Ortel v. Gettig

Brune, C. J., delivered the opinion of the Court. The executor of the estate of Henry Gettig appeals from a decree in favor of Gettig’s widow declaring a prenuptial agreement dated April 7, 1937, between Gettig and the appellee (then Cora A. M. Gebauer) to be null and void. This agreement recited that it was intended that a marriage between the parties was “shortly to be solemnized” ⁵⁹⁸ and it provided for the mutual relinquishment of rights in each other’s property, so that after the marriage each party might enjoy and dispose of his or her property by deed or will as if the marriage had not taken place. It further contained .provisions by which the prospective wife relinquished all claims to alimony or counsel fees in case of separation or divorce, and also a mutual relinquishment of rights to administer upon each other’s estates, unless named by will as executor.

Both parties had long been residents of the Highland-town district of the City of Baltimore. Henry Gettig had an electrical store and contracting business on South Highland Avenue. He had been married previously and he and his first wife had one child, a son, William Irvin Gettig. The first Mrs. Gettig died in 1920, and the son continued to live with his father in a second floor apartment over the store until the son’s marriage in 1927, when he went to live next door.

The father continued to live in the same place as previously, and lived there alone until his marriage to the appellee in May, 1937. The appellee lived about two blocks away in a house on Bouldin Street which she had inherited from her mother. The father and son continued to work together in the electrical business until 1949, when the father gave his interest in the business, but not in the buildings in which it was conducted, to the son. The trial court found that the business was a “most successful enterprise in 1937 and continued as such until 1949”.

There was, however, no testimony as to its value in either year, nor does it appear that the appellee interposed any objection to the gift made by the father to the son in 1949. The questions presented on this appeal are divided into two groups — first, those pertaining to the admission of evidence relating to transactions between a party (the plaintiff) and the testator, and, second, those pertaining to disclosure or nondisclosure of the property owned by the testator at the time of the execution of the ante-nuptial agreement. ⁵⁹⁹ I. Evidence — Transactions between the Plaintiff and the Testator. Code (1951), Article 35, Section 3 provides in part that “In actions or proceedings by or against executors, administrators, heirs, devisees, legatees or distributees of a decedent as such, in which judgments or decrees may be rendered for or against them, * * * no party to the cause shall be allowed to testify as to any transaction had with, or statement made by the testator * * * unless called to testify by the opposite party, * * * The questions with regard to the admission of evidence are somewhat confused, partly, at least, because of the rather considerable amount of repetition in the testimony. We shall attempt to segregate by subjects the evidence which the appellant claims was improperly admitted and to deal with each of those subjects.

(a) The Marriage. The appellant objected to the appellee’s testifying with regard to her marriage to the testator. This objection finds support in Denison v. Denison, 35 Md. 361, 381 ; Redgrave v. Redgrave, 38 Md. 93, 96 ; Bowman v. Little, 101 Md. 273, 295 , 61 A. 223 ; and Whitehurst v. Whitehurst, 156 Md. 610 , 145 A. 204 . On the other hand, even while making this objection, the appellant conceded that he did not allege that the plaintiff was not married; and when the court called for the production of the marriage license and the plaintiff produced and identified her marriage license and certificate and they were offered and admitted in evidence, the appellant offered no further objection.

Such documents were a proper means of proving the marriage. Schroder v. State, 206 Md. 261 , 111 A. 2d 587 . If there was any irregularity in their being identified by the plaintiff, we think it was waived. Furthermore, Irvin Gettig, the son of the testator and the principal beneficiary under the will, later gave testimony which fully recognized and acknowledged the marriage.

(b) The Engagement. The plaintiff testified, over timely objection, to the fact that she had been engaged to the testator prior to the execution of the ante-nuptial ⁶⁰⁰ agreement. We think that it was erroneous to admit her testimony to this fact, but we also think that the error was harmless. In the first place, the attorney who drew the ante-nuptial agreement testified that at the beginning of the conference at which the agreement was signed, Mr. Gettig “introduced me to his prospective wife” and that they got down to business “after the usual cordialities of such an occasion.” In the second place, the agreement itself recites that “a marriage is intended shortly to be solemnized” between the parties.

Both of these items give rise to a logical inference that the parties had already agreed to marry. However, even if they were not actually engaged until the agreement was signed, this would seem to be of no great importance under Levy v. Sherman, 185 Md. 63 , 43 A. 2d 25 , which is more fully referred to later in this opinion. (c) Execution of the Agreement. The fact of execution of the ante-nuptial agreement was fully proved by the testimony of counsel who drew it and who was present when it was signed.

