Colvin v. Warford

Cochran, J., delivered the opinion of this Court: This is an appeal from a judgment obtained by tho appellees in a suit brought to recover possession of certain parcels of real estate, claimed by them as heirs at law of Rachel Colvin. For the purpose of defeating the claim set up by the appellees, the appellant offered in evidence a will executed by Rachel Colvin on the 6th of April 1848, with the proceedings upon which it had been admitted to probate after the trial of issues, and also a will, executed by her on the ³⁸⁴ 30th. of October 1845, in both of which he was named devisee of the property in question. The appellees then offered a mass of testimony, to show that these wills were made when she was of unsound mind, and incapable of executing a valid will, and that their execution was induced by the impression and undue influence of the appellant. They also proved that another will, containing a clause revoking previous wills, was executed by her some time in the year 1847.

During the course of the trial, the appellant reserved two exceptions. The 1st of these exceptions was taken to the admission of evidence of certain declarations made by Dr. Teackle, then deceased, who attested the execution of the will of 1848, and the 2nd to the granting of the appellees’ 3rd, 4th, 5th, 8th, 9th, 10th and 11th prayers, and the rejection of the appellants’ 3rd, 4th, 5th and 6th prayers, and also to the instructions given by the Court in lieu of the rejected prayers on both sides. The appellees’ 3rd, 4th, 5th, 9th and 10th, and the instructions given in lieu of the 1st, 2nd and 6th prayers, with the instructions substituted for the appellants’ 5th prayer, all of them submit specific propositions for the guidance of the jury, in passing upon the question of the testamentary capacity of the testatrix, when the wills of 1845 and 1848 were respectively executed. The instruction given in lieu of the appellees’ 7th and the appellants’ 5th prayer, relate to, and determine the operation and effect of the execution and subsequent loss or destruction of the will of 1847, upon the will of 1845, and upon the rights of the appellees as heirs at law ot the testatrix; and that given in lieu of the appellants’ 6th prayer, simply pronounced the legal effect of the probate of the will of 1848, as to real estate, and imposed upon the appellees the burden 'of showing that, in reference to real estate, that paper was not the last will of the testatrix.

The 11th prayer of the appellees, relates only to the title of one of the lots claimed by them in this case. With this general statement of the character and purpose of the prayers and instructions presented for re ³⁸⁵ view by the 2nd .otception, we proceed to consider the question as to the admissibility of the evidence, to which the 1st exception was taken. The offer of the appellees was, io prove by St. George W. Teackle, that bis brother Dr. Teackle, one of the witnesses to the will of 1848, called at his office on the afternoon of the day when that will was executed/ and said to him that “Miss Rachel had executed a will, and that she was not fit and was crazy, or some expression to that effect;” to'which the witness replied, that he hoped he, the doctor, did not witness it, in answer to which the doctor said, he had, but was only attesting her signature, and further added, that he had. said the same thing to Dr. Johns, another of the attesting witnesses, who replied, that she was competent, although he had observed her incoherency. This evidence was objected to on the ground that it was hearsay, and the question is, whether it, or any part of it, falls within any of the established exceptions to the general rule by which such testimony is excluded.

The case of Townshend vs. Townshend, 9 Gill, 505 , was relied on as an authority for the admission of the evidence under consideration. The question there arose, upon the trial of issues as to the validity of a will propounded for probate, and the offer was to prove certain declarations as to the condition of the testator, made to the witness under examination, by one of the deceased witnesses to the will, for the purpose of rebutting the prima facie effect of his attestation, which evidence was held admissible. The difference in fact between that case and the one before us is this: There, the evidence objected to was admitted upon the trial of issues contesting the validity of a will before probate, and in this, it was offered to impeach a will after it bad gone to probate, and thereby become conclusive as to personalty, and presumptively valid as to real estate. In disposing of the question presented, we have therefore to inquire, whether, the variance shown, is of such a character as to justify the adoption of a different rule from that established by ³⁸⁶ tbe decision in Townshend’s Case.

Limiting our attention exclusively to that portion of tire evidence showing the declarations of Dr. Teaclrle alone, we think it does not. The Act of 1831, ch. 315, provides, that the probate of a will disposing of real estate, shall be taken only as prima facie evidence of such will, and it was held in 14 Md. Rep., 532 , on the previous appeal in this case, that the in-’ tent and effect of that provision was, to throw the burden of proof on those who might make claim to land adverse to title under a will admitted to probate, whether the probate be had in common form or in the more solemn form of a plenary proceeding. The probate of a will, is simply proof of it by the proper tribunal, and as. probate, under the provisions of the Act, has no other effect than to raise the presumption of validity, there is no reason why it may not be assailed, as well by testimony which impairs or destroys the effect of such probative facts as the law requires to be established’in all cases before the probate is allowed, as by proof entirely disconnected from and independent of those facts. The offer of the probate necessarily brings forward such facts as the law requires should be shown in the proof of all wills disposing of real estate, and it cannot be said that any of the evidence thus made necessary by law to the proof of a will, whether it be of fact or rest in presumption, is screened from assault by those against whom the probate is offered, for in contemplation of law, all such facts and presumptions are presented as fixed legal elements of the probate i tself.

