Griffith v. Diffenderffer

Robinson, J., delivered the opinion of the Court. Certain paper-writings, purporting to be a will of Sarah Ann Griffith, deceased, dated the 20th of December, 1875, and a codicil attached thereto, dated the 7th of March, 1876, were offered for probate, in the Orphans’ Court of Baltimore City. By these papers, the testatrix gave to her • daughters Emma Coleman and Sarah Ann Ruddach, one thousand dollars each, and after the payment of certain legacies of about ten thousand dollars to other persons, she gave the rest of her property, amounting to at least one hundred and sixty thousand dollars, to her son David Griffith, and her daughters Mary E. Farnandis and Alverda Griffith. On the petition of the appellees, grandchildren of the testatrix, issues involving fraud and undue influence, were ⁴⁷⁸ sent to the Baltimore City Court for trial; and this appeal comes to us upon exceptions to the rulings of the Court below.

As to the question presented by the first exception whether the right of cross-examination extends to the whole case, or is limited to the matters in regard to which the witness has been examined in chief, there is a difference between the practice in this country and that which obtains in England. There, if a witness is called to prove any facts connected with the case, he becomes a witness for all purposes, and the other side may cross-examine him in regard to all matters relevant to the issues before the jury. In this country the Supreme Court has decided, that this right is limited to facts and circumstances connected with the matter stated by the witness in his direct examination; and if the other side proposes to examine “him respecting other matters, they must do so by making him their own witness. Phila. & Trenton R. R. Co. vs. Simpson, 14 Pet., 448 ; Harrison vs. Rowan, 3 Washington Ct. Court, 580; Ellmaker vs. Brinckley, 16 Leigh & Rawle, 77.

And this seems to us to be the better practice. There is no good reason why a witness called by one side to prove certain facts, should be considered a witness of that side in regard to other matters foreign to and in no manner connected luith the facts proven, and which the other side may desire to offer in evidence. In this case however, the question proposed to the witness is strictly within the rule laid down by the Supreme Court. The memorandum of instructions, and the rough draft of the will, and the will itself, had been offered in evidence by the plaintiffs.

The witness Venable, had referred to all of these papers in his direct examination; he had testified that the memorandum of-instructions had been delivered to him by Romulus Griffith, that finding some difficulty in understanding it he sent back for fuller ⁴⁷⁹ instructions, and that these instructions were also communicated by Griffith ; under these circumstances it was competent on cross-examination to ask the witness, whether he made a fair copy of the rough draft embracing the additional instructions and submitted it to the testatrix, and whether it was approved by her as being in conformity with the instructions she had given. These facts were germane to and connected with the circumstances under which the will was prepared, and in regard to which the witness had testified in his examination in chief. We should not, however, reverse the judgment on this ground, because it appears in the subsequent progress of the case that the defendants had the benefit of this evidence, and they suffered, therefore, no injury by the ruling of the Court. In the second exception, the defendants offered to prove by the same witness, that the instructions for the codicil were given to him by Romulus Griffith as coming from the testatrix, what those instructions were, and that he prepared the codicil in accordance with said instructions, and as prepared by him, it was read to and approved by the testatrix.

But the offer does not propose to confirm this alleged statement of Romulus, by showing that the witness afterwards repeated it to the testatrix, and that she admitted it to he true, hut only to show that she approved and executed a codicil that had been prepared according to her alleged instructions as received by Romulus. This might be true, and yet the fact that the testatrix had directed Romulus to communicate the ^instructions would, after all, rest upon the witness’ statement of what Romulus told him. It was, in fact, an attempt to prove by the witness that Romulus told him what the testatrix’s instructions were, or, in other words, to prove by the witness that Romulus told him what the testatrix had said. There was no error, therefore, in sustaining the objection to this question. ⁴⁸⁰ The questions arising under the third exception are of considerable importance in the trial of testamentary cases, and not altogether free of difficulty.

How far, and for what purposes, the declarations of a testator, made after the execution of his will, may be offered in evidence under issues of fraud and undue influence, the decisions are conflicting. We do not propose to examine the many cases in which the subject has been considered, for this has already been done in Waterman vs. Whitney, 1 Kernan, 168, in Boylan vs. Meeker, 4 Butcher, 274, and other cases, and it is unnecessary for us to do more than state the conclusions we have reached. Where such declarations are made so remote as not to constitute a part of the res gestee, they cannot he offered as independent evidence to prove the charge of fraud, or to show the external acts of undue influence, or attempts to influence the testator to make a will in a particular direction. If offered for this purpose, they are inadmissible on two grounds. 1st.

