Michael v. Smith

¹¹⁸ Thomas, J., delivered the opinion of the Court. - Mrs. Harriet E. Smith, of Harford County, Maryland, widow of James Smith, died on the 28th of November, 1912, leaving one son, William A. Smith, and one daughter, Annie F. Michael, her only next of kin and heirs at law. She left a will, dated the 31st of May, 1909, by which she gave $1,000.00 to her daughter; $500.00 to Martha E. Michael, the child of said daughter, and bequeathed all the rest and residue of her estate to her son, who was appointed executor. After her death the will was offered for probate in the Orphans’ Court of said county, a caveat thereto was filed by the daughter, and issues involving the execution of the will, testamentary capacity, undue influence, fraud, duress and knowledge of the contents of the will, were sent to the Circuit Court for Harford County for trial. The case was subsequently removed to the Circuit Court for Howard County, and during the trial in that Court, which resulted in a verdict for the defendant, caveatee, on all the issues, the plaintiff reserved eighteen exceptions, the first seventeen being to the rulings of the Court on the evidence, and the eighteenth to its action on the prayers.

At the conclusion of the plaintiff’s testimony the Court directed a verdict for the defendant on all the issues except the issues of undue influence, fraud and duress, and in this Court the exceptions to the action of the Court below on the prayers and to the rulings on the evidence referred to in the fourth, seventh, ninth, tenth and fifteenth exceptions are abandoned. The plaintiff, Mrs. Michael, testified that she was married in 1883, and thereafter lived at Orkington, in the neighborhood of Aberdeen, Harford County, where her father and mother resided; that her father, J ames Smith, owned a farm called the Swan Creek farm, which was located across the road from the farm on which he resided; that he made a will about 1885, in which, in order to give her and her brother “an equal amount of land,” he added one of the fields ¹¹⁹ of the Swan Creek farm to the home place which he gave her; that her mother told her of the provisions of said will and of her father’s purpose to divide his property so that each child would get one-half of it; that her mother also told her that her brother said that he ought to have the whole of the Swan Creek farm, and that he was not pleased with the will; that after that “the relations between her and her brother were not good; he didn’t speak to her; she would meet him on the road and look at him to speak and he would pass her by; if she went into the house where lie was he would get up and go out, disappear; they never had any words, but he just seemed to shun her”; that her father made his last will in 1895, and died in 1905, and that her brother did not speak to her until the morning after her father died, when “he just said, ‘Good morning.’ ” It appears that a few years after the execution of the first will James Smith conveyed the Swan Creek farm to his son, and conveyed another farm, called Purgatory, to his daughter, and it also appears from the report of the case of Smith v. Michael, in 113 Md. 10 , to which, by agreement contained in this record, reference may be made, that, by his last will, executed in 1895, he left his home farm to his wife for life, and after her death to his daughter, and that of the rest and residue of his estate (not including the personal property on his farm, which he gave to his wife,) he gave ono-third to his wife, and directed that the remaining two-thirds should be held and invested by his executor’s, his wife and son, the income therefrom to be paid to his wife during her life, and the corpus to be divided, after her death, equally between his son and daughter. In 1908, Mrs. Michael filed a bill in equity to compel her mother and brother to give bond and to render an account of her father’s estate. Mrs. Michael further testified that for two or three years after her father’s death she never heard anything about his estate; that her brother never referred to it. and that she asked her mother to ask him about it, and she said that she would rather she, ¹²⁰ Mrs. Michael, would ask him; that she told her mother that she knew that she, witness, could not ask him because he would “fly into a rage,” and that she thought her mother ought to find out; that she also told her mother that witness thought he “was transferring property in his own individual name,” and that she knew that he “did not have any property of his own”; that she only wanted what was hers at the proper time, and wanted to' know something about the estate, and that her mother replied that she knew that the witness did not want anything but her own; that Mr. Lee had told him that “it was lawful for him” to so transfer the property, “and that it would not give her any trouble”; that she, witness, told her that she would be better satisfied if it was done in his name as executor, and that she did not see how that would give her any trouble.

The witness was then asked the following question: “You have said that you asked your mother for information about your father’s estate and you have explained what she said; how frequently did you do that ?” and she replied, “I asked her three or four times before I took counsel; I told mother that if brother would not-.” The defendant objected to her proceeding further with her answer, and the first exception is to the ruling of the Court sustaining the objection. In the next question she was asked what her mother said to- her on the three or four occasions that she applied for information, and she replied: “I told her that I could not talk to brother, and that she would have to be the go-between, and that I wanted to know something the next time I came home. I told her that I would not take counsel without notifying her.” The witness was then asked: “What did she say to you ?” And replied: “ T can’t tell you anything, Anne,’ and I told her I would not do anything that I thought wrong, but I wanted what was mine, and I wanted them to give me an accounting of my father’s estate, and I told her if they didn’t do it I was going to take counsel.” In reply to the next question, she said she did take counsel and subsequently brought suit, ¹²¹ meaning tlie suit to which we have referred. It is evident from this testimony that the plaintiff secured, without objection, the evidenco that was excluded by the Court, viz, that if she did not get the information she wanted she would consult counsel, and that the plaintiff was not prejudiced by the Court’s ruling.

