; having failed to do this, he cannot afterwards introduce it by way of rebuttal. The evidence, in regard to this transaction on the part of the caveatees, formed no new point or question first opened by them, within the meaning of the case in 42 Md., 39 . It was rather to rebut the presumption of insanity, sought to be established by the caveator’s proof upon this point, by showing, that the testatrix, in the whole of that transaction, more than usually complicated, clearly and fully understood what she was engaged in doing. In this exception, as in the first, we think the Court committed no error in rejecting the testimony as offered.

The appellant presented to the Court thirteen prayers, and the appellees eleven, and the rulings of the Court upon these prayers, constitute the subject-matter of the third bill of exceptions. The first and second prayers of the appellant were granted, and the third rejected. It is contended by the appellees, that this prayer was rightly rejected, as it is covered by others, which were granted. If this is so, it furnishes sufficient ground for its rejection.

Courts will not -grant a multiplicity of prayers substantially of the same tenor, and this Court has always affirmed the refusal so to do. Everything, which is em ³⁹¹ braced in this prayer, is certainly submitted to the jury by the sixth prayer, which was granted, and which the Circuit Court thought fully covered it. But it is contended by the counsel for the appellant, that he did not obtain in the sixth prayer the same benefit he would have had from the granting of the third prayer; because, as he says, it was the object of the third prayer to aid the jury in determining what amounted to a state of unsoundness of mind, which aid was not given, when they were further required by the sixth prayer, to find directly as a distinct fact, that the testatrix was of unsound mind. This argument is not without force, and would have great weight if we looked alone to the sixth prayer.

But by looking back to the first prayer, it will be found to cover fully all that is contained in the third, to aid the jury in “determining what amounts to a state of unsoundness of mind.” We cannot, therefore say, that the Court erred in rejecting this prayer. The fourth prayer is certainly objectionable in form. Its phraseology might well mislead the jury to suppose, that the Court assumed and believed that some of the important facts, enumerated in it, had been conclusively established by the proof in the case. But the fatal objection to the prayer is, that facts- áre mentioned in it of which no evidence is found in the record.

We have been unable to find that any of the witnesses, who speak of the infirm health of the testatrix, connect with it even a suggestion, that she exhibited Indications of disease of the brain before the making of her will. Many of them speak of the strange and unusual delusions of her