Harris v. Hipsley

⁴²⁴ Boyd, C. J., delivered the opinion df the Court. This is an appeal from the rulings of the Circuit Court for Baltimore County at the trial of issues sent to that Court by the Orphans’ Court of that county. A caveat to the will of Mary A. Harris was filed, and issues were framed as follows: (1) Whether the paper writing, dated the 24th day of January, 3 905, purporting to be her last will and testament, was signed by said Mary A. Harris, or by some other person in her presence and by her express direction, and attested and subscribed in her presence by two or more credible witnesses; (2) As to her testamentary capacity; (3) Whether the contents of the paper writing, dated, etc., were read to or by her, or known to her at or before the time of the alleged execution thereof, and, (4) Whether it was procured by undue influence exercised and practiced upon her. The trial began on May 26th, 1913, and ended on June 6th.

At the conclusion of the plaintiffs’ testimony (on June 2nd) a verdict was rendered in favor of the caveatee on the 5th issue (undue influence) by direction of the Court. There are twenty bills of exception presenting rulings on the admissibility of evidence. The twenty-first contains rulings on motions to strike out testimony and on the prayers. The plaintiffs (caveators) offered two prayers, both of which were granted, and the defendant (caveatee) offered ten, all of which were granted except the second and fourth.

An exception was taken to remarks of counsel for plaintiffs during his argument before the jury. The judge of the trial Court declined to sign a bill of exceptions as presented, but did sign a certificate stating his recollection of what occurred, supplemented by stenographic notes of one of the counsel. The jury on June 6th rendered a verdict for the plaintiffs on the second and third issues, their answer to each being “Ho.” At the time no verdict was rendered on the first issue —the one on the fourth having alreády been rendered as stated above. On the 9th of June (only Saturday and Sunday intervening) the jurors who had separated were called ⁴²⁵ together by the Court, not having been sworn in any case in the interim, and their verdict was taken upon the first issue, which was for the defendant, and their answer thereto was “Yes.” That action of the Court is presented by the twenty-second bill of exceptions.

There was also a motion filed on August 2nd to strike out the verdict and not certify it, which was overruled, and we understand was based on the ground referred to in the last exception, although we find no reason assigned in the record. Inasmuch as it involves the validity of the verdict, we will first consider the last (22nd) exception. The bill of exceptions speaks of this issue as the second, but inasmuch as the second was as to testamentary capacity and the record shows that there was a verdict for the plaintiffs and the answer “No” on that issue, it was clearly a clerical error in the exception. Nearly all of the testimony is in reference to the testamentary capacity of the testatrix, and that was the real controversy at the trial, and, while it is not conceded, we do not understand it to be denied by the attorneys for the appellant that the verdict taken on June 9th was on the first issue, as the docket entries show.

It is undoubtedly true that the jury should have passed on all the issues not already disposed of, and it must be conceded that ordinarily the jury should not be permitted to amend their verdict after it has been recorded and the jury dismissed. Rut in this case the jury was instructed on Juno 5th by the defendant’s first prayer, that there was no evidence legally sufficient to show that the will was not signed by Mary A. Harris, and attested and subscribed by her in the presence of two or more credible witnesses, and therefore their verdict must be for the defendant on the first issue, and their answer thereto, “Yes.” The verdict was not, however, entered on that issue when the prayer was granted, as there had been on June 2nd on the fourth issue, and that fact was apparently overlooked by the Court, the clerk and the attorneys. It would seem remarkable if the rules of law, at this day when Courts are endeavoring to get out of the meshes of ⁴²⁶ useless technicalities, which have brought more or less dis- * credit upon the administration of justice in the past, would require a reversal of a case which had occupied nearly two weeks in the trial and is presented to us for review by a record of over live hundred printed pages, for the reason now under consideration — especially when it is remembered that the verdict now complained of was in favor of the appellant and was in accordance with the instruction of the Oourt granted at his instance on June 5th. The jury did not amend their verdict by changing or affecting it as to either of the issues they actually passed on, but simply rendered a verdict on another and distinct issue which they could and should have rendered on June 5th.