The plaintiff was asked if she remembered anything about a tax suit against her father’s estate, and having said she did, she was then asked what her mother said to her about the suit and what her mother told her her brother said about it, and she replied: “Mv mother told me that while she was in Aberdeen on one occasion, she met Air. Wells, the County Treasurer, and was told about the taxes being due on the property. My brother was in the store, or at least he came from some place, and used some very foul language to Mr. Wells. He told her not to pay it, as they could not make her pay it.

Afterwards a suit was brought against them and they had to pay it. She told me herself that she would have paid the taxes, but brother would not let her pay them.” Then follows the following questions and answers: “Q. What did he tell her about the outcome of the suit ? A. He told her he never had to pay it. Q. With reference to the outcome of that suit and the payment of the costs, did she make any •statement to you about what her son. had told her, and if so what was it?

A. She told me if she had paid the tax bill at first, it would not have cost so much; that it was more than double what the tax hill was at first. Q. Hid your mother tell you anything about that case in the Court of Appeals. A. Ho, sir. Q. That your brother had told her the case was going to the Court of Appeals ?

A. Ho, sir. Q. What did she say about it? A. She said she found out about it going to the Court- of Appeals. Q. Did she tell yon anything that your brother had told her about the case in the Court of Appeals, whether it had cost her anything, and if he had lost it or not?

Q. Mrs. Michael, will you please tell the Court and jury whether or not your mother told yon ¹²² your brother said anything to her about this case in the Court of Appeals, whether he had won it or lost it ?” To the last two questions the defendant objected, and the refusal of the Court to permit the questions to be answered is the sub- . ject of the second and third exceptions. The tax suit referred to was in reference to the propei'ty and estate of the plaintiffs father, and the evidence does not show when the suit was brought. The questions were asked for the purpose of showing the relations between the defendant and his mother; that he ignored her in the management of his father’s estate, and that he deceived her in regard to the outcome of the suit. Assuming, without deciding, that the evidence elicited was admissible, it is apparent that the answers of the witness to these questions could not have added any weight to her previous testimony, for she had already said that her mother told her that her son had deceived her about it; that she-would have paid the bill if he had not told her not to do so, and that the suit resulted in their having to pay double the-amount of the original bill.

Plaintiff’s counsel offered to show that shortly after the-plaintiff’s father executed his first will, about 1885, the defendant had a talk with his father- in the presence of the-witness, Mr. Michael, and complained that the Swan Creek farm had not been conveyed to him, and “used severe language” to his father, and that shortly after that talk his father and mother deeded the farm to the defendant and' deeded the farm called Purgatory to the plaintiff, and then asked said witness the following question, referred to in the-fifth exception: “I want you to tell us, so far as you observed, the conduct of William A. Smith, the defendant, towards his father, James Smith, in his lifetime?” The-farm in question, which was conveyed to the defendant in 1888, belonged to the defendant’s father, and there was no-evidence to show that the defendant’s mother knew of or-was induced to join in the conveyance by the “severe language” the defendant used to his father. But even if it be- ¹²³ assumed that because his mother united in the deed it was proper to show the conduct of the defendant towards his father on the occasion referred to, the question was very much broader, and would have allowed the witness h> testify to any conduct of the defendant towards his father, however remote or disconnected with any transaction to which the defendant’s mother was a party, and regardless of whether or not it reflected upon the relations of the defendant and his mother. Where a party is charged with having procured the execution of a will by fraud or undue influence, his situation towards the person who executed it, and their antecedent relations to and dealings with each other, are proper subjects of inquiry (Hiss v. Weik, 78 Md. 439 ), but his conduct toward others, wholly apart from and not connected with any dealings with or his relation to the alleged victim of liis influence or fraud, can shed no light upon such issues, unless undue influence may be inferred from the mere fact that the party charged exerted it in another and entirely different transaction, and we know of no case supporting such a rule. In addition to what we have said, it had already keen shown that the defendant was not satisfied with the provisions of his father’s first will, in which one of the fields of the Swan Creek farm was added to the home place which was to go to the plaintiff, and that the Swan Creek farm, including the field referred to, was subsequently conveyed to the defendant.

The plaintiff, therefore, had the benefit of that evidence and any inference that could be properly drawn from it, and she could not have been prejudiced by the exclusion of the evidence of the “severe language” of