Scheller v. Schindel

Adkins, J., delivered the opinion of the Court. This is one of the numerous will contests which abound in our reports. The will in controversy is that of Dr. Christian R. Scheller, who, during a long professional career, had been continuously a general practitioner of medicine in the City of Hagerstown up to within about ten days of his death, on March 6th, 1926. The testator had been in poor health for some months, but the beginning of his final illness began a few days before the day of the sale of his household and personal effects, which he had at his home eight days before his death.

At the sale, which was on Friday, and for several days preceding it, he complained of feeling ill with severe pains in his chest, and on the evening of that day he drove to the home of one of his sisters, Mrs. Annie Oiler, where he had removed such of his furniture and effects as he desired to keep, and remained there until he died. A sister, Mrs. Margaret Schindel, who was not named as a beneficiary of the will, is the caveator, and the single issue submitted to the jury was that of mental capacity. Originally all the usual issues were included, but the court by properly granted prayers eliminated the others. The jury found for the caveator, and this appeal is from adverse rulings at the trial.

There are sixty-eight bills of exceptions in the record, one of which relates to the ruling on the prayers and all the ⁵⁵¹ others to rulings on testimony. Of these the following were abandoned in appellant’s brief: Nos. 16 to 19, inclusive; Nos. 22, 29, 32, 34, 48 to 61, inclusive, and Nos. 63 to 65, inclusive. As the most important exception is to the refusal of defendant’s third, a demurrer, prayer, in the 68th exception, we will consider that first; and in doing so, it will be necessary to review all the testimony, because in cases of this kind it is important to get the whole picture, in order to properly appraise the bearing of the several parts. Incidents which might be of great importance, in determining the mental capacity of one man in one set of circumstances, would not even tend to prove incapacity in the case of a different man in different circumstances.

Of course, it must not be forgotten that the jury is the judge of the facts, if there are any facts proved in a given case from which a reasonable mind could find for the plaintiff. But if, in a will contest, on consideration of the whole case, the court is satisfied that there is no testimony made to bear such relation to the condition of the testator at the time of malcingt his will that a reasonable mind could infer from it that at that time the testator was incapable of executing a „ valid deed or contract, then it becomes a question of law to be decided by the court. Berry Will Case, 96 Md. 45 , 93 Md. 560 ; Gesell v. Baugher, 100 Md. 688 ; Baugher v. Gesell, 103 Md. 458 ; Kelly v. Kelly, 103 Md. 556 ; Birchett v. Smith, 150 Md. 377 . Defendants produced, six apparently disinterested witnesses, viz: Dr. W. Howard Yeager, Dr. Charles L. Mowrer, Mrs. Bowman, Eussell A. Eldridge and Mrs. Bussell A. Eldridge.

Besides these, Mrs. Anne Oiler, Miss Bessie Oiler, Samuel Scheller, Fred. Scheller and Miss Susan Eowland, beneficiaries under the contested will, also testified. Dr. Mowrer’s testimony was unimportant. He was called in about midnight of March 5th because the attending physician had been called out of town.

He found the patient in bed, apparently resting very well. Witness prescribed for him a tablet of caffeine and a small amount of aeetanilid, ⁵⁵² “does not think the medicine was given him while” witness was there, but is not sure. Dr. Yeager testified that he had been a practicing physision since 1912, in Hagerstown since January, 1920; that he did a little general work, but since the war has specialized in diseases of the chest and in internal medicine; that he was called in to see Dr. Scheller on Tuesday, March 2nd, 1926, about five or six o’clock in the evening. Dr. Scheller told him that he was suffering with a severe pain in the left chest and that he had been feeling badly for about a week, that he had difficulty in breathing.

On the first examination witness found nothing definite and diagnosed the trouble as intercostal neuralgia. That visit lasted about fifteen minutes, during which time the patient answered all questions intelligently. He returned at about ten o’clock the same night, found the patient suffering intense pain, and at that time made a thorough examination, and found the trouble was angina pectoris, and remained until about midnight, until the pain abated. During the two hours he talked with the patient more or less all the time and he answered all questions intelligently, and was perfectly coherent about everything*.

