Hamilton v. Hamilton

Boyd, C. J., delivered the opinion of the Court, This is an appeal from the rulings of the Circuit Court for Prince George’s County on the trial of issues sent to it by the Orphans’ Court of that county on a, caveat to the will of William Hamilton. The issues which are in the usual form are: 1. As to knowledge of the contents of the will. 2. As to undue influence; and 3.

As to testamentary capacity. Seven exceptions were taken to rulings on the evidence, and the eighth embraces the prayers. We will consider them in the order in which they were taken: 1. George P. Hickey, Register of Wills of the county, was a witness to the will, and was called by the caveators.

H'e was asked the question : “State’ whether or not in your opinion William Hamilton was capable of executing a valid deed or contract on the 7th day of April, 1915 ?” The question was objected to by the caveatees, unless he was confined to the opinion he had on the day the will was executed, and not that at the present time or any time subsequent to the execution of the will. The objection was overruled and the witness answered “No.” There was no valid objection to the question. The witness testified on cross-examination that he believed at the time the will was executed that the testator was capable, and that his opinion at the time he testified was based on what the testator’s son had afterwards told him. It is true that he was not authorized to form an opinion on what some one else, especially a caveator, had told him, but the question as jiro ⁵¹⁰ pounded was in the usual form and was' admissible.

When it was developed on cross-examination that his answer to the question was based on what the son told him, a motion could have been made to strike out the answer and it would have been the duty of the Court to grant the motion and instruct the jury not to consider it. 2. Thomas Hamilton, one of the caveators, was called by them. He testified without objection to a number of things and was afterwards asked: “Did you ever hear any conversation between your father and Charlie after Charlie came there in March in regard to the property?” He answered: “Yes, sir”; and then was asked: “Just tell the jury about the conversation; where it took place and what was said ?” “Charlie” is the appellant. Lie is the executor and sole devisee and legatee named in the will, and was, by the order of the Orphans’ Court, made defendant, and the appellees, who were the caveators, were made plaintiffs in the trial of the issues.

The appellant’s objection is based on the contention that Thomas Hamilton was not a competent witness under Section 3 of Article 35 of the Code. He was undoubtedly competent to testify to what Charlie said, and what his father said to Chardie could not possibly have injured the appellant, as it did not reflect upon the question of testamentary capacity and rather tended to show that he was not susceptible to undue influence. Beyond that no authority has been cited to sustain the appellant’s position—that he was incompetent. The practice in this State has been to permit caveators and eaveatees to testify on the trial of issues framed on caveats to wills.

They are not proceedings “In which judgments or decree may be rendered for or against them,” as no judgment is entered in the law Court where they are tried. Other reasons might be given for not applying the statute to the trials of issues on caveats' to wills but as such is the established practice, and our reports show that caveators and eaveatees have been without question permitted to testify ⁵¹¹ since the