Dudderar v. Dudderar

Urner, J., delivered, the opinion of the Court. The questions to be determined in this case have been raised upon exceptions to rulings of the Court below in the coui’se of the trial of issues which originated in the Orphans’ Court of Frederick County upon a caveat, after probate, to the will of Peter Dudderar, deceased. There were three of these issues and they involved the inquiries; whether the testator had knowledge of the contents of the will, whether it was procured from him by undue influence, and whether he had' the requisite testamentary capacity at the time of its execution. The issues were transmitted in the first instance to the Circuit Court for Frederick County and wTere thence removed to the Circuit Court for AVashington County where the trial occurred which has resulted in this appeal.

There are five bills of exceptions relating to the admission of evidence and one which is concerned with the disposition of the prayers. ⁶⁰⁸ The will was executed on July 2nd, 1910, and the testator died on the last day of the same month. IJe had been a widower for a number of years. His estate amounted to about six thousand dollar’s. In 1910 he had sold two farms which he then owned to two of his sons and had divided the proceeds equally among his nine children.

He was eighty-four years of age when he executed the will. It first provided for the conversion of the estate into money and for the payment of debts and funeral expenses. It next bequeathed to the testator’s daughter Emma, in consideration of services she had rendered him, the sum of two hundred dollars, and to his grandson, William Westwood Dudderar*, his watch and chain. A provision then followed that the remainder of the estate should be divided into nine equal shares, one of which should be given to each of the testator’s eight living children and one to the children of a deceased daughter, “with the exception” that the shares of his sons, Warren E. and Daisy A. Dudderar, should be reduced $500 and $250, respectively, by reason of extra amounts given them in the sale of the farms they had purchased from their father.

The appellee, who is the oldest son of the testator, was named in the will as its executor. The caveat was filed by the two sons whose shares were reduced. The first exception was taken to the refusal of the Court to strike out part of the answer of Westwood Dudderar, a son of the testator, who, in answer to an inquiry as to whether he had talked to his father about the will after the date of its execution, testified: “I asked my father for the two old wills that he had started, and he said I could have them, told me to go to the desk and get them and read the one that was finished except the signing, as well as I can remember, then I asked him whether he had an intention to take this five hundred dollars off of Bud and two hundred and fifty dollars off of Daisy before the evening of the second, and he said he had not.” It is objected that the last sentence of the answer was not responsive to the interrogatory and that it is inadmissible as a declaration of the testator made after ⁶⁰⁹ the execution of the will. This objection was properly over-nil eel.

When a witness is asked to state what was said to him by the other party to the conversation under inquiry it could not he held that his testimony was irresponsive merely because it included a question asked by the witness himself which elicited the declaration sought to be proved. While the interrogatory was directed to what the testator said on the occasion mentioned, the answer of the witness in the present instance, would have been unintelligible if it had eliminated the inquiry to which the former replied. Upon the general question as to the admissibility of the declaration thus sought to he excluded we are relieved of any difficulty by the decision of this Court in Griffith v. Diffenderfer, 50 Md. 466 . It was there held that declarations made by a testatrix some months after the execution of her will expressing her dissatisfaction with its provisions and stating that she had been persuaded to make it were admissible for the purpose of proving her mental condition at the time of making the disposition in question. “It is a common practice,” said the Court, “to admit such testimony under issues involving testamentary capacity, and upon the same ground it ought to he received under issues of fraud and undue influence; provided they are made sufficiently near in time as to justify a reasonable inference that the mental condition which they are intended to denote, existed at the time of the execution of the will.” This rule is subject to the qualification that “where such declarations are made so remote as not to constitute part of the res gestae, they are not competent to prove the facts upon which the charge of undue influence is founded.” The second exception relates to the admission in evidence of the draft of an unexecuted will written by the testator sometime in the year 1909.

