Gesell v. Baugher

Schmucker, J., delivered the opinion of the Court. The issue presented by this appeal is that of the legal sufficiency of the evidence appearing in the record to show a want of testamentary capacity in the late John Zehner when he executed his will. The appeal is from the rulings of the Superior Court of Baltimore City upon the trial of issues framed under a caveat to the will. Four issues were sent from the Orphans’ Court of Carroll County to the Circuit Court of the same county for trial and afterwards removed to and tried in the Superior Court of Baltimore City.

At the close of the plaintiffs’ evidence in the Court below the defendants offered four prayers asking the Court to direct a verdict in their favor on the respective issues. The Court granted all of these prayers except the second which related to the issue of testamentary capacity. As to that issue the same prayer was renewed at the close of all of the testimony and was again rejected by the Court. The verdict of the jury upon that issue was against the defendants and hey appealed. ⁶⁷⁹ The will was executed on April 17th, 1902, and the testator died on May 19th, 1902, in his seventy-second year leaving a widow who died about one month later.

He had but two children both of whom were daughters. Elizabeth, the elder of the two, married August Gesell and died in 1896, leaving surviving, her husband and six children who were the caveatees below and are appellants in this Court. Mary M., the younger daughter, married in 1893, while the family were residing at Catonsville, William H. Baugher, who united with her in filing the caveat to the will. The testator left an estate consisting of a farm supposed to be worth about $I0;000 and personalty of different kinds valued at $7,739, from which must be deducted funeral expenses and possibly an indebtedness to his wife of $3,500.

By his will he gave his wife the income of the estate for her life and then gave the farm, and $1,000 to stock it, to his grandson, John Henry Gesell, $1,000 each to two others of his grandsons and the residue of the estate to his three granddaughters, all children of his daughter, Elizabeth Gesell. To his daughter, Mary M. Baugher, he gave but five dollars saying in his will by way of explanation of this small legacy “she having left my house and got married without my knowledge and consent and as she has asserted that she could live without my aid and assistance so I have in contemplation of right and law made this bequest.” He gave nothing to Mrs. Baugher’s children. During the last five years of his life Mr. Zehner lived on his farm in Carroll County two miles from Westminster. The husband and six children of his deceased daughter lived with him on the farm until December, 1901, after that his farmer’s family lived continuously in the farm house with him, as did also his eldest grandson, John Henry Gesell, for the greater part of the time.

For a considerable period prior to his death he was an invalid suffering from dilatation of the heart, dropsy and kidney trouble, but he was not confined to his bed or his house. In the earlier part of his illness he was attended by Dr. M. L. Bott, but from April the 4th, 1902, Dr. James H. ⁶⁸⁰ Billingslea, who was then Clerk of the Circuit Court for Carroll County, attended him paying him four or five visits before the execution of the will and paying to him or his wife a number of visits thereafter. On May 14th, 1902, in order to secure better care and management he was taken to a hospital where four days afterwards he died. We now come to the circumstances of the making .of the will.

Wm. H. Heagy, the testator’s farmer, who lived in the same house with him, testified that he often spoke to him of the will both before and after he made it. The witness said. “Before he made the will he told him he was going to give .his grandson, Johnnie, the farm because he said he was his namesake and a good boy, ar.d he didn’t want to break the farm up and he would give it all to him.” Mr. Zehner also told John Poisel, who was sent by his lodge of Odd Fellows to nurse him, that he intended to make a will and give the farm to his grandson, John, saying “I can’t break the farm or I would divide it equally, I don’t like to break the farm (he said), none would have anything if I break the farm.” He told the wife of the same witness on the day before he made the will that he was going to make his will and cut his youngest daughter short as she had said she did not need his money. He also told Frank Eckenrode, á neighbor, that Johnnie was to get the farm; and two years before making the will he told Joshua F. Magee, another neighbor, that Johnnie Gesell was to have the farm saying, “That is my boy, don’t he look like me, * * he is the one that gets the farm.” Early in April.

Mr. Zehner, being in Westminster, met George A. Miller, Dr. Billingslea’s deputy clerk, who was also a scrivener and asked him if he could make a’will to which Miller replied in the affirmative. He met Mr. Miller again about a week before the execution of the will and said to him I have not forgotten that paper I wanted you to write. On the Sunday previous to the making of the will he went to Mr. Miller’s residence and gave him direction's for making the will leaving with him in that connection a will which he had formerly made. Mr. Miller testified that he drew the new will ⁶⁸¹ as directed; copying into it verbatim from the old one the provisions for the testator’s daughter, Mary M. Baugher, and he thought he had also copied into it the provision for the testator’s wife from the old will.