The probate of such a will, as it does no more than shift the burden of proof by raising a presumption of validity, like any other evidence producing a like effect, may be impeached by any proof that contradicts or impairs the force of that, whiph by statutory provisions or rules of law, must have been offered before the probate was had. In this case Dr. Teackle was the last in order of tbe three persons who witnessed the execution of the will offered in evidence with the probate, and it is clear that the probate could not have even the effect pre ³⁸⁷ scribed by tbe Act without some presumption from his attestation in favor of the will. We hold therefore that the offer of the probate of necessity brought forward, with the other evidence upon which if was had, the presumption resulting from his attestation, and that the presumption thus presented, was as much open to contradiction or qualification by proof of such of his declarations as were inconsistent with it, as it was in Townshend’s Case upon the trial of issues before the probate. In our view of the question, the principle upon which the evidence in that case was excepted from the operation of the general rule excluding hearsay testimony, applies with equal propriety end force in this, and we think, therefore, that there was lio error in admitting the evidence of Dr. Teackle’s declarations for the purpose of rebutting the prima facie effect of his attestation.

In regard to that portion of the evidence, showing the conversation between Dr. Teackle and Dr. Johns, the question is different, hut conceding that it vas inadmissible, we cannot reverse on the exception as it stands, for according to our settled practice, the appellant loses the advantage of his objection, if any part of the evidence covered by the exception, was admissible. Budd vs. Brooke, 3 Gill, 220 . Waters vs. Dashiell, 3 Md. Rep., 455 . In proceeding to the consideration of the several questions presented by the 2nd exception, it may ho remarked, that evidence was offered without objection, from which all the hypothetical facts of the prayers and instructions rejected and granted, might he found, and that none of the prayers rejected or granted, nor of the instructions given in lieu of the rejected prayers, arc open to objection on account of the assumption of any fact.

The 5th instruction of the Court given in lieu of the appellees’ 6th prayer, and the appellants’ 3rd and 5th prayers rejected, with the instruction substituted therefor, submit propositions for the government of the jury in finding the measure of testamentary capacity required for the making of a valid will. The appellant admits that the instruc ³⁸⁸ tion substituted for bis prayers, was unobjectionable, but he contends, that the instruction given in place of the appellees’ 6th prayer, is erroneous, because the statement of what constitutes a sufficient testamentary capacity in the terms of the Act of 1798, ch. 101, sub-ch. 1, sec. 3, is followed by an explanation of their legal meaning and effect. We think there is no real foundation for this objection. The explanation of the statutory clause, “of sound and disposing mind and capable of making a valid deed or contrae/,” is entirely consistent with the clause itself, and so clear and explicit that it could not have confused or mislead the jury.

The Court of Appeals in Davis vs. Calvert 5 Gill, 269 , used the same language in declaring the import and force of the clause in question, and as it does not vary nor qualify the statutory measure in any degree, we can see no impropriety in submitting the words of the statute to the jury in connection with the explanation objected to. We are of opinion that the rule for ascertaining the degree of capacity required for the making of a valid will, was properly prescribed by this instruction, and that there was no error in substituting it for the rejected prayers. The appellees’ 3rd, 4th, 5th, 9th and 10th prayers, directed the jury that it was their province to decide upon the testamentary capacity of the testatrix, and in doing so, that certain facts, hypothetically presented in the prayers, should, if found, be considered evidence in connection with the other circumstances in the case. The appellant, without denying that-there was evidence of these tacts, nevertheless insisted that all of these prayers were improperly granted.

The most, if not all of them, were opposed on the general ground, that the hypothetical manner of presenting the facts, pronounced to be evidence, imported a degree of importance not properly attributable to them that tended to mislead the jury. The obvious purpose of ■these prayers was to remove all doubt, from the minds of the jury as to the propriety of considering the facts thus presented in the connection proposed, and they certainly go ³⁸⁹ no further than was necessary to insure that result. In effect, they simply enunciate the proposition, that certain facts which the jury might otherwise have disregarded, constituted evidence on live question of testamentary capacity, and if there was no error in thus declaring those facts to' be evidence, the right of the appellees to these instructions ■could not be questioned. But the 9th and 10th prayers were objected to on the more material ground, that the influence of the appellant upon the testatrix, as also her declarations in the conversation with Mr. Teackle, were not ■evidence which the jury could take into consideration in finding her condition when she executed the disputed wills.

The question whether she was competent to make valid testamentary dispositions of her property when the wills of 1845 and 1848 were made, necessarily involved a consideration of the circumstances and influences which surrounded and operated on her mind, as well as of those which tended more directly to show its healthy or diseased condition, for its real state could be made to appear only by proof of its manifestations as related to the influences or ■circumstances inducing it to act, and by the sufficiency and reasonableness of which, its soundness could be tested. For the purpose of showing what her mental condition was, when the wills in question were executed, any evidence of the circumstances and nature of its action, both before and after those periods, was admissible. Davis vs. Calvert, 5 Gill, 269. The 9th prayer did not contemplate the impeachment of the wills on the ground of undue influence, hut the single proposition, that the influence of the appellant was a fact, that bore relation to, and attended their execution, which the jury might consider in passing on the testamentary capacity of the testatrix, and it is not material within the purview of the prayer, to consider whether the influence of the appellant was such as the law permits or prohibits, for the point decided was altogether independent of those consideiations.

Th-e declarations of the testatrix, narrated in the 10th ³⁹⁰ prayer, were also properly submitted to the jury under the rule stated in Davis & Calvert, tor the state of her mind at that time, as related to its condition when the wills were made, was undoubtedly a matter for their consideration. It is true that, in form, the prayer presents a somewhat different proposition, but to us, the reason for any distinguishment in principle is not so obvious. Whatever appreciable force these declarations might have had upon the question of mental soundness when they were made, it is clear that in and through that connection, they were, with the other circumstances in the case, evidence which the jury might, consider .in finding the condition of the testatrix, when she executed the will of 1848. Being thus before the jury on the question of testamentai’y capacity at that time, it is difficult to perceive, upon the hypothesis of the prayer, that she was sane and intended to speak the truth when making those declarations, why the direct and consistent,inference authorised by the prayer should not be. permitted.

Under no circumstances