Robinson v. Jones

⁶⁴ Schmucker, J., delivered the opinion of the Court. This is an appeal from rulings of the Circuit Court for Dorchester County made during the trial of issues under a caveat to an alleged will of the late Mary A. Jones. The issues had been sent for trial to the Circuit Court from the Orphans’ Court of the same county, where they had been framed in a form agreed upon by the counsel for all parties to the controversy. The issues were “(i) Was the paper writing, bearing date the 23rd day of May A. D., 1905, and purporting to be the last will and testament of the said Mary A. Jones, executed and attested, in due form, as required by law ?

(2) Was the said Mary A. Jones, on the twenty-third day of May A. D., 1905, at the time said paper writing, dated as aforesaid, and purporting to be her last will and testament, was executed, of sound and disposing mind, and capable of executing a valid deed or contract ? (3) Was the said paper writing, purporting to be the last will and testament of the said Mary A. Jones, procured by undue influence, exercised and practised upon her? (4) Were the contents of the paper writing, mentioned in the proceedings in this case, purporting to be the last will and testament of the said Mary A. Jones, bearing date the twenty-third day of May A. D., 1905, read to or by the said Mary A. Jones, or known to her, at or before the time of the alleged execution thereof? (5) Is the said paper writing, purporting to be the last will and testament of the said Mary A. Jones, the last will and testament of the said Mary A. Jones ? '(6) Was the said paper writing, purporting to be the last will and testament of the said Mary A. Jones, and dated the twenty-third day of May, A. D. 1905, admitted to probate, as her last will and testament, by the Orphans’ Court or by the Register of Wills of Dorchester County, previous to the filing with the said Register of Wills, or with said Orphans’ Court, of any caveat against said paper writing, as her last will and testament ? ⁶⁵ (7) What parts (if any) of said paper writing were unknown to or misunderstood by said Mary A. Jones, at the time of the alleged execution thereof.

(8) What part or parts (if any) of said paper writing were procured by undue influence, exercised and practiced upon the said Mary A. Jones.” At the trial in the Circuit Court the verdict was, on issues Nos. 1, 2, 4 and 5 for the caveators — on issue No. 3, for the caveatees — on issue No. 6 “no probate” — on issue No. 7 “all parts unknown” — and on issue No. 8 it was for the caveatees “none.” The element of undue influence was eliminated from the case by'the action of the Circuit Court, at the close of the evidence for the caveator, in granting the caveatees prayers asserting that there was no legally sufficient evidence to warrant a verdict for the caveator under the third and eighth issues. The substantial questions raised by the other issues, except the sixth which will be noticed hereafter, were the testamentary capacity of the deceased, the due execution of her will and her knowledge of its contents when she made it. At the argument of the appeal in this Court it was stated by counsel for all parties that the issue of testamentary capacity was the one on which the case hinged. It appears from the uncontradicted evidence that the testatrix was about seventy-seven years old when she made her will on Tuesday, May 23rd, 1905, and that she died three days thereafter.

She left surviving her but one child, the caveator, Albert F. Jones, who was about forty years old and had three living children, two grown daughters and one young son named Mobray. ■ Her entire estate real and personal was worth about three thousand dollars. By her will she gave to her son, Albert F., the plantation, on which he formerly lived, for his life with remainder to his children, and to Albert’s son, Mobray, she gave her money in the savings bank to be paid to him at stated times. The residue of her estate, after the payment of her debts including proper compensation to George D. Murphy and his wife for their attention to her during her ⁶⁶ sickness, she gave in equal shares to her son Albert and his children. She had been a widow for some years and during the four years prior to her death she had spent much of her time at the house of George D. Murphy where she died.

For sometime prior to her death she suffered from a tumor on her breast, and a cancer in her stomach which ultimately destroyed her life. What may be described as her last illness lasted from May 14th to 26th, 1905, during which period she suffered great pain. ■Dr. Connoway, who was her medical attendant during her last illness, was put upon the witness stand by the caveators and testified in substance as follows. He called to see her on the 14th of May and prescribed for her without making a thorough examination of her case. By the 19th he became convinced that she was beyond the reach of curative efforts and he then “directed his treatment towards allaying and relieving her suffering and placed her on opiates, opium, morphia and tincture of cannabis indica to be given every three hours alternatively in doses of 2 grs. opium, 1-6 gr. morphia and 20 to 30 drops of cannabis indica, unless asleep, and often enough to keep her under the influence of it.” He gave the medicine for Mrs. Jones to Mrs. Murphy with whom he testified that he left about dozen pills on each occasion and also left the bottle of cannabis indica.

He did not know whether the medicines prescribed by him had been given to Mrs. Jones or not, he said Mrs. Murphy told him that she had given them as prescribed but does not say whether she said so before or after the will was made. He further testified that on May 21st he found Mrs. Jones in a very weak and almost insensible condition but admitted that he then at the request of Mrs. Murphy and to please her, “told Mrs. Jones that she was not going to live long and that if she had any business to fix she had better do it, and she replied that she had none, that all her business was attended to.” Upon cross-examination he said that “he knew nothing about her condition on May 23rd, the day on which she made the will, from seeing her as ⁶⁷ he did not see her on that day, but from professional knowledge he knew what it must have been,” but he did not say what he thought her condition must then have been. There was, as there usually is in such cases, much very conflicting non-expert testimony as to the testamentary capacity of the testatrix when she made her will. The witnesses who knew her agreed that she was, when in a normal condition, a person of intelligence with a fair degree of business ability and some of them regarded her as unusually shrewd and capable.' The witnesses for the caveator in describing her condition on the 22nd and 23rd of May said that she seemed to be “in a stupor,” “her eyes half closed,” “mouth half open,” unable to recognize the friends who spoke to her and not noticing anybody or] anything, &c.

On the other hand the witnesses for the caveatees, including the subscribing witnesses to the will, testified positively that at'and about the time of the execution of the will the mind of the testatrix was clear and that she fully understood what she was about. James T. Robinson, the draughtsman of the will, testified that on May 23 rd when he took her instructions for the will “he found her mind perfectly clear, that she gave him full directions how to draw the will telling him of her property and how she wished it left” * * * “that he drew the will exactly as she directed him and read it over to her twice before it was signed” and that she approved each and every part of it. With this conflicting non-expert testimony upon the crucial point in the case before the jury their minds would naturally turn for assistance in reaching a conclusion to the expert medical testimony produced before them as to the probable effect upon the testatrix’ mental condition of the narcotic remedies which Dr. Connoway had directed to be administered to her for some days prior to the making of her will. It was under these circumstances of especial importance for the Court to exercise a strict supervision over the admission of that class of evidence.

In the Berry will case, 93 Md. 560 , we commented somewhat at length upon the danger of reach ⁶⁸ ing inaccurate conclusions by placing much reliance upon expert testimony founded upon mere hypothesis. We there said “it is of the utmost importance when the testator is not present to speak for himself, or to be seen by the jury or to be personally examined ¿s to his mental condition that especial care be taken by the Courts to restrict within the narrowest. limits consistent with settled rules of law this hazardous species of evidence.” It would be highly improper to permit to be put to the expert witness a hypothetical question based upon assumed facts which the evidence in the case neither proved nor tended to prove. In the present case the caveator to prove the mental condition of the testatrix when she made the will put upon the stand Dr. Guy Steele, who had practiced medicine for nine years, and Dr. John Mace,'who had practiced medicine for eighteen years, but neither of whom had ever seen the testatrix. Each one of these two physicians was asked by the counsel for the caveator the following