Kasten v. Kasten

Adkins, J., delivered the opinion of the Court. Lance L. Hasten, appellee, claiming to be a son, filed a caveat to the will of Charles F. Hasten, offered for probate in the Orphans’ Court of Baltimore City. Nellie H. Hasten, executrix of said will, who was also the widow of the alleged testator and the devisee and legatee, filed an answer denying that the appellee was the son or one of the next of kin of the decedent. Upon this preliminary question issue was sent to the Superior Court of Baltimore City.

The verdict of the jury being in favor of the caveator, appellant appealed from the rulings of the trial court. There were five exceptions reserved by appellant, all of which were abandoned except the first and second, which were to the admission of testimony of Dr. George Shipley, head of the Boys’ Latin School, as to the resemblance of appellee to the alleged testator; and the fifth, which was to the ruling on the prayers. The first exception was to permitting the witness to answer the question, “What would you say, if anything, about the appearance of these two people?” to which the witness answered, “I would say that I never saw a boy more closely suggesting his father—seldom saw a boy more closely suggesting his father, than Lance Hasten.” Other questions to this witness along the same line were permitted, which are the subject of the second exception. ³³³ The authorities in other jurisdictions are conflicting as to the admissibility of such testimony. See 1 Jones on Evidence (2nd Ed.), sec. 264, p. 434; 1 Wigmore on Evidence (2nd Ed.), sec. 166; 1 Greenleaf on Evidence, sec. 14s.; and cases cited in 52 L. R. A. 500 to 505, L. R. A., 1918A, 719, 40 A. L. R. 100 to 110; 7 C. J. pp. 993, 994; 22 C. J. p. 624; 11 R. C. L. p. 609.

But it was held in Jones v. Jones, 45 Md. 144 , that opinions of witnesses as to resemblance were not admissible. The rulings were therefore erroneous. But the errors were not prejudicial. Five other witnesses who had known appellee and the decedent for many years testified without objection to the resemblance.

Another witness testified that appellant had told her how much like his father Lance was in a great many of his actions; and there was no contradiction. And appellant