Mitchell v. Slye

⁹⁴ Offutt, J., delivered the opinion of the court. This is an appeal from certain rulings, of the court, made in the trial of a caveat filed by Mary L. Slye, sometime Committee of Susan N. Slye, a lunatic,, to the -will of Augustus B. Slye, which wasi probated in the Orphans^ Court of Charles County, where the issues raised by the pleadings were framed, and sent to the Circuit Court for Charles County for trial, from which court they were removed to the Circuit Court for Anne Arundel County, where they were tried. The appellee has moved to dismiss the appeal on the ground that the record was not transmitted to this Court- within three months from the time the appeal was taken as required by the statute. The appellants admitted the delay, but contended that it was occasioned by the conduct of the appellee, and that they were not in default.

This the appellee denied and in support of their respective contentions affidavits were filed in this Cburt by both parties-. From these affidavits and the record, it appears that the verdict of the jury on the issues was returned on November 13th, 1919, the- order for appeal filed December 16th, 1919, the bill of exceptions on February 17th, 1920, and the record transmitted to this Oo-urt on April 6th, 1920. Some time-after the filing of the bill of exceptions counsel for the respective parties began negotiations looking to a settlement of the controversy between them, as a result of which they reached an agreement purporting to be a complete and final adjustment of the disputation, which agreement was subsequently reduced to writing, and signed by counsel for both parties on March 23rd, 1920. This agreement was founded upon the expressed consideration that the appellants would “forthwith dismiss their appeal in this cause to the- Court of Appeals of Maryland.” While this written agreement was not signed until after the time fixed for the transmission of the record had elapsed, it is alleged on behalf of the appellants and not definitely denied, that it was but the formal ⁹⁵ expression of the substance of the, terms, of an oral agreement reached before the expiration of that period.

Shortly after the written agreement was signed and before its terms, bad been carried into effect, Susan N. Slye, the lunatic, in whose behalf it purported to, have been made, died, leaving to survive her, as her next of kin and heir at law, Mary L. Slye, her mother, who was then acting as, her committee. Mrs. Slye, upon her daughter’s death, immediately notified counsel for the appellants that she had not authorized any settlement of the caveat ease and that no settlement of it would be acceptable to her, whereupon the appellants procured the prompt transmission of the record to this Court. It was further asserted that at the time1 the written agreement was signed by counsel it was understood by them that it was not, to he considered binding until ratified by their respective clients. It is clear that the delay in the transmission of the record iu this case to this Court was, due to the efforts thus1 made in good faith by counsel for the respective parties; to settle the controversy between them without further litigation.

Such efforts commend themselves to the favorable consideration of the courts and should be encouraged rather than penalized. Counsel for the parties in this case had reached and reduced to definite terms an agreement of settlement, the consideration for which was the dismissal of this appeal. Certainly, under such circumstances, it was not incumbent upon the appellants to incur further expense in the prosecution of an appeal which they had agreed to dismiss. The appellee asserted, it is true, that the appellants were; told that the agreement would not he accepted as an excuse for any delay in the transmission of the record, hut such a warning was so inconsistent with the plain terms of the written agreement that the. two cannot stand together, and it will not he, considered.

Section 40, Article 5, Code Pub'. Gen. Laws, provides that no appeal shall he dismissed because the record shall not have been transmitted within the time prescribed, where1 the delay ⁹⁶ was occasioned, by the neglect, delay or inability of the clerk or appellee, and in McGonigal v. Plummer, 30 Md. 426 , it was held that, where the delay was “equally attributable to the appellant and the appellee,” the appeal would not be dismissed for that reason. Since counsel for the appellee made this agreement with counsel for the appellants, and since the appellants, until they were notified that it would not bei ratified, could not have procured the transmission of the record without violating its terms, and since they procured it to be transmitted with the requisite diligence after they were so notified, the motion to dismiss the appeal will be overruled.

This brings us to the consideration of the questions presented by the record. There are twelve exceptions, eleven of which relate to questions of evidence and one to the Court’s ruling on the prayers. In the trial of this case there were four issues of fact affecting the validity of the will of Augustus B. 'Slye, the first of which related to the proper execution of the will, the second, to the testator’s knowledge of its contents; the third, to whether its execution was procured by undue influence, and the fourth, to the testator’s mental capacity at the time of its execution. Augustus B. Slye died at the Uiniversity Hospital in Baltimore March 27th, 1911, about one month after he had undergone an operation there for tubercular peritonitis.

On the 11th of March, while in the hospital, he executed the will which is the subject of this controversy. He had never’ married, and at the time of his death his nearest relative was Shsan N. Slye, the daughter of his deceased brother William H. 'Slye. 'She at that time was about nineteen years of age, and lived with her mother Mary L. Slye in Washington. Her father, from whom her mother had been divorced, was then dead. While Augustus B. Slye seldom saw his sister-in-law after she left his brother’s home in 1903, he often saw her daughter, his niece, to whom he was greatly attached.

She frequently, at his invitation, visited him at his home in Charles County, and when he came to Washington he often ⁹⁷ invited her to see him at the hotels at which he happened at the time to be staying. He lived on his. farm near Benedict, in Charles County. It is inferred from the record that he did not himself operate this farm, but that it was carried on by tenants; and that his principal income consisted of the rents and profits from it. He appears to have lived a somewhat aimless life; he had no regular occupation, was interested in horses and to some extent horse racing, and on one occasion represented his county as a delegate to the General Assembly of Maryland.