This differed in some important particulars from the will actually executed in 1910. It provided for a sale of the estate and a division of the proceeds among the testator’s children who might he living at the time of his death. It contained no exceptions with refer ⁶¹⁰ ence to the shares of the two sons who had purchased the farms, but left them upon an equal footing with the other surviving children. There was a direction to t-he executor to pay the testator’s daughter Emma seventy-five cents per week from January 1, 1900, to the time of his death, and there was a bequest to the same daughter of a set of bedroom furniture and a sewing machine.

In other respects the paper offered in evidence contained the same provisions as the will. The object of the offer was, of course, to show that the will in controversy was not in accord with the testator’s antecedent intentions, especially with reference to the dispositions in favor of the two sons whose shares were diminished. It is urged in opposition to the admission of this evidence that the testimony already in the case showed that the testator had previously referred to the paper as an incomplete will which did not express his wishes. We have been unable to find in the record any support for this contention.

There is testimony to the effect that upon the occasion of the execution of the will on July 2, 1910, the testator pointed to his desk from which the paper in question was later obtained and said he had started “his business” twice and that it had never been finished. This does not amount to a statement that the paper which he had himself written a year before and which was unfinished only with respect to its execution did not represent his views at the fime of its preparation. The fact that it was not formally executed might affect the weight of the evidence, but its admissibility can not he open to serious doubt. In Griffith v. Diffenderfer, supra, it was ruled that evidence of a testator’s declaration in regard to his testamentary intentions, made a number of months before the execution of the will in dispute and before any improper influences are supposed to have been exerted, are admissible for the purpose of showing that the will is “consistent with the long cherished wishes of the testator; or that it is contrary to well settled convictions of what he thought was a just and proper disposition of his property.” The same rule was. applied in Moore v. McDon ⁶¹¹ ald, 68 Md. 338 , and Davis v. Calvert, 5 G. & J. 269 .

The evidence here objected to is clearly within the principle of these decisions and there was no error in its admission. It appears from the third bill of exceptions that William II. Pearre, chief judge of the Orphans’ Court of Frederick County, testified to the effect that Benjamin F. Dudderar, the executor named in the will, stated at the time he received his letters testamentary that he wanted all the commissions he could get because he expected to have trouble. This testimony was admitted subject to exception and a motion to strike it out was granted.

Subsequently the Court changed its ruling and held that the evidence was competent. The exception recites that this later action occurred at the close of the plaintiff’s case on the day following the examination of Junen Pjeaeke and after he had returned to his home in Frederick county. It states further that upon the granting of the' motion to strike out the testimony claimed to be objectionable the witness was allowed to leave the stand without cross-examination. The final ruling embraced in this exception is questioned on the ground that the evidence is inadmissible and that the defendant was deprived under the circumstances of an opportunity to cross-examine the witness as to the statement referred to in his testimony.

As to the latter objection it is sufficient to observe that there is no ruling of the Court below to which it can be applied. There was no refusal to permit the witness to be recalled for cross-examination or to hold the case open in order that his attendance might be procured for that purpose. The exception, according to its own language, was taken to the “action of the Court in overruling the said motion to strike out the said testimony and also changing its ruling” at the time and in the manner described. If the motion should not have been granted in the first instance, it wTas entirely proper that the Court should reverse its action during the subsequent course of the trial upon reaching the conclusion that the evidence was competent.

If the defendant thought a cross-examination desirable, he should have asked that the ⁶¹² witness be recalled. It is not to be assumed that such an application would have been refused, but as the exception does not suggest that it was made at all, there is no ruling upon this point to be reviewed. We think the Court was right in rescinding its order sustaining the motion to strike out the testimony involved in this exception. While the statement that the caveatee, in discussing the question of his commissions as executor, that he expected to have trouble, would seem to have in itself very little probative value, it was properly admitted in view of the nature of the inquiry presented upon the issue of undue influence.