They could not have rendered any verdict on that issue other than what they did render “without violating their duty and acting in contempt of the Oourt.” Diamond State Co. v. Blake, 105 Md. 570 . In the case just cited, the Court, at the conclusion of the plaintiff’s testimony had instructed the jury to render a verdict in favor of the Ohestertown Electric Light & Power Co., one of two defendants who had been sued in that case. As there said: “The proper practice undoubtedly was to have taken the verdict when the prayer was granted, but it was overlooked.” The jury rendered a verdict at the conclusion of the whole case, “for tbe plaintiff for the sum of $1,950.” The Diamond State Telephone Co. filed a motion in arrest of judgment, whereupon the Court instructed the clerk as follows : “You are hereby directed to amend the docket entries in the above entitled case by inserting after the words ‘judgment. nisi on verdict for plaintiff for $1,950, October 25th, 1906’ the words ‘as against the defendant The Diamond State Telephone Company, and judgment for the defendant, The Ohestertown Electric Light and Power Company, for costs.’ ” That action of the lower Court was sustained by us, and we said: “It is undoubtedly the duty of a Court to sustain a verdict when that can be done from its language and from the record. While this Oourt has been cautious ⁴²⁷ in allowing amendments to- verdicts-, after they are recorded, it has not hesitated to do so when there was no reasonable doubt about the intention of the jury.”.

There the Court named the defendant against which the judgment should be treated as rendered, and entered a judgment in favor of the other defendant because the Court had granted a prayer discharging the one defendant, and the jury was presumed to have known that they could not render a verdict against that defendant. We said, “The order of the Court was in the nature of a nunc pro tunc order, although not strictly so,” and it might be so treated here, for surely if it is permissible in a ease like that, where there were two defendants, for the Court to amend, the verdict without ever reconvening the jury, by rendering such a judgment as would have been rendered if the verdict of the jury had conformed to- the instruction of the Court, it was proper to have the jury in this case render the verdict directed by the Court on the issue which was not previously rendered simply because it was overlooked. There was no possible danger of injury to the parties by reason of the jury having separated, for the clear reason that the Court had already determined for them as a matter of law what their verdict should be, and they could not render any other. If the practice was to enter judgments in such cases, the Court might have done as was done in Diamond State Co. v. Blake, but as under our practice no judgment, is entered on the findings of a jury on issues from the Orphans’ Court, the proper practice was to do what was done — to recall the jury and direct them to render the verdict which the defendant’s first prayer had instructed them to render.

As the Court passes o'n the legal sufficiency of evidence, when that question is raised, the jury has nothing to do but obey the instructions of the Court if the Court determines, as it did as to this issue, that there was no legally sufficient evidence to be submitted to the jury. Under these circumstances, we can have no doubt that the action of the lower Court was correct, and it becomes unnecessary for us to deter ⁴²⁸ mine how far, or when a verdict, can be amended under different conditions. The general subject is considered in Edelen v. Thompson, 2 H. & G. 31 ; Browne v. Browne, 22 Md. 115 ; Gaither v. Wilmer, 71 Md. 361 ; Farmers' Packing Co. v. Brown, 87 Md. 1 ; Hechter v. State, 94 Md. 429 ; Bronstein v. American Ice Co., 119 Md. 132 ; Poe's Practice, sections 192a and 332, but the case of Diamond State Co. v. Blake, supra, is more analagous to this one, as there as well as here, the action of the Court only carried into effect what it had previously determined. There was then no error in reference to the verdict on the first issue.

Having disposed of that question, we will now consider the exceptions taken during the trial in the order in which they are presented by the record, excepting in s<> far as they may be grouped. The first and third were in reference to the same subject, but as there is no answer h> the question objected to in the third, we can not review it. Indeed the questions which elicited the objectionable answers in that bill of exceptions were not excepted to; although it was probably because the attorneys understood that the Court had already ruled on them, and did not deem it necessary to repeat the objection. The question in the first was, “Up to the time these girls left home, what character of work did they do about the place ?” The expression, “these girls,” referred to the daughters of Mr. and Mrs. Harris, and we can not understand the relevancy of that testimony — especially as they had married and loft home years before the death of Mr. Harris.