The testimony of several of the witnesses conveys the impression that he was a somewhat idle man, of limited education, of some intelligence, fond of pleasure and sports and a genial companion, but not a particularly good manager. Eor some time before he went to the hospital his health had been failing. He suffered from gastritis; and was at times unable to eat or to assimilate food when he could eat. He was gradually growing weaker and finally, upon the advice of physicians, determined to- undergo an operation.

Some days after the operation he sent for Walter J. Mitchell, one of the appellants, and who was then and had for a long time been his counsel, and told him that he wanted his will drawn and informed him of the manner in which he wanted to dispose of his property. Throughout, this interview, and indeed in a number of conversations had with different persons, prior to it, he expressed his desire and intention' of giving his property to his niece, Susan N. Slye, but it was also 'testified that on several occasions he expressed his determination to dispose of his property in such a manner that his sister-in-law, the mother of Susan N. Slye, would not bo able in any event to take it. The will was drawn and presented to the testator by Mr. Mitchell several days later and, after1 a. modification indicated by Slye had been interlined in it at his suggestion, he executed it on the 11th day of March, 1911. Hnder this will his estate, consisting principally of the farm on which hej lived, was left in trust for his niece dur ⁹⁸ ing the life of her mother, and if she or any child or children of hers survived hear mother, it was h> go then to her, or in the event of her death, to her child or children if she left any to survive her, but if she predeceased her mother without leaving any child or children to survive her, then it was to go to John H. Sbthoron or his representatives.

Upon his death this will was admitted to probate, and shortly afterwards, in 1911, a caveat was filed to it by Susan N. Slye. Nothing further was done until 1917, when issues were framed and transmitted to a court of law for trial. In the meantime ’Susan N. Slye, following] a severe illness, had become and was adjudicated mentally unsound, and her mother appointed her committee', and in November, 1919, the issues were tried. At the trial of these .issues the testimony offered was directed mainly to the mental capacity of the testator at the time of the execution of the will, and the admission or rejection of such testimony is; the subject of the first nine excep*tions, which will now be considered.

The mental capacity of the testator a,t tire time the will was executed was assailed upon two grounds, one, that of a mental infirmity which, if not congenital, was at least of long standing and permanent in its character, and the other, that of a casual and adventitious mental weakness caused by the absorption of the toxin produced by the disease from which he suffered, and by the drugs administered to him in the course of its' treatment. In support of the first theory evidence was offered to show that, in his youth and early manhood, the testator was selfish and had a violent temper, which manifested itself in various eccentricities of conduct, that he was irritable, easily excited, and easily influenced, but there was no testimony sufficient to warrant the inference that his testamentary capacity had at any time been affected by any congenital or permanent mental infirmity. In this state of the proof the appellee, testifying in her own behalf, was asked whether Henry 'Sothoron, the maternal uncle of the testator, ⁹⁹ was “sane or insane,” and before any objection was made to the question she replied “I have no technical knowledge, but the people all said he was insane.” The appellants then moved to strike out this answer, but the court overruled the motion and its action is the subject of the fifth exception. There was injurious error in this ruling.

The answer should have been stricken out for two reasons: first, because at most it was but public opinion or hearsay; and second, because there was no evidence in the case sufficient to warrant the inference that the testator had ever suffered from any form of inheritable insanity. “Insanity cannot be proved by reputation or public opinion, nor can it be proved by hearsay or by what somebody else said.” Wharton & Stille’s Med. Jur. (5th Ed.), par. 331; Waters v. Waters, 35 Md. 531, 542 . And since the, testimony was entirely hearsay and therefore inadmissible, it should for that reason have been stricken out.

It was also inadmissible because there w'as no evidence that the testator ever suffered from inheritable insanity and, in the absence of such proof, evidence of the existence of insanity in his blood relations was inadmissible. This Court, in Berry v. Safe Deposit & Trust Company, 96 Md. 63 , said: “It is competent to prove that insanity exists or existed in the family of the person whose sanity is under investigation, but this can only be done after a foundation has been laid by an offer of some direct proof of the insanity of the person whose mental condition is in issue. It is only cumulative evidence and unless the foundation above indicated has been laid, it is not admissible.” 1 Wharton & State’s Med. Jur.

(5th Ed.), par 330; Commonwealth v. Dale, 264 Pa. 362 . It is said, however, that the objection coming after the question had been answered was too late and should not be1 considered. This criticism is without substantial merit. The answer was not responsive and could not have been anticipated from the form of the question.

It is true that the question itself was, for reasons already stated, objectionable but, by failing to object to it, the appellants were not thereby pre ¹⁰⁰ eluded from objecting to the answer, when it was objectionable upon grounds independent of those which could properly have been urged to the question. The appellants could not have known before the answer was given that it wo\rld not only be intrinsically improper, but would introduce testimony which did not respond to the question and was not contemplated by it, and as soon as it was given the objection wa.s made. But even aside from this we think the objection was in time. The rale requiring objections to testimony to be made promptly is for the purpose of facilitating rather than retarding the administration of