Plummer v. Livesay

Marbury, C. J., delivered the opinion of the Court. Appellees, the only son and granddaughter (daughter of a deceased daughter of the testator) filed a caveat after probate of the will of Robert L. Livesay in the Orphan’s Court for Harford County. Eight issues were ordered sent to the Circuit Court for Harford County to be tried by jury. At the close of the caveators’ case, the seventh and eighth issues were withdrawn by agreement, and the court directed verdicts in favor of the caveatee on all issues except the fourth.

The case then proceeded on this issue, which was whether the purported will dated April 22, 1948, was executed by the testator when he was of sound and disposing mind, and capable of executing a valid deed or contract. At the end of the whole case, the caveatee filed a demurrer prayer to the fourth issue, but the court refused this prayer. The jury brought in a verdict for the caveators, answering ‘%io” to the fourth issue. Thereafter the caveatee filed a motion n. o. v. which was overruled by the court.

Thereupon an appeal was taken to this Court. In addition to the question raised by the demurrer prayer to the forth issue, and by the motion n. o. v., appellants also have a number of exceptions to the rulings of the trial court on evidence. Three of these, which relate to the opinions given by lay witnesses as to , the mental incapacity of the testator, have a direct bearing on the question whether the jury should have been instructed to find a verdict for the caveatee on the fourth issue. ⁴⁵³ The testator was a man of about seventy-five years of age who had moved to Harford County from North Carolina about 1920 and had purchased a 200-acre farm which he operated until he sold it in February, 1943. He died on August 5, 1943, leaving a widow, who had been married to him about fifty years, four living children, a son and three daughters, the latter all married.

He also had another daughter, who had died, leaving two children, one of them being one of the caveators. Until the spring of 1942, the testator had been in good health, but about that time he was taken ill. The nature of his illness is variously described as high blood pressure, stroke, hearth disease, and kidney disease. From that time on, his physical health was constantly deteriorating until he eventually died.

In February, 1943, he sold the farm, and the following month moved to the farm of his grandson who was the son of the appellant, the executor of his will. The son had married and had a family of his own and was living in New Jersey. The other caveator had been brought up by the testator and his wife after the death of her mother, but had subsequently married. She lived on the farm until it was sold, but after that she did not live with her grandparents, but saw them quite frequently.

By the will, one daughter who was the wife of the executor and the mother of the grandson at whose farm the testator was living, was given a bequest of $1,000. The only son was given $100, the two grandchildren, who were the children of the deceased daughter, were given $100 each, and all the rest and residue of the estate was given to the three married daughters equally. The will contains a provision that the wife is given nothing because she has released all her interest in the estate for a consideration of $5,000 which was paid her on the date of the execution of the will. The testimony shows that the agreement to do this was signed at the same time as the will and that the $5,000 was paid to the wife.

If the evidence produced by the caveators was insufficient to permit the case to be considered by the jury, ⁴⁵⁴ then, of course, all rulings other than those relating to this question, need not be passed upon. We, therefore pass to the determination of this question, and those rulings on evidence directly related to it. These are those admitting the opinion of lay witnesses as to incapacity. The admissibility of opinions of lay witnesses as to the mental incapacity of a testator has been considered many times by this Court.

The rule is that such opinions, if founded upon facts which would justify reasonable men in holding them, are admissible as being,’ themselves, facts. In order to render them admissible, therefore, there must be first shown to the Court both the pertinent facts upon which the opinions are based, and the opportunity the witnesses had of observing the testator. It is not sufficient for a lay witness to show that he, or she, knew the testator for a period of time long enough to observe his conduct. This testimony alone does not justify the admission of the opinion of the witness as to his mental capacity.

Such a so-called naked opinion can only be given by the witnesses to the will. All other lay witnesses must show sufficient facts to justify, in some measure, their views. If the underlying facts are not sufficient, then the Court will not permit the opinion to be given. In the long line of cases establishing this rule, perhaps the best statement of it is to be found in the case of Johnston v. Schmidt, 158 Md. 555 , 149 A. 283 .

In that case the Court, speaking through Judge Digges, said, 58 Md. on page 568, 149 A. on page 288: “When the issue is one of sanity or insanity, or the question of whether the testator was competent or incompetent, over a long period, to execute a will, a lay witness who has had the opportunity and has become acquainted with the characteristics, habits, actions, conduct, and demeanor, gained through various business transactions over that period, has knowledge, and his statement of the result of such an association is more than an opinion. His observation of and contact with the testator has resulted ⁴⁵⁵ in fixing an impression in his mind as to the testator’s mental capacity as certainly as the handwriting of one may become knowledge to another, or the identity of a person may be testified to as a fact. The many and varied incidents covering a period of years, which result in this knowledge, could not be expected to be given in detail by the witness, and therefore his impression, which this court has said amounts to knowledge, and is not mere opinion, is permitted to be given to the jury on such an issue. Even if in exceptional cases such a witness was able to give all the facts which resulted in the impression equivalent to knowledge, it would be improper to require it because of the time such practice would necessarily involve.