On the day of the execution of the will Mr. Zehner went to the Clerk’s office in Westminster and executed it in the presence.of Mr. Miller and Dr. Billir.gslea both of whom attested it as subscribing witnesses. Mr. Miller testified positively that when he asked Dr. Billingslea to step from the Clerk’s main office into the vault where the will was about to be signed he said to the Doctor. “You know of course what Mr. Zehner .wants you to do, he replied ‘Yes,’ I said he wants you to witness this will and Mr. Zehner said ‘yes I wanted you and Mr. Miller,’ and he said to him ‘Doctor I can make a will can’t I,’ and the Doctor said ‘why certainly.’ ” The will was then executed and attested by Mr. Miller and the Doctor and left in the vault of the office unhl produced in Court in this case. After the will had been executed, Mr. Zehner told Andrew W. Schmidt, who was then buying cattle from him, that he had made his will and given the farm to his eldest grandson and also $1,000 to buy stock with so he wouldn’t be short, “he said the farm alone wouldn’t be no good unless he had some .money to work it.” He told the same witness that he had willed his daughter, the one who was married, in or near Catonsville, only five dollars, but he at that time assigned no reason for giving her so little. Schmidt’s testimony as to the testator’s statement that he had by his will given the farm and $1,000 to his grandson was corroborated by Andrew Bodennard who was present and heard it.

Mr. Zehner also told Mrs. John Poisel after he returned from making his will that he had given the farm and $i,ooo to his grandson, John Gesell, and that he had given his youngest daughter but five dollars. We will next consider the legal sufficiency of the testimony produced to overthrow this will, made under circumstances of so great deliberation, upon the ground of the testamentary incapacity of its author. In disposing of this part of the case it is important to bear in mind two fundamental propositions which are especially applicable to it. ⁶⁸² First. The law presumes every man to be sane and to possess the requisite capacity to make a valid will.

Brown v. Ward, 53 Md. 382 ; Higgins v. Carlton, 28 Md. 142 ; Danis v. Denny, 94 Md. 392 . Seco7tdly. Testimony in order to be legally sufficient to overthrow the presumption in favor of sanity and capacity must be directed to the date of the execution of the will and must tend to show that the testator was at that time incapable. For the purpose of shedding light on his condition at that time, but for no- other purpose, evidence of his bodily and mental condition both before and afterwards may be produced.

Davis v. Calvert, 5 G. & J. 300 ; Brashears v. Orme, 93 Md. 447 , but if the opinion of the witness is desired to prove not capacity but incapacity the question put to- him must be such as to limit the inquiry to the date of the making of the will. Jones v. Collins, 94 Md. 410 ; Brashears v. Orme, supra. The caveators in this case rely especially upon the testimony of Dr. Billingslea, one of the subscribing witnesses to the will, the Doctor, after testifying generally as to Mr. Zehner’s illness and the professional visits made to him in that connection, said that he was a troublesome patient who would not follow directions as to taking his medicine and nourishment and abstaining from moving about, and that he once suspected the persons who- had lived with him of trying to poison him. The doctor was then asked this question. “From your observation of Mr. Zehner during this time you were attending him state whether or not in your opinion he was of sound and disposing mind and capable of executing a valid deed or contract.” He replied “I don’t think so.” When the doctor was pressed in cross-examination to state, whether in his opinion Mr. Zehner, at the tí/me he executed his will, was of sound and disposing mind and capable of executing a valid deed or contract, he wavered greatly in his testimony and finally said that he didn’t see enough of him to say yea or nay to that question.

As this is a vital part of the case we insert here the cross-examination on that point. Q. Do you mean to say doctor that on the day Zehner ex ⁶⁸³ ecuted this last will and testament he was not of sound and disposing mind and capable of executing a valid deed or contract? A. I say that a man who was suffering with disease as he was who was unmanageable and who would say to me without any provocation that those people whom I knew were just as careful about him, the people he was living with, the man and wife, and he would say without provocation that those people would poison him, I think that man’s mind was, he was then in the condition of mind that he could not properly make a valid deed and instrument. Q. That is not my question, did you believe at the time he executed this will he was not capable of making a valid deed or contract ?

A. I think I have answered that question. Q. Can you not answer it yes or no? A. That was much later of course, that day, I will be very frank and say yes; that was because of the mind being very much weakened and in a condition to accuse people of poisoning him and doing a great many other things; he was not what the average person would call crazy, he was not that sort but he was in the condition that he did not properly take his medicine or do the things he was told, which more or less aggravated his trouble and he was not in the condition a man wants with a clear mind to execute a proper paper that requires that care a great many people do because they are peculiarly (interrupted. ) Q. You don’t answer my question- I asked you whether on the day he executed this will at the time he executed it, whether he was capable of making a valid deed or contract? A. Well I will say this.

I think I didn't see enough of him to say yea or nay to that question. Q. I will ask you this question. Did you not tell me on two occasions