Grill v. O'Dell

Urner, J., delivered the opinion of the Court. In the record upon this appeal there are seventy-one bills of exceptions. They embody the rulings of the Court below in the trial of issues relating to the validity of a will. As the numerous questions presented must all be reviewed it will be necessary to state and discuss the individual exceptions as concisely as possible.

The will in controversy is that of Annie E. Ruby, late of Baltimore County. It was executed on July 2Tth, 1908, and the testatrix died on Eebruary 4th, 1909, at the age of about ⁶³⁰ seventy-six years. She was the widow of William. Ii.

Euby who died in 1905. There was but one child of the testatrix living at the execution of the will. This was a daughter, who was married to George O’Dell, prior to her father’s death. After her marriage she resided with her husband at the home of her parents in compliance with their request.

The estate passing under the will consists of Savings Bank deposits amounting to about $14,500. This fund had been accumulated by the testatrix with great patience and secrecy during a period of about forty years. The deposits were made with money surreptitiously taken from her husband’s pockets or appropriated from allowances made by him for the household expenses. They were designed as a future provision for the daughter; but she was kept in ignorance of their existence.

The will was prepared sometime in June, 1908, by John H. Grill, an attorney at law, who is named as the executor and who is the caveatee and appellant in the present record'. After certain bequests in the will,in favor of other persons the residuary estate is bequeathed to Mr. Grill in trust for Mrs. O’Dell during life, her interest to become absolute if she should survive her husband, otherwise to go in remainder to the heirs and personal representatives of the deceased husband of the testatrix. A caveat was filed by Mrs. O’Dell to the will after it had been probated and letters testamentary had been issued, and this Court has heretofore had occasion to consider an application for the revocation of the letters pending the litigation over the will. Grill v. O’Dell, 111 Md. 64 .

There were four issues formulated and transmitted to the Circuit Court for trial. Two of these submitted the questions as to whether the will had been executed in accordance with the legal formalities and whether it had been procured by undue influence. The verdict upon these two issues was in favor of the defendant under the instructions of the Court. The two remaining issues, relating to the question of ⁶³¹ testamentary capacity, and knowledge by tbe testatrix of tbe contents of the will, were determined by the jury in favor of the caveator.

Seventy of the exceptions taken by the caveatee in the course of the trial deal with rulings as to the admissibility of evidence, and one is concerned with the action of the Court below upon the prayers. The first and second exceptions were to the allowance of questions propounded to William M. Isaac and which elicited from him the information that fifteen or twenty ago Mrs. Ruby in a conversation with her husband admitted having-taken and saved some of his money but stated that if she had not done so, their daughter would be a beggar. It was objected that these declarations were too remote from the execution of the will -to be relevant. It has already been noted that the estate of the testatrix was the result of a process of hoarding- which began many years before her death and before the time of the declarations referred to by the witness,, and the evidence thus offered to show that the purpose of the testatrix in accumulating the money was to provide for her daughter was clearly competent.

In the third bill of exceptions it appears that the same witness, after testifying that he had known Mrs. Ruby for about forty years, that he had', at her request, administered upon her husband’s estate and that in those days she generally acted upon his advice, proceeded to say that he “could not control her when she went to sell the property.” A motion by the caveatee to strike out the expression quoted was overruled by the Court. It developed later that the sale to which the witness alluded' occurred in Í90Y and embraced certain real estate of which Mr. Ruby died seized and in which the testatrix had a dower interest. She was urged bv the witness not to sell the properties for less than certain prices, but she sold them for much smaller amounts, giving as her only reason that she needed the money and that she would starve. The statement excepted to added nothing to ⁶³² the effect of the facts, to which the witness testified without objection, and which showed that in reference to this transaction the testatrix, contrary to her previous habit, was not governed by his advise, and there was no error in overruling the .motion for its exclusion.

The fourth and fifth exceptions refer to the refusal to strike out from an answer of the same witness the expression “She got wild,” which was used in describing the conduct and speech of the testatrix when the nature of her dower interest in the real estate left by her husband was explained to her and when she learned that her interest was not absolute, as she supposed, but only for life. It was in this conversation that the witness said: “She got wild and pretty profane, cursing people who made such laws to cheat women out of their nights.” ■ It is apparent from the context that the portion of this sentence to which exception is taken referred simply to the violence of the profanity and abuse in which the testatrix indulged' and did not in itself amount to the expression of an opinion as to her sanity. The effect of the testimony would be practically the same if the words objected to were eliminated. We see no error in this ruling.

