Moore ex rel. Moore v. McDonald

Stone, J., delivered the opinion of the Court. Upon a caveat to the will of Lawrence McDonald, filed by the appellees, issues were framed by the Orphans’ Court of Baltimore City, and sent to the Court of Common Pleas for trial. The first and second of these issues presented the question of the proper execution by the testator, and the legal attestation of the will. The third, the testamentary capacity of the testator, and the fourth, his knowledge of the contents of the will, and the fifth and last issue the question of undue influence.

The jury found a verdict in favor of the caveatee, the appellant here, upon all the issues except the fifth and last, and upon that issue they found for the caveators, the appellees here, and the caveatee has brought the case here. ³³³ The case is brought here upon exceptions to some-of the prayers granted or refused, to the admissibility of certain evidence, but principally, if we can judge from the argument of the appellant, upon the question of the legal sufficiency of the evidence to establish the fact of undue influence. By the sixth and last exception, -which we will first' notice, it appears that, “after the close ef the case, and the judgment of the Court upon the prayers, as set forth in the defendant’s fifth bill of exceptions, the defendant, by her counsel, offered to the Court to allow the jury to have the original will in suit and in evidence ; but the Register of Wills of Baltimore City refused to part with the same, and the Court declined the offer, and refused to allow the jury to have said original will, but gave them a certified copy thereof instead,” and the defendant excepted. From this exception it will be seen that the defendant claimed, as a matter of legal right, the privilege of sending into the jury room, by the jury themselves, a paper that had been used as evidence in the case. This would be opposed to the whole theory and practice of our trial by jury.

The parties litigant have the clearest right, during the progress of the trial, in the presence of the Court and of the opposite party, to submit to the closest scrutiny of every individual juror, if the suitor so desires, any and every instrument of writing that may have been admitted in evidence in the ease. But his right ends with the trial in the Court room. He has no more right to send by the hands of the jurors themselves into the jury room, a piece of documentary evidence, which he believed important to his case, than he would a living witness. It is not necessary for us to notice the fact set forth in the bill of exception, that the Register of Wills refused to part with the original will, or to enquire whether the Court below was influenced by that refusal to deny the request of the appellant.

It is enough for us to say that ³³⁴ the Court was right in refusing to allow the will to go to the jury room. Had it appeared affirmatively from the bill of exception that both, the caveators and caveatee, had consented that the jury might take the original will, then the action of the Register of Wills would have been a proper subject for our consideration. But we are dealing with a claim of right on the part of the appellant, without the consent of the appellees. A will offered in evidence during the progress of a case, does not differ in many respects from other documentary evidence.

By consent of both parties, the Court may allow any such instrument of writing to be taken by the jury to their room. But not as a matter of right. The ruling of the Court on that exception is therefore affirmed. The fifth exception contains the caveatee’s, the appellant here, objections to the granting of the first and second prayers of the caveators, and the refusal of the Court to grant the second, third, eighth, ninth and fourteenth prayers of the caveatee. 'The first prayer of the caveators which was granted, relates wholly to the question of the testamentary capacity of the testator, which was raised by the third issue.

As that issue was found for the appellant, and she was not therefore prejudiced by said' prayer, and as no new trial will be awarded, we think it unnecessary to notice that prayer. This prayer, is however sanctioned by Higgins vs. Carlton, 28 Md., 115 , and affirmed by this Court. By the second prayer of the caveators, the Court instructed the jury that if they found that the caveatee, or her mother Mrs. McDonald, for the purpose of influencing the testator in making his will, raised prejudices in the mind of the testator against those who would otherwise have' been the natural objects of his bounty, and by contrivance kept him from intercourse with such persons, to the end that those prejudices or impressions which she, ³³⁵ or they knew he had thus formed to the disadvantage of such relatives, (if the jury so believe,) might not be removed, then the jury are entitled to consider these facts, in connection with other facts in the case, in deciding the issue of undue influence. This hypothetical manner of presenting facts to the jury has no doubt been sanctioned by this Court in Colvin vs. Warford, 20 Md., 357 .

The Court say in that case that the obvious purpose of those prayers was to remove from the minds of the jury all doubt as to the propriety of considering the facts thus presented in the proposed connection. In effect they simply enunciate the proposition that certain facts which the jury might otherwise have disregarded, constituted evidence, and if there was no error in thus declaring these facts to be evidence, the party was entitled to the instruction. In Layman vs. Convey, 60 Md., 286 , this identical prayer was granted by the lower Court, but the question was not passed upon by this Court. How if the hypothetical facts stated in this instruction were found by the jury to exist, they were certainly proper to be considered by the jury, in connection with other facts, in determining their verdict on the issue of undue influence.

But we cannot approve the practice of granting prayers of this description. When the evidence has been admitted the fact of its admission gives the jury the right to consider every fact in the case that is proven to their satisfaction. It is not the proper office of the Court to call the attention of the jury to this or that fact, and inform them that they may take it into consideration in making up their verdict. Such instructions coming from the Court, are apt to give undue weight and prominence to the fact thus called to their attention.

It is a practice liable to abuse, and to mislead. But while we think the prayer should not have been granted, we do not think the error sufficient to authorize ³³⁶ a reversal of this judgment. By a reference to the tenth, eleventh, twelfth and thirteenth prayers which were all conceded, the jury were fully instructed, as to the law relating to undue influence, and of what they must he satisfied before they could find a verdict for the caveators on that issue. By these instructions the caveatee obtained as full and favorable a statement of the law, applicable to thé facts of her case, as she was entitled to.

Any injury she might have sustained by this prayer standing alone, we think was prevented by the granting of her prayers. Under such circumstances we do not feel authorized on account of this prayer to send the case back for a new trial. The second prayer of the caveatee was properly refused. It announced a mere abstract legal proposition, and might with equal propriety have been granted in any case where the evidence was' circumstantial, as the case at bar.

A part of this instruction is taken from the opinion of this Court in Davis vs. Calvert, 5 Gill & John., 269. But we have said in more than one case, that the exact language of this Court used in an opinion in one case, and izicorporated in an instruction in another case, does not necessarily make that instruction correct. The caveatee’s third prayer asked the Court to instruct the jury that what the testator said shortly before his death were his wishes’, could not be regarded by the jury as invalidating his will, if the jury found that at the time of its execution the testator was of sound mind, and not unduly influenced, and that his. said will could not he changed or set aside by word of mouth only. This prayer announced the legal proposition that the declarations of the testator, did not revoke his will, and that a will once duly made by a competent testator, could not be revoked by parol.

Of the correctness of this as a legal proposition there can he no doubt. But there was no issue made in the case of the revocation of the will, and the law so asserted was ziot applicable to the issues then ³³⁷ being tried, but was irrelevant and immaterial thereto, and therefore properly rejected. The caveatee’s fourteenth prayer asked the Court to say to the jury, that there was no legally sufficient evidence before them of the mental