Higgins v. Carlton

Brent, J., delivered the opinion of this Court. This case arises upon a caveat, filed in the Orphans’ Court of Prince George’s county, to the will of John Higgins. Issues involving execution, testamentary capacity, fraud and undue influence, were sent up for trial to the Circuit Court for that county. Upon application by the caveatees the case was afterwards removed to the Circuit Court for Anno Arundel county, and it now comes before us upon the several exceptions, taken by the caveators at the trial, to the rulings of that Court.

The first exception alleges error in the Court in refusing to allow a witness, upon cross-examination, to testify in regard to the difference between the contents of a memorandum and the will in controversy. It is necessary in deciding upon the admissibility of this evidence to refer to a part of the testimony previously given by this witness. He was the attorney who drew the will; and upon his examination in chief had stated, that it “was drawn from a memorandum placed in his hands by Mrs. Higgins, to whom, at the suggestion of Mr. Higgins, he applied for it.” Upon cross-examination, the caveators asked him to produce this memorandum. This he ¹³⁵ did, and handed it over to them.

Upon further cross-examination he testified to certain discrepancies between it and the will, and to the fact “that in drawing the will he did not pursue the memorandum exclusively.” He was then asked, “if the memorandum differed from the will in any other respects?” Upon objection being made _ by the counsel for the caveatees, the Court refused to permit the question to be answered. It has been argued that the evidence was admissible upon three grounds — to test the accuracy of the recollection of the witness, to contradict him, and to prove the genuineness of the memorandum. The last ground is wholly untenable, and is too clearly in violation of the rules of evidence to be seriously entertained. As a general proposition, a party has the undoubted right, upon cross-examination, to test the accuracy of the recollection of a witness, and to show that his statements are contradictory.

But this cannot be done in violation of other equally well settled rules. The memorandum referred to, had not been given in evidence to the jury, and it is apparent that the witness could not have answered the question, put to him by the caveators, without proving by parol a part, if not all, of its contents. It is no reason in favor of the admissibility of this evidence, that the witness had been permitted to speak, without .objection, of some of the differences between this memorandum and the will. The fact that illegal testimony has been permitted to go to the jury, without objection, cannot be urged as a ground for allowing other testimony, inadmissible under the rules of evidence, to be given when objection is made.

This memorandum being in Court, its contents could not be proved by parol for any purpose. TYhat is in writing must be proved by the writing itself. In the Queen’s case, 2 Bro. & Bing., 288, (6 E. C. L. Reps., 115,) the following question was submitted to the Judges, “whether, when a witness is cross-examined, and upon the production of a letter to the witness under cross-examination, the witness admits that he wrote that letter, the witness can be examined in the Court below, whether he did or did ¹³⁶ not in such letter make statements, sncli as the counsel shall, by questions addressed to the witness, inquire are or are not made therein?” They unanimously determined that the evidence was inadmissible. Abbott, C. J., in delivering their opinion, remarks, “the Judges do not conceive that they are presuming to offer any new rule of evidence, now for the first time introduced by them; but, that they found their opinion upon what, in their judgment, is a rule of evidence as old as any part of the common law of England, namely, that the contents of a written instrument, if it be in existence, are to be proved by that instrument itself, and not by parol evidence.” The offer in this case is clearly within the prohibition of the rule, for the question could not have been answered without proving by parol, the contents of the memorandum.

The case of Burckmyer & Adams vs. Whiteford, 6 Gill, 13 , if any authority is needed, disposes of the second exception. The witness was asked, “why he made in the will the change from the memorandum, in reference to the devise of the lands to Mrs. Eerrall'?” His reasons for doing so are certainly responsive to the question. Upon his proceeding, however, to give them, the very party asking the question, objected. It is now argued that they were inadmissible, because the necessary inference of their being irrelevant was raised by the witness stating “he did not consult Higgins or talk with him upon the subject.” The reasons given by the witness are not in the record, nor is it necessary that we should know what they were, in determining the point as it is presented.

Looking, however, to the preceding testimony, the inference is in favor of their relevancy, or at least it cannot be assumed they were necessarily irrelevant. A third party, at the request of Higgins, may have directed the alteration to be made. That it was done by his authority, and for reasons satisfactory to him, cannot be doubted. The devise, as it is found in the will, was approved by Higgins, for this witness states, that after preparing the will, “ he read it to the testator verbatim et literatim, who ratified it.” We do not, there ¹³⁷ fore, perceive that there was any error, or injustice done to the appellants, in permitting the witness to answer a question put to him by themselves.