By the sixth and twenty-fifth exceptions the competency of the opinion expressed hy Mr. Isaac as to the testamentary incapacity of Mrs. Ruby is questioned first upon the ground that it is not sufficiently supported, and secondly because it was not directed to the precise date of the will. • In addition to the facts to which we have already referred this witness proved that the testatrix was in ill health when her husband died and afterwards grew weaker all the time and there was a failure in her memory, that she would “make different statements about the same thing, apparently forgetting what she had said befoi’e;” that on July 5th, 1908, two days before the execution of the will, he visited the testatrix, who was then confined to bed, and she proposed to give him a bookcase, and upon his declining it she said she would give it to his son Randolph, that he reminded her repeatedly that ⁶³³ Randolph was dead, hut she persisted in her proposal to make the present to the deceased son. It is apparent that this witness, in the course of his long-acquaintance with the testatrix and his business relations with her in connection with the settlement of her husband’s estate, had exceptional opportunities for observing and knowing her mental condition. The facts stated by the witness as the basis of his opinion as to the incapacity of the testatrix cannot he held to he legally insufficient to support that conclusion in the light of the previous decisions of this Court upon the- subject of non-expert testimony in cases of this character. Brooke v. Townsend, 7 Gill, 28 ; Crockett v. Davis, 81 Md. 151 ; Waters v. Waters, 35 Md. 542 ; Brashears v. Orme, 93 Md. 450 ; Watts v. State, 99 Md. 36 ; Berry Will Case, 93 Md. 580 ; Berry v. Safe Deposit Co., 96 Md. 45 .

It is well settled that if a witness has the means of knowing- a testator’s mental condition, “then after disclosing those means, so as to show both that he possesses them and that they are adequate, he may state the result.” The Berry Will Case, 93 Md., supra. The second objection to this testimony is more serious, because being directed to the proof of incapacity, it is in apparent conflict with the well-settled rule that the opinion must he confined to the mental condition of the testatrix at the time of the execution of the will. Gesell v. Baugher, 100 Md. 682 ; Brashears v. Orme, 93 Md. 448 ; Jones v. Collins, 94 Md. 410 ; Kelly v. Kelly, 103 Md. 553 ; Robinson v. Jones, 105 Md. 69 ; Davis v. Calvert, 5 G. & J. 300 . It appears from the testimony of the witness that his last interview with the testatrix occurred on the afternoon of Sunday, July 15th, 1908, and his opinion was asked and' given as to her mental capacity at or about that date.

The will was executed two days later and the question and opinion should undoubtedly have been directed to that time. Whether this departure from the general rule as to this particular item of proof should, under all the circumstances of ⁶³⁴ the ease, justify a reversal and' remanding for retrial is a question we will consider at the conclusion of the opinion. The seventh exception was taken to the admission of a statement of Mrs. Catherine Fairbanks, a sister of the testatrix, that subsequently to 1888, when she first learned of her sister’s savings account, by seeing the.deposit book, she would sometimes tease the testatrix about it and threaten in a jocular way to tell on her, to which she would reply that she and the witness were the only ones who knew anything about the account and she wished it kept secret; and the eighth exception related to the further statement of the same witness that on various occasions after her discovery of the bank account she would refer to it when her sister would speak of her fear of going to the poorhouse, and the latter would say: “Well, I am saving that for a purpose, I am saving that for my child.” This testimony was admissible as having a direct tendency to show the attitude of the testatrix towards her estate and the object for which it was being accumulated. It was proven by the same witness that in July and August, 1908, after the execution of the will Mrs. Ruby said there was no need of her making a will and that if she needed one, John Grill would make her will.

This was the subject of the ninth exception. As indicating that the testatrix, after the date of her will, was not conscious that she had already executed one, this evidence was clearly admissible. The fact that the testimony related to a period subsequent to the execution of the will does not render it incompetent. It has been held that in order to reflect upon the condition of a testator at the date of his will, evidence of his bodily and mental condition both before and afterwards may be produced, subject to the qualification that an opinion as to incapacity must be confined to the time of the testamentary act.

Gesell v. Baugher; Brashears v. Orme; Jones v. Collins, supra. ⁶³⁵ There is no question for review in the tenth exception as the testimony therein objected to was stricken out by consent. In the eleventh exception an unsuccessful effort was made to exclude proof by Mrs. Fairbanks that in August, 1908, the testatrix though! someone had a design on her and wanted to kill her, and the witness stayed with her all night on several occasions to pacify her and try to relieve hei of that feeling. This testimony was competent, under the rule stated in connection with the ninth exception. The twelfth and' twenty-fourth exceptions deal with the opinion of Mrs. Fairbanks that the testatrix was not capable of executing a valid deed or contract during either June or July, 1908.

It is objected that the facts testified to by the witness were not adequate to support the opinion expressed, and that it was not directed to the date of the will. The opportunities for observation enjoyed by this witness as the sister and frequent visitor of the testatrix were ample. In fact the learned counsel for the caveatee in their brief suggest that this witness was within the class of those entitled' to express an opinion -without first stating the facts upon which it is based. But the witness was asked to give the reasons for her opinion and it is insisted that they are inconclusive and insufficient and render the testimony incompetent.

