Diggs v. Smith

Stockbridcke, J., delivered the opinion of the Oourt. The present, like the first appeal in this case ( 128 Md. 394 ), is from the rulings of the trial Court upon issues, sent from the Orphans-’ Court of Baltimore City, in regard to' the will of James Wakefield Cortland. The issues, two in number, were whether or not the paper writing, purporting to> be the last will and testament of James Wakefield Cortland, and executed in February 11th, 1913, was procured by undue influence ; and second, whether the said paper was procured by the exercise of fraud practiced upon Mr. Cortland. Without objection a verdict was rendered in favor of the will upon the first of these issues during the first trial, so that the sole issue presented in the case after the remand by this Court, was whether the testamentary paper of Mr. Cortland was the result of' a fraud which had been practiced upon him.

In the case in 128 Md., the evidence was carefully examined, and it was held that upon the evidence as contained in the record in that case, the jury should have been instructed to return a verdict for the defendant, and the case was sent back for a re-trial. The adjudication of that case fully settled the law of the case, so far as the facts then presented were concerned. Thomas v. Doub, 1 Md. 252 ; Park Land Co. v. Baltimore, 128 Md. 611 . All that is necessary upon this appeal is to consider to what extent additional testimony adduced at the second trial should operate to modify the conclusion then reached. ■ A large portion of the brief of the appellants is devoted to what amounts to a re-argument of the former case, which ¹⁰³ was fully considered and disposed of on the former appeal and does not call for further discussion.

Conceding the truth of the facts testified to, by or on behalf of the caveators, and for the purposes of this case they must be taken to be true, there is set out a picture of duplicity, double dealing and deceit upon the part of Ethel Claude Cortland Smith toward her own kindred, rarely met within the reports of adjudicated eases. The issue in this case, as was pointed out by Judge Constable in the first case, is not, was or was not Mrs. Smith guilty of deliberate deceit, falsehood and fraud, but was the will of James Wakefield Cortland, in its provisions, the result of that deceit. There are but two witnesses produced at this trial who fairly can be claimed to add anything to the case as made out in the first trial; these are, Mrs. Katharine Claude Cortland, the mother of the caveators and caveatee, and Mrs. Harriet A. Randolph. The most that can be claimed for the testimony of Mrs. Cortland is, that she corroborates, and to some extent strengthened, the evidence given by the caveators of the perfidiousness and duplicity of Ethel.

She adds nothing whatever, to show that the provisions of the will of Mr. James Wakefield Cortland were the result, direct or indirect, of Ethel’s course of conduct. Her testimony, therefore, is not directed to that which is the real issue of this case. In regard to Mrs. Randolph the case is somewhat different. This lady in December, 1910, rented a room from Mrs. Goeghegan, one of the caveators, and a strong friendship between these two ladies followed.

Mrs. Randolph testified to having met Mr. Cortland on several occasions, during some of Mr. Cortland’s visits to Washington, in the winter of 1911-12. One of these meetings took place at the Shoreham, and Mrs. Randolph detailed the conversation which took place on that occasion, in which Mr. Cortland