In such a case it is only necessary that the witness give what might be termed samples of the facts upon which he bases his conclusion, so that the court and jury may understand that it does not rest upon frivolous and inconsequential occurrences, but has a rational foundation. On the other hand, when the question is not one of sanity or insanity, but is one of incapacity shown to be due to the temporary dethronement of the mental, faculties by the administration of opiates, the obscuration resulting from the near approach of death, or the like, witnesses can, without difficulty and without consuming much time, state in detail the facts as they existed, which, when stated, place the jury in equally as advantageous position to determine the capacity of the testator as the witness could possibly be, and therefore the opinion of the witness amounts to no more than saying that if he were on the jury he would find that the testator had capacity or lacked capacity, as the case might be.” In the earlier case of Kerby v. Kerby, 57 Md. 345 , the Court said: “The rule is now well established, that a sufficient foundation must be laid for an opinion, and that non-experts cannot be permitted to give it, without giving the facts and circumstances on which the opinion is based. Waters v. Waters, 35 Md. 531 . This is to enable the jury or tribunal on whom devolves the duty of decision to judge of the value of the opinion ⁴⁵⁶ expressed; for if the opportunity of forming a judgment has not been good, the opinion will be of little or no value.” The same idea is expressed by Judge Delaplaine in the late case of Doyle v. Rody, 180 Md. 471 , where, at page 481, 25 A. 2d 457 , at page 462, he said: “But a non-expert witness is qualified to express an opinion as to a testator’s mental capacity only where the acts and circumstances, of which the witness had personal knowledge, are sufficient to form a basis for the formation of rational opinion.

He must state the facts as far as he can and disclose what led to his conclusion. If the whole testimony of the witness fails to show facts sufficient to justify the conclusion reached by him, he should not be permitted to express an opinion.” The same idea was expressed by Judge Grason in the case of Finch v. Lee, 184 Md. 98, 103 , 40 A. 2d 371, 374 , where he said: “An opinion expressed by one who knew a testator for years and had intimate relations with him in business and social affairs, is in the nature of knowledge, and received in evidence as such. * * * It can -be shown that a testator, prior to the date of the execution of his will, was incapable, and a lay witness can express an opinion if a sufficient foundation has been laid from which it appears that such opinion is tantamount to knowledge or a fact. So, too, it may be similarly shown that after the execution of a will a testator was incapable. But, in either instance, if such testimony stands alone and there is no evidence tending to show that such incapacity before the date of the will continued to the date of its execution, it is legally insufficient to establish incompetency at the date of the execution of the will.” Among the other Maryland cases which have so held in an unbroken line are Townshend v. Townshend, 7 Gill 10 at page 27; Dorsey v. Warfield, 7 Md. 65 at page 73; Weems v. Weems, 19 Md. 334 at page 345; Waters v. Waters, 35 Md. 531 at page 542; Williams v. Lee, 47 Md. 321 at page 326; The Berry Will Case, 93 Md. 560 at pages 579 and 580, 49 A. 401 ; Struth v. Decker, 100 Md. 368 at pages 378, 379, 59 A. 727 ; Grill v. O’Dell, 113 Md. 625 at page ⁴⁵⁷ 635, 77 A. 984 ; Harris v. Hipsley, 122 Md. 418 at page 432, 89 A. 852 ; Smith v. Shuppner, 125 Md. 409 at page 417, 93 A. 514 ; Daugherty v. Robinson, 143 Md. 259 at page 266, 122 A. 124 ; Cronin v. Kimble, 156 Md. 489 , page 496, 144 A. 698 ; Smith v. Biggs, 171 Md. 528 at page 535, 189 A. 256 ; Acker v. Acker, 172 Md. 477 at page 487, 192 A. 327 .

The contention of the appellants is that no sufficient facts are stated by the three lay witnesses who testified to the testator’s incapacity to justify the admission in evidence of their opinions. It becomes necessary, therefore, for us to examine the evidence of these witnsses with this contention in view. Mrs. Myrtle Livesay, widow of the testator, testified that the latter was seventy-five years old at the time of his death and that he had been sick about a year. He had high blood pressure and a slight stroke at the beginning, and he never got better and gradually became worse.

She said: “His mind failed considerably and he could only talk rationally for a few minutes. He could not go any distance rationally. He would get mixed up and he was that way all during his sickness. * * * Sometimes he could not understand what I was saying to him. * * * He could not understand what he read and what he was reading. * * * Part of the time he could go on for a short time and then he would not know what we were talking about. He would start to tell you something and he would get all mixed up in a little while.

He could not go on for any length of time or any distance or anything like that until he was all mixed up. He could not write a letter. He would start a letter, but he would get all mixed up and could not finish it.” She was then asked what was his mental condition on the day the will was signed and she said: “He could be rational when you talked to him; he could answer you rationally for a few short