He died November 18th, 1904, and the will of Mrs. Harris was made January 24th, 1905. The appellees relied on what is said in Davis v. Calvert, 5 G. & J. 301 , that the contents of the will, the manner in which it was written and executed, together with the nature and extent of the estate of the testator, his family and connections, their condition and relative situation to him, and the claims of particular individuals, the condition and relative situation of the legatees or devisees named, ⁴²⁹ &c., “are all proper to be shown to the jury, and often afford important evidence in the decision of the question of incapacity.” But in so far as such matters were relevant at all, they related to Mr. Harris and not to the testatrix. The answer was calculated to* arouse the prejudices of the jury in favor of the appellees, and the question ought not to have boon allowed. There could be no possible reason for permitting such testimony unless on the theory that inasmuch as the three daughters had done so much work and had suffered such privations, they were entitled to be compensated, at least by the will, but if that be conceded, Mrs. Harris was not shown to have been responsible, and for aught that appears in the record, she may have at that time done as much work and suffered as many privations as either of the daughters.

Although that was not excepted to, an answer given to the question asked Mrs. Hipslev, “What did your parents pay you?”, shows what such testimony will lead to. Her reply was, “What we had to eat, sometimes we had a few clothes to put on, and sometimes we didn’t.” There was no' suggestion that the mind of either Mr. Harris or Mrs. Harris was affected at the time spoken of, and if it be true that sometimes the daughters “had a few clothes to put on, and sometimes we didn’t,” as that witness solemnly swore, surely neither parent manifested such interest in the daughters as to cause the provisions of Mrs. Harris’ will to reflect in any way upon her testamentary capacity. There was reversible error in the ruling on the first exception. The second, fourth, fifth, sixth and eighth exceptions were in reference to testimony of the mental condition of the decedent after the making of the will.

It is conceded that the old lady’s mind became very much impaired the latter part of her life. Her physician, Dr. Benson, testified that on December 13, 1908, she had “a slight stroke of apoplexy, it was not apoplexy either, but an embolic attack,” and there was another attack — he thought about a year later. He said there was more or less impairment after that time. The ⁴³⁰ latter part of her life the old lady was inclined to wander away so much that her son, with whom she was living, erected a wire enclosure in the yard, so as to keep his mother within those hounds when she was out of the house.

We understand that to have been in 1910 or 1911. Under our decisions it is permissible to offer evidence reflecting upon the condition of a testator’s mind both after and before the will was made, but only for the purpose of enabling the jury to determine the condition at the time the will was made. Brashears v. Orme, 93 Md. 442 ; Jones v. Collins, 94 Md. 403 ; Gesell v. Baugher, 100 Md. 682 ; Davis v. Calvert, 5 G. & J. 300 . In the case last cited, after stating the standard by which the mental capacity of a testator is to be ascertained — that at the time he was capable of executing a valid deed or contract — Chief Judge Buchanan said: “That state of mental capacity is to be determined by the condition of the testator’s mind at the time of his executing or acknowledging the will or testament.

For notwithstanding his incapacity at a prior or subsequent time should be proved, it does not necessarily follow that he was incompetent when the will or testament was made, as his incapacity before or after that time might have been the effect of a temporary cause. But for the purpose of shedding light upon the state of his mind, at the time the will or testament was made, evidence of its condition, and of his bodily imbecility, both before and after that- period, may be produced.” It can not be doubted that the admission of testimony as to acts and conduct of the testator at times before and after the will was made is often calculated to produce a false impression on the minds of jurors,'or at least have undue influence over them, unless very carefully .guarded. If such acts and conduct be of a character to convince jurors that there was a lack of testamentary capacity