Conrades v. Heller

Boyd, C. J., delivered the opinion of the Court. This is an appeal from what is called a judgment on verdicts on five issues sent.from the Orphans’ Court of Anne Arundel County to the Circuit Court for that county in reference to the will of Louise Kruger, but we assume it was intended to be from the rulings of the Court at the trial of those issues. The case was tried in the Circuit Court for Baltimore County, to which it had been removed. The issues were as follows: 0 (1) Was the will of Louise Kruger, late of Anne Arundel County, executed by her according to the laws of the State of Maryland relating to the execution of wills ?' (2) Was the will of Louise Kruger executed by said Louise Kruger when she was of sound and disposing mind and capable of executing a valid deed or contract?

(3) At the time of the execution of the will by Louise Kruger, did she know the contents of her will ? (4) Was the execution of the will of Louise Kruger procured by undue influence exercised and practised upon her and constraining her free will and agency in the premises ? (5) Was the will of said Louise Kruger procured by fraud practiced upon her ? At the trial five prayers were offered by the defendants, the executors named in the will, and all of them were granted.

They instructed the jury to find for the defendants on the respective issues, and their answers were accordingly “Yes” on the first, second and third issues, and “Eo” on the fourth and fifth. There were ten bills of exception ⁴⁵¹ on rulings as to the admissibility of evidence and the eleventh included the rulings on the defendants’ five prayers. The caveatees, in order to prove the will, first called a deputy register of wills to produce the will which he said was left at the office on January 2nd, 1912, by the executors. Frederick Seebom, one of the executors, and also the draftsman of and a witness to the will, was next called.

On cross-examination he said he wrote the will Monday afternoon, and it was signed Wednesday. He was asked, “Did you write the attestation clause out of your head, without having anything to copy it from ?” and the question was objected to and the objection sustained. He was then asked, “Did you write the attestation clause?” That was obj eeted to and the obj ection sustained. The latter ruling constitutes the first exception.

That question was wholly irrelevant and immaterial. The attestation clause was the usual one found in books of forms, but if an answer to the question could have been of any possible advantage to the caveators they obtained it in the answers to the next two questions, which were as follows: “Q. Did you say in your examination in chief that you wrote the attestation clause to the will? A. I wrote the testimony for the witnesses. Q. What do you mean by that?

A. What is written there, what the witnesses signed, I mean this; I wrote that.” The other two witnesses to the will were then called and George Bontz (or Bunce, as his name is signed to the attestation clause) was asked, “How, as a matter of fact, Mr. Bontz, have you not made statements that this paper was executed before you got there?” That question is included in the second bill of exceptions and was clearly objectionable. If it was intended to lay a foundation to contradict the witness, the time, place and persons to whom the alleged contradictory statements were made should have been included in the question. B. & O. R. R. Co. v. Welch, 114 Md. 544 ; 2 Poe, sec. 280; Peterson v. State, 83 Md. 194 . That is required in justice to witnesses and there is every reason why the rule should be strictly enforced when ⁴⁵² an. old man nearly eighty years of age. as this witness was, was being examined.

The will was executed over seven years before he was examined and this question would have covered that period. The same witness was then asked, “Have you ever made any statements that at the time this will was drawn Mr. Seebom or Mr. Schultz was running the affair?” Regardless of other objections, what we have said above is applicable to this question, which is in the third bill of exceptions. The question in the fourth bill of exceptions is in somewhat better form, as it was “Didn’t you tell me, Mr. Bontz, that this paper was signed before you got there ?” but it does not refer to time, place or any attendant circumstances connected with the statement. The ruling on this question was proper, and it would be" well if trial courts enforced the well-known practice on that subject-more strictly than they sometimes do.

There could be no valid objection to offering the will in evidence and reading it to the jury, as was done, as is shown by the fifth bill of exceptions. The caveatees, as is the practice, had called the subscribing witnesses and had made out what was- at least a prima facie case as to the execution of the will, before offering it. The caveators were then to proceed with their testimony, and unless the jurors had the will before them some of the testimony likely to be offered might have been meaningless and some of it could not have been properly applied. The testimony offered in the sixth bill of exceptions was clearly inadmissible.

The caveators read a clause from the will to Mrs. Zopf, who was on the stand in behalf of herself and the other caveators, and she was asked, “What does that mean, do you know?” The Court properly sustained the objection to it. The seventh was equally objectionable. The Court declined to admit a certified copy of- a mortgage given by a sister-in-law of Mr. Seebom to Mrs. Kruger dated the 29th of April, 1905. What relevancy that could have to the case we confess our inability to see — especially as Mr. Seebom had in effect testified, when called as a witness by the caveators, that he did not know anything ⁴⁵³ about the mortgage.

As the brief of the appellants, made no reference to the eighth, ninth and tenth exceptions, we assume they are not pressed but at any rate the rulings in them were correct. This brings us to the rulings on the prayers. We will consider the second, third, fourth and fifth before the first. The second is applicable to the second issue — the testamentary capacity of the testatrix.

It instructed the jury to find for the defendants, and to answer “Yes”. There was no evidence which can be fairly said to have in any way tended to show that she did not have such testamentary capacity as is required by the standard fixed by the law of this State and it is unnecessary to discuss the subject. The third prayer instructed the jury that by the uncontradicted evidence in the ease, the contents of the paper writing of January 18th, 1905, “were read to her and known to her at the time of the execution thereof and that therefore their verdict must be for the defendants on the third issue and their answer thereto ‘Yes’.” It seems to us that this prayer was likewise properly granted. We will refer to the only evidence in the case that could be said to suggest that the testatiix might not have known the contents of her will.