Moore v. McDonald and Davis v. Calvert, supra. The fourth exception refers to the admission of proof to show that after the preparation of the unexecuted will in 1909 the testator did not pay his daughter Emma anything on account of her services. In reply to an inquiry by the Court it was stated that the object of this testimony was to show that while the obligation which the testator at that time indicated that he felt towards his daughter had not been diminished by payment, the provision made for her benefit in his will was reduced as compared with the disposition in the earlier paper, as tending to show that the testator’s intention in this regard was different from that which he had previously entertained the evidence was admissible. In answer to questions as to whether she ever heard anything showing that her brother Benjamin, the caveatee, had influence over her father, Miss Emma Dudderar testified: “I noticed when he would go down to my brother’s he would always be so different towards me when he would come back.

When I would talk to him sometimes he would not answer me, and before he would go down there he would be as nice.as always. Sometimes this would last several days.” Her father told her, she said, that her brother Benjamin would tell him that she was not treating him right. This evidence was admitted after objection by the defendant, and his motion to strike it out was overruled. The action ⁶¹³ of the trial Court in this respect is the occasion for the fifth exception.

The testimony thus challenged reflects to some extent upon the attitude of caveatee, against whom the charge of undue influence was preferred, towards one of the natural objects of the testator’s bounty. It may also have had a tendency to illustrate the caveatee’s influence with the testator. In either of these aspects the testimony was competent and the Court correctly ruled to that effect. At the close of the evidence on both sides the Court at the instance of the defendant directed a verdict in his favor upon the issues relating to the testator’s capacity and his knowledge of the contents of the will.

A prayer proposing a similar instruction as to the issue of undue influence was refused. In the sixth bill of exceptions the defendant complains of the rejection of this prayer, which was his third, and of his fifth, sixth and seventh prayers, and the granting of the second prayer of the plaintiff. The last mentioned instruction submitted the issue of undue influence to the jury in the form approved in Taylor v. Creswell, 45 Md. 422 . The defendant’s fifth prayer was concerned with the issue relating to the testator’s knowledge of the contents of the will, and as that issue was withdrawn from the jury the instruction would have been inappropriate.

By his seventh prayer the defendant sought to have the jury instructed that to enable them to render a verdict for the plaintiffs it would be necessary to find that undue influence was “exercised on the testator at or about the time of the execution of” the will. A prayer in this form might confuse the jury upon the question as to whether or not it is necessary to find that the undue influence was actively exerted when the will was about to be executed. It is well settled that the controlling inquiry is not whether such influence is exercised, but whether it is operative, when the testamentary act is performed. The defendant’s ninth prayer, which was conceded, adopted this theory, and required the jury to find, before they could invalidate the will, that at or about the ⁶¹⁴ time of the execution of the instrument undue influence “dominated” the will of the testator.

We think the seventh prayer was properly rejected. The defendant’s sixth prayer proposed to define undue influence. It sought to instruct the jury that the “influence which will avoid a last will and testament must be exerted to such a degree as will amount to force or coercion destroying free agency. It must not be the influence of affection or attachment, nor the mere desire of gratifying the wishes of another, for that would be a very strong ground in favor of the testamentary act, and there must be some satisfactory proof that the instrument offered in evidence as the last will and testament of Peter Dudderar was obtained by the character of coercion above mentioned or by importunities which could not be resisted, so that the motive for executing the will amounted to force or fear.” This prayer is practically identical in terms with instructions approved in Laymen v. Conrey, 60 Md. 286 , and Higgins v. Carlton, 28 Md. 115 , and we have no alternative but to hold that there was error in its rejection.

The case went to the jury without any definition of undue influence, and upon the evidence which we will presently discuss a verdict was rendered against the validity of the will. The most important question raised in the sixth exception and upon the whole record is that which is directed to the refusal of the defendant’s third prayer denying the legal sufficiency of the evidence upon the issue of undue influence. It is charged that the defendant, by the exertion of such influence upon .the • testator, induced him to discriminate against two of his sons, the caveators, by