Actually, as a result of the objections of the defendant, the plaintiff was restricted, so far as the execution of the document was concerned, to identifying her signature and having the document marked for identification. It was not put into evidence through her. It was testified about rather extensively by counsel who had drawn it, who was called as a witness by the defendant, and it was actually offered in evidence by the defendant himself. (d) Information with regard to the Testator’s Financial Worth.

This subject came up first through a question by the court towards the end of the plaintiff’s direct examination. She testified that at the time of the execution of the agreement, she did not know his financial worth. It was next brought up by the defendant on cross-examination of the plaintiff when the defendant was seeking to show her knowledge of the testator’s business and of real estate apparently owned by him, and was again brought up at a later stage of cross-examination in an effort to show that the plaintiff did not make any inquiry ⁶⁰¹ as to Mr. Gettig’s worth because she already knew it. She consistently denied knowing his financial worth, and when the subject was brought up for the second time during her cross-examination she added “I had faith in the man I married to tell me those things” and that it was up to him to tell her.

The defendant interposed no objection or motion to strike either of those answers. When the plaintiff’s counsel went into this same subject on redirect examination by inquiring whether any disclosure of Mr. Gettig’s financial worth had been made to her, the defendant objected to the question because it did not state time. The court supplied this omission by relating it to the time of execution of the agreement or any time prior thereto and then overruled the objection. The defendant did not note an objection to the question as amended by the court nor did he move to strike the answer, which was “No, sir.” The appellant contends that he had objected sufficiently to any testimony by the plaintiff with regard to any transaction with or statement by the testator and that he was not required to keep reiterating objections, relying upon Giering v. Sauer, 120 Md. 295 , 87 A. 774 , a jury case which also involved Section 3 of Article 35 of the Code.

There are, however, several cases in which it has been held that a general objection made under that same section to so much of the testimony as relates to transactions had with the decedent or to statements made by him is not sufficient. Worthington v. Worthington, 112 Md. 135 , 76 A. 46 ; Russell v. Carman, 114 Md. 25 , 78 A. 903 ; O’Connor v. Estevez, 182 Md. 541 , 35 A. 2d 148 . The difficulty pointed out in the latter cases of going through the testimony and picking out those portions of it subject to the general objection is present in this case; and we note that at one point, when the defendant’s counsel stated that “We are making objections to all testimony with respect to transactions with the deceased, automatically,” the court said “Not automatically. If you have a reason for objecting, you object.”; and that the defendant’s counsel replied, “Yes, sir.” ⁶⁰² In our view, under Heil v. Zahn, 187 Md. 603 , 51 A. 2d 174 , the testimony of the plaintiff elicited by the defendant on cross-examination was admissible.

There does not seem to have been a timely objection to the first question along this general line, which was put by the court during the plaintiff’s direct examination, if that question was open to objection. The defendant’s specific objection to the testimony on redirect examination also, in terms, went to only one thing — time—and that objection was met. However, in the view which we take of the requirements of disclosure, it is not necessary to decide whether either of the defendant’s two last mentioned objections to testimony on this subject were well or sufficiently taken. See Lednum v. Barnes, 204 Md. 230 , 103 A. 2d 865 , where it was found unnecessary to determine whether a party was properly permitted to testify that he had not received notice of a matter from the decedent, because the burden rested upon the opposite party to prove that such notice had been given and there was no such proof.

We may add that even if the above mentioned testimony elicited on cross-examination were excluded, the result of the case would be the same because of our views with regard to non-disclosure. (e) Statements' by the Testator. In addition to testimony as to the absence of statements by the testator, the plaintiff testified to some statements alleged to have been made by him. In some instances no objection was noted by the defendant; in others objections were noted, and in at least one instance, a motion to strike an answer containing such a statement was first overruled but later granted.

The same questions and difficulties about making or repeating objections are present here as with regard to information about the testator’s financial worth. Again because of our view on the requirement of disclosure we do not find it necessary to decide whether these objections were sufficient or not. (f) Effect of Presence of a Third Person. The appellee seeks to sustain the admission of testimony by the plaintiff with regard to what was said at the conference at which ⁶⁰³ the ante-nuptial agreement was executed on the ground that the purpose of the pertinent evidence statute was not violated because of the presence of a third party, Mr. Gettig’s counsel.