A nephew, August E. Michaels, said that on the 8th of October, 1911, his aunt “told me for us boys to come down as soon as possible, that she had a watch she wanted to give me, so she would know where it went to,” and when asked whether she said anything else, he replied, “Yes, sir; she said, never mind, you boys and the rest of you will be looked after in my will.” But that was just a little over two months before her death and nearly seven years after the will was executed. The issue was not whether she then understood the contents of her will, but whether she did so at the time of the execution of the will. She did in fact by her will leave to Henry Michaels, a brother of that witness, and in ease he did not survive her to Charles Michaels, another brother, the sum of $300.00. The witness did not go to Annapolis before his aunt’s death, and he never got the watch.

It may be that ⁴⁵⁴ she wanted to give August the watch because she had made some provision for his brothers, or she may have intended to change her will, but was paralyzed, which resulted in her death a few days after she was stricken. At any rate she' did not change her will and, of course, even if she actually intended to do so such intention could not affect the one she had executed. Another witness, Mrs.- Mary Hilbert, a sister of the testatrix, said that about ten years ago the testatrix went to California and on her return said “She had a very good time while she was there, they were so kind and good to her, that this nephew at her death would be remembered, that she would remember him in her will, so the same to me and my family.” That nephew was George Conrades of California. That was three years before she made her will, and during-that time she may have had various reasons for changing her mind, but there is not a particle of evidence in the record to show that she supposed she had made a will in accordance with that statement.

If she had thought she had made a will by which she left her estate to her relatives, she would likely have told some of them that she had done so. It would be exceedingly dangerous to permit a jury to set aside a will on the ground that the testator did not know its contents on such testimony as the above if that stood alone. But it is said that there was testimony to show that the testatrix could not read English in writing, although it was also shown that she did read newspapers printed in English and did speak that language, but not as well as she did German. That might of course affect her knowledge of the contents of the will if she depended alone upon reading it herself, but the testimony of Mr. Seeborn is positive and un-' contradicted.

He not only swore that he read the will over to her after it was written, but that she directed him as to each clause. He said he wrote the introductory part of the will and read that to her. She said that was all right, and then gave him the parties mentioned in the will. He then wrote and read to her the clause about the real estate and ⁴⁵⁵ asked ker if it was rigkt, and ske said it was; tkat wken ske gave kim tke name of Mickaels ke did not know kow it was spelled and ske spelled it for kim.

His testimony is tken as follows: “Q. Go akead? A. Well, wken we came down as far as tke ckurck, I wasn’t tkrougk witk tke testament yet, and ske said tke rest skould go to tke German Lutheran Okurck. I said, wait a moment, I am not tkrougk witk tkis. I read it over from tke beginning, and tken asked ker about tke rest, if tkere was any particular sum ske wanted to fix, and ske said I don’t want to put any certain sums tkere, ske told me tkat in German, ske said if ske skould live very long, and tken kave a funeral and ker grave fixed nice tkat tkere wouldn’t be muck left, and ske directed me to write it tkat way.

Q. Did you read it to ker ? A. Yes, sir; after I was through I read it to ker and said Mrs. Kruger, is that all, and ske told me tkat was all, and left it tkere” — meaning tkat ke left tke will at ker house. Tkis witness was called by tke plaintiffs, and was tkeir witness, although ke was, it is true, one of tke defendants. Tkeir counsel read tke portion of tke will authorizing tke sale of tke real estate and asked kim if ke explained tkat to Mrs. Kruger before ske signed tke will, and ke said ke did.

It is claimed, however, tkat ke so contradicted kimself tkat tke jury skould kave been permitted to pass on kis evidence, but outside of some statements which were apparently tke result of kis not understanding tke questions, or kis inability to express kimself as clearly as a better educated person might kave done, kis evidence is remarkably clear and was apparently free from bias. He said in some places tkat ske “dictated” the clauses being spoken of, but ke very frankly corrected tkat and said, “ske directed me, I skould kave said.” He left tke will witk ker from Monday until Wednesday, and even if ske could not read it in English (although ke said ske told kim to write it so ske could understand it), ske kad every opportunity to consult some of ker German or other friends. He kad not written tke attesta ⁴⁵⁶ tion clause when he left the will with her, and on Wednesday morning she asked him if he was ready to finish “ the testament,” as he called it, and he told her he would .come to her house at one o’clock. He said he asked her before he went for the witnesses, “if that was all she had to say in it, if it was right and she said that was all, you write it up for the witnesses, then I wrote for the witnesses that day” — referring to the attestation clause.

The scrivener used a hook of forms and it is possible that some expressions in the will taken from that book might not have heen understood by the testatrix or by the scrivener. But there is nothing which could have misled her as to the disposition of her estate. In speaking of the knowledge of a testatrix of the contents of her will in question Chief Judge Baetol said in Munnikhuysen v. Magraw, 35 Md. 280 : “If she knew and understood what the actual contents of the will were, that would be sufficient, although in point of fact she may have had some erroneous opinions with regard to their legal effect and operation.” That is repeated in 40 Gyc. 1100, referring to that case, and the author adds, “and if he understands the effect of the