We are unable to sustain this contention. It was testified by the witness, in addition to the facts already mentioned in connection with other exceptions to her testimony, that Mrs. Ruby’s mind was not clear during the last year of her life; she changed very much during that time; she did not seem to be able to remember; she would mention something and talk about it for a little while and then she would forget that anything had been said about it; would become drowsy during a conversation and fall asleep; was apprehensive all. the time that someone would get into the house; seemed to have a dread or fear; wanted' somebody with her; was afraid to be in the room alone; from being a neat and careful person ⁶³⁶ she became the last year or more of her life very slovenly and filthy in her habits (the details being stated and being conclusive on the point though not necessary to be repeated here) ; in August, 1908, she was looking for a brother to visit her who had been dead ten years; she had frequently declared that everything she had should go to her daughter, whereas the will was not consistent with that purpose. The foundation thus laid by the witness was, in our judgment, legally sufficient to entitle her to give to the jury her conclusion as to the testamentary capacity of the testatrix. In reference to the objection that the opinion did not refer to the date of the will it is only necessary to call attention to the phraseology of the question by which the opinion was evoked.

It inquired whether Mrs. Ruby had the requisite capacity during June or July, 1908. The answer in effect asserted that she was not capable during those months. It amounted' to a distinct denial of testamentary capacity during the whole of a period which included the date of the will. This is all that the law required.

In Brooke v. Townsend, supra, it was held that a witness who had known the testator for twenty-five years should have been permitted to give his opinion of the testator’s mental condition during that entire period; and in the cases where opinions have been disallowed because not directed to the time of the execution of the will, the questions either specified periods which did not include the date of the instrument, or were- wholly indefinite as to time. Brashears v. Orme , and other cases, supra. The same objection was urged in subsequent exceptions as to the opinions of other witnesses, but in view of its disposition in the present connection it will not need to be further considered. The thirteenth to the seventeenth inclusive and the twenty-third exceptions relate to the opinion of Dr. Jarrett, the attending physician of the testatrix, as to her mental capacity.

The objection is that his testimony was too uncertain and vague to support his statement that he did not think she was ⁶³⁷ capable during July and August of executing a valid deed or contract. Dr. Jarrett proved that he attended Mrs. Ruby once or twice a week for the last three or four years of her life. She suffered with Bright’s disease which was accompanied by heart trouble, severe attacks of asthma and dropsy. Her condition, physically and mentally, was gradually failing.

In the early part of 1908 her mind at times was very feeble; she was forgetful; and on several occasions while she would be talking she would fall asleep. In. June and July “it was very evident that she was failing physically and mentally right along.” During that period she refused almost daily to take medicine. On cross-examination the witness said that Mrs. Ruby might have been more herself at times when he was not there, and that if she was in such condition she might have been capable.

In answer to a question as to whether he could say positively that she was not able during' ■June or July to execute a valid deed or contract, he said that he had stated sometime before that she was a woman of such peculiar temperament that anything she did not agree to would disturb her and make her incompetent to do anything of that sort, but he did not know whether anything of that description occurred in June or July. He adhered, however, to his statement that he did not think she could have made a valid deed or contract during the period in question. In Gesell v. Baugher, supra, the opinion of a physician as to the incapacity of the testator was held to be incompetent because on cross-examination the witness stated that he was unable to say whether or not at the time of the execution of the will there in question the testator had the necessary capacity. In that case the cross-examination completely neutralized the effect of the witness’ opinion as expressed in chief; but in the present case the probative force of the testimony excepted to, while it may have been weakened, was not destroyed by the cross-examination.

Considering the ⁶³⁸ whole of the testimony of the witness we do not feel warranted in holding that his opinion should have been excluded. The eighteenth to twenty-first exceptions inclusive, the twenty-sixth to thirty-second inclusive and the thirty-fourth, thirty-sixth and thirty-seventh present the objection of the caveatee to the opinions of Mrs. Eacer, Mr. O’Dell, Mrs. Bishop and Miss Thayer as to the incapacity of the testatrix at the time of the execution of her will. Mrs. Eacer had been acquainted with Mrs. Euby for twenty-eight years, had nursed her several months in her last illness and had seen her frequently during the period under investigation. Mr. O’Dell was the son-in-law of the testatrix and lived in the same house with her for a number of years prior to her death; while Mrs. Bishop and Miss Thayer knew the testatrix for many years and visited her frequently during the latter part of her life.

Each of these witnesses had intimate associations with Mrs. Euby and had the most advantageous means of knowing her mental condition. The facts to which they severally testified were similar in general effect to those narrated by Mrs. Fairbanks, and upon the grounds assigned for the admission of her opinion we think their conclusions on the same subject were competent evidence. It appears from the thirty-third and thirty-fifth exceptions that objection was made to the testimony of a witness, Mr. Eimmo, to the effect that his wife would talk to Mrs. Euby as she would to a child. In the same connection, and apparently by way of explanation, the witness said that Mrs. Euby would talk sometimes and drop off to sleep; that his wife would be talking to her and she would go off on something entirely foreign to what was being said; that her mind didn’t concentrate on what his wife was saying to her; it was just a broken conversation and a little napping; she seemed to be able to hold in her mind only two or three things and she would repeat these time and time again. ⁶³⁹ In Waters v. Waters, supra, it was held inadmissible for a witness to testify that the deceased was treated by his wife as a parent would a child, because this expression conveyed no distinct or definite idea of the witness’ meaning; and in the Berry Will Case, 93 Md., supra, a description of the testator merely as being “childish in his manner,” without explanation, was ruled