She cites Tillinghast v. Lamp, 168 Md. 34, 41 , 176 A. 629 , in support of this contention. We do not, however, find that the statement in that case to the effect that the purpose of the statute is to eliminate, as far as possible, frauds upon the estates of deceased persons by barring the testimony of interested parties who could fabricate evidence without fear of contradiction by the decedents goes so far as to support the admission of the plaintiff’s testimony as to transactions with, or statements by, the testator. The statute states no exception to the rule because of the presence of a third party, and nothing in Tillinghast v. Lamp suggests that such an exception can be implied. In Evans v. Buchanan, 183 Md. 463 , 38 A. 2d 81 , there were conversations between Miss Buchanan, one of the plaintiffs, Mr. Niner, the decedent, and Miss Campbell, a third party.

There was also a subsequent conversation between these persons and a Mr. Downs, who was the other plaintiff. The agreement sought to be proven and enforced was made through those conversations between Mr. Niner on the one hand and Miss Buchanan and Mr. Downs on the other. In discussing the problem of proof, this Court said: “As Niner is now dead and Miss Buchanan is incompetent to testify as to any transactions with or statements made by him, because of the provisions of Section 3, Article 35, Code 1939, we have only the testimony of Miss Campbell as to this and subsequent conversations between Niner and Miss Buchanan.” A somewhat similar situation existed in Snyder v. Cearfoss, 187 Md. 635 , 51 A. 2d 264 , in which the plaintiff herself was barred from testifying, but her son, who was present at a conference between a testator, whose executrix was a party to the case, and the two intestates of whose estates the plaintiff was administratrix, was a competent witness as to what was said at that conference. The presence of a third person who is com ⁶⁰⁴ petent to testify as a witness does not remove the bar of the statute so as to permit a party to testify.

The general purpose of the evidence statute to equalize the position of the parties by imposing silence upon the survivor as to transactions with or statements by the decedent has been commented on repeatedly from as early as Pairo v. Vickery, 37 Md. 467, 488 , to as recently as Kenny v. Peregoy, 196 Md. 630, 641 , 78 A. 2d 173 . Criticisms of the statute and others like it have been noted, but the statute is recognized as binding in the situations to which it applies. O’Connor v. Estevez, supra. It has been enforced in numerous cases, but it has not been extended beyond what its terms require.

See Weir v. Baker, 181 Md. 249 , 29 A. 2d 269 , where no personal representative of a decedent husband was made a party after his death and the wife was permitted to testify with regard to the holding of property which had been levied upon on a judgment against the husband alone in a suit instituted by the husband and wife claiming that the seized property was owned by them as tenants by the entirety. The appellee’s brief states (in an obviously incomplete sentence) that “the evidence rule has never been held to prevent the introduction by the surviving spouse [* * *], where same had been made as in the present case in contemplation of marriage. This was done in the case of Levy v. Sherman, 185 Md. 63 and other cases of similar nature.” The above brackets and asterisks indicate the point at which we suppose some words were omitted. We further assume that the supposedly omitted words would have been something like this: “of testimony relating to an agreement with the decedent spouse.” If so, the statement is erroneous at least so far as Levy v. Sherman is concerned.

A short examination of the briefs shows that the evidence statute was applied (with one exception in the trial court mentioned below) and that the plaintiff was not permitted to testify with regard to -the making and execution of the contract, and the ap ⁶⁰⁵ pellee’s brief asserts that as a result, the case was devoid of any testimony with regard thereto. The one exception was that the plaintiff was permitted to testify, over objection, to having been engaged to the decedent at a time shortly before the execution of the contract. The inadmissibility of this evidence under Section 3 of Article 35 of the Code was strongly urged in the appellee’s brief. The opinion of this Court did not rule on this objection made by the appellee.

The views expressed as to the unimportance of whether the parties became engaged just before or just after the execution of the ante-nuptial agreement made a ruling on this point unnecessary. (We shall revert to this later.) A careful reading of the opinion will show that it sets out a number of allegations of the bill with regard to the execution of the agreement which, we may assume, the plaintiff would have supported by testimony if she had been permitted to do so. In stating the facts upon which the Court based its conclusions those matters were omitted, and the Court expressly stated ( 185 Md. 63, 78 , 43 A. 2d 25 ) : “Without giving consideration to any of the evidence of the appellant concerning transactions she had