As mere hearsay evidence, which by reason of the death of the party whose statement is offered, can never he explained or contradicted by him. 2nd. It is inconsistent with the Statute of Frauds to permit a will executed with all the formalities required by the statute, to be impeached, or its validity in any manner impaired, by the parol declarations of the testator made after the execution of the will. But the question, whether a will is the free and voluntary act of the testator, or the offspring of fraud, whereby his judgment was misled, or of influences operating upon him, in consequence of which his will was made subordinate to that of another, depends upon whether he had intelligence enough to detect the fraud, and strength of will enough to resist the influences brought to hear upon him. The character and degree of the fraud practised, and the influence exerted, involve therefore necessarily, to some ⁴⁸¹ ■extent, the physical and mental condition of the testator •at the time of the execution of the will.

The influence that would he unlawful if exerted upon one advanced in years and in declining health, of a weak and vacillating will, might he altogether unavailing with one in robust health and of firm and resolute purpose. Any evidence, therefore, which tends to prove the precise mental condition of the testator, and to place him before the jury just as he was when the will was made, is admissible; and for this purpose the declarations of a testator may in some cases be the most satisfactory proof. It is a common practice to admit such testimony under issues involving testamentary capacity, and upon the same grounds 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. Such evidence, it is true, may have an effect beyond that for which it can be legitimately offered; and although not competent to prove the facts upon which the charges of fraud and undue influence are founded, they may nevertheless tend to bias or prejudice the mind of the jury.

This objection, however, applies also to other species of evidence, which is competent for one purpose, hut not ■competent for another, and if it he admissible under the general rules of evidence, we cannot exclude it on that ground. We are of opinion therefore, that the declarations of the testatrix to Mary Whitman, in November, 1876, “that she had made a will,” “that she was dissatisfied with it,” “that she had been persuaded to make it,” “that she was sorry she hadn’t let the law make a will for her, as it had for her husband, so that the children would have shared alike,” “that she had done great injustice to her other children and to her grandchildren,” naming them; ⁴⁸² “ and was troubled about it,” and “ sometimes tempted to-destroy it,” and other like declarations were admissible for the purpose of proving the mental condition of the testatrix at the time of the execution of the will and codicil, but for no other purpose. We are of opinion also, that her declarations in regard to her testamentary intentions made in May, 1875, some-months before the execution of the will and codicil, and before any improper influences are supposed to have operated upon her, are admissible. Evidence of this character may be offered either to rebut the charges of fraud and undue influence, by showing that the will is consistent, with the long cherished wishes of a testator, or that it is contrary to well settled convictions of what he thought-was a just and proper disposition of his property among others standing in the same natural relation with those benefited by the will.

The weight to be given to such testimony is a question for the jury. Denmead’s Appeal, 29 Conn., 309 ; Converse vs. Allen, 4 Allen, 512 ; Turner vs. Clemson, 15 N. J. Equity, 243. We come now to the questions of law involved in the instructions granted and those refused by the Court. And here it is necessary to understand precisely the issues the jury had to try.

That the will and codicil bore the genuine signatures of the testatrix; and that she was of sound mind and capable of making a testamentary disposition of her property, are admitted. The issues of undue influence were abandoned by the plaintiffs, and the only questions before the jury were whether the will and codicil were procured by fraud. The burden of proof was upon the plaintiffs. If they offered no evidence, or if it was insufficient to satisfy the jury that the papers offered for probate were procured by fraud practised upon the deceased,, then the defendants were entitled to a verdict.

The Court, however, instructed the jury, that if they found certain facts set forth in the plaintiffs’ first prayer, ⁴⁸³ the burden of proof was upon the defendants to satisfy the jury, that the will and codicil were in all respects the free, voluntary and intelligent acts of the testatrix, and if they failed to do so, the plaintiffs were entitled to a verdict. In other words, assuming these facts to he true, the burden of proof which originally rested upon the plaintiffs, was shifted to the defendants. This was equivalent to saying, that the facts enumerated in the prayer amounted in law to a presumption of fraud, because on no other ground could a jury find a verdict for the plaintiffs. How what are the facts thus relied on to support this presumption ?

First, that Eomulus Griffith was the son-in-law, agent and attorney-in-fact of the testatrix, and entrusted with the management of her affairs; that he employed his own counsel to draw the will and codicil, was consulted by the testatrix as to the making of said instruments, and otherwise took an active part in the preparation and execution of the same, by which his wife and himself were largely benefited. And it is insisted, that the doctrine recognized by Courts of equity, in dealing with matters of gift and contract, between parties standing in a fiduciary relation to each other, should be applied if not in its broadest sense, yet in some qualified manner to gifts under wills. It is true, that such Courts always watch with suspicion, transactions between persons standing in this relation, and although such transactions are not treated as altogether void, yet the burden of proof is upon the party holding the relation to show, that the influence necessarily arising from the confidence thereby reposed, has not been abused. And hence it is, that in gifts inter vivos between such persons, it is incumbent on the donee to show, that it was the free and voluntary act of the donor.

But there is