It has been repeatedly settled by the decisions of this Court, that a judgment will not he reversed, where it appeal's from the record, the appellants have not been injured by the rulings of the Court below, although such rulings may be erroneous. For this purpose, it is proper to look to the whole record, and not, as was argued in this case, to that part only of the record, which precedes and includes the particular exception under consideration. "We think it unnecessary, and do not mean to express any opinion upon the question presented by the third exception. The error there complained of, even conceding the ruling of the Court to be wrong, does no injury to the appellants.

The testimony, sought to be elicited by them, is afterwards given by the witness, Scott, and is found in the evidence contained in the seventh exception. He there assigns his reasons for objecting to sign the will in controversy, as one of the attesting witnesses, and the appellants have had the benefit of those reasons before the jury. The fourth exception is taken to the refusal of the Court below to allow a witness to give in evidence his opinion of the “ physical capacity ” of the testator to hold conversations testified to by another witness, the witness under examination not being present. It is properly said in Phillips vs. Kingfield, 1 Appleton’s R., 379, that “the opinions of a witness are not legal testimony except in special (¡ases; such for example, as experts in some profession or art, those of the witnesses to a will, and in our practice, opinions on the value of property.

In other cases, the witness is not to substitute his opinion for that of the jury ; nor are they to rely upon any such opinion instead of exercising their own judgment, taking into consideration the whole testimony.” The Courts of Maryland have gone a step further, and allowed witnesses to express their opinion upon the menial condition of a testator, whose will is controverted, unless it be a more naked ¹³⁸ opinion, unaccompanied by the facts and circumstances upon which it is founded. It is not claimed that the witness in this case is an expert, nor is he brought within any of the other exceptions to the rules. We have failed to find a single authority in which testimony of this character has been admitted. The rule has already been sufficiently relaxed, and we think the doctrine of admitting the opinions of witnesses has been carried quite as far, as is consistent with a proper administration of the law.

The fifth exception having been abandoned by the appellants, the next question arises upon the sixth exception. The witness was asked, for the purpose of laying a foundation to contradict her, “ if she had ever had a conversation with the witness Scott, in reference to the memorandum from which the will was drawn?” Having answered in the negative, Scott was afterwards called, and the question, set out in this exception, put to him by the caveators. The Court, upon objection made, refused to permit him to answer it; and in this refusal the appellants allege there is error. In Whiteford vs. Burckmyer, 1 Gill, 139 , the rule is laid down, that “the witness, whom it is intended to impeach, should have a full and fair opportunity to recollect, by calling his attention to dates, names and other attendant circumstances connected with the matter, about which he is charged to have made different statements.” In the present case the memorandum spoken of, had been written nine months before the date of the will in controversy, and to have given the witness “a full and fair opportunity to recollect,” her attention should have been called to something more than the name of the party.

The question embraced a long period of time; and justice to the witness required that her attention should have been directed, at least with a reasonable degree of certainty, to dates and other attendant. circumstances. The question put to her was of the most general character; and for the purpose for which it was asked, is liable to another fatal objection. She was not asked whether she had made certain statements ¹³⁹ about this memorandum to the witness Scott, but simply if she had ever conversed with him about it. Where the object is to lay a proper foundation to discredit a witness by proof of any thing he may have said, it is not alone sufficient to direct “his attention to dates, names and other attendant circumstances ;” he must also be asked “ whether or no he has said or declared that, which is intended to be proved.”— 2 Brod. & Bing., 313.

In this view of the law, we think a proper foundation was not laid for the introduction of the testimony offered, and that the Court was right in rejecting it. The seventh exception also presents a matter of evidence. The question asked by the caveators was irregular. The caveatees had closed their case, and the caveators, at that stage of the trial, were entitled strictly to offer rebutting evidence only.

The evidence offered was not of that character. It certainly could not have had the effect to contradict the witness whose testimony it was designed to impeach. He had made no statement that Scott had testified to rational or irrational conversations on the part of the testator. If the testimony had already been given, it was only asking the witness to repeat what he had before said; and if it had not, it wras testimony properly adrnissible upon his examination in chief.

In either event the Court had the right to reject it. We do not concur in the views, urged by the counsel for the appellants, in reference to the right and power of the Court, of its own motion, to modify a prayer. To deny this right -would be undertaking-1^ change a practice long established