Witness called again the next morning between seven and eight o’clock and found the patient up and dressed. He was in the bath room. He said he was feeling very much better, and remarked “You must have considered me pretty ill last night.” Witness told him he did, that he was suffering with an attack of angina pectoris. He said nothing immediately, but in a little while asked witness if he thought he would be able to attend a case he had in court against the Lime and Cement Company for damaging his orchard.

Witness advised him that this was impossible, that he must keep absolutely quiet. At that time he was perfectly rational and normal. The next visit was on Thursday, late in the afternoon. He was then sitting in a chair by the window; said he was feeling “a whole lot” better.

Witness saw nothing unusual about him; he answered all questions intelligently and discussed the weather conditions; “I remember that.” That was the last visit. Witness had ⁵⁵³ known testator since 1919 and from then until December, 1923, rented an office in his building and saw him frequently; after moving from the building he saw him occasionally, but not as frequently as before; was in consultation with him twice after his return from treatment at Laurel in 1924. Q. Row, Doctor, from your acquaintance with him and your occasional meetings with him in the times you have described, and taking into consideration with your several or more visits that you made to him on March 2nd, 3rd and 4th, immediately prior to his death, and from your own knowledge of Dr. Scheller, would you say that — will you state whether or not on March 5th, the day after your last visit there, at eight o’clock at night of that day, that you would consider him capable of executing a valid deed or contract? A. If he were in the same state as he was on the third and fourth.

He would not have been on the second of March. He was too ill at the time, suffering from extreme pain. On cross-examination the witness said he told Dr. Watkins, when witness got notice from Dr. Scheller to leave his building, that he was glad to leave at that time for the simple reason — -I didn’t say he was insane — for the simple reason that he was under the influence of morphia. Q. And that you were afraid he might burn the building.

Didn’t you say that? A. Yes, sir, I said that— but not that he was insane. I knew at that time what his trouble was. Q. Did you make any examination, or such a complete examination as would enable you to determine whether he had any psychosis on the second, third and fourth of March?

A. I did not, sir. It was not necessary. Q. Why do you say it was not necessary ? A. He was suffering with a definite diseased condition at the time, but his answers to my questions were of an intelligent character.

Q. Then you could not say whether or not he was suffering from any psychosis, could you ? A. I would say that he was not suffering from it. Asked how he could tell if he made no examination, witness said, “Well, lie would certainly show some symptoms ⁵⁵⁴ such as your testimony shows as to rambling speech and so on — some mental attitude there that was abnormal or unusual. (Court) : Doctor, the jury would like to know what kind of treatment you gave him- — -whether you gave him opium ?

A. No, sir, I did not, knowing his past history. I did not resort to opium. It was really indicated in his case, but I didn’t resort to it, knowing his past history. Q. There was no dope used at all ?

A. Not during my attendance, no. I resorted to other means to relieve pain and I waited to see the effect of my treatment. Witness did not give him anything that would cloud his mind. The first time witness realized that testator was taking morphia was in December, 1923.

Mrs. Bowman, a practical nurse, who was accustomed to nurse in confinement cases, had known testator about thirty-five years. She last saw him on February 22nd, 1926, on Monday before his sale. She was with him in a confinement case. “He went about his work as good as any doctor I ever saw.” Saw nothing unusual in his conduct. Mr. and Mrs. Eldridge knew testator intimately from 1921 until his death.

Apparently they were his closest and most congenial friends.- The friendship between them seems to have grown out of boyhood friendship of Mr. Eldridge and testator’s son, who died in 1920. In 1921, after the son’s death, they were with testator for five days at Ocean City at a fruit growers’ meeting, and from that time on they were with him frequently, several times a month, at their respective homes, on automobile rides, at the theatre, or at church. They often took meals at each other’s homes. He was at their home Christmas night, 1925, from nine o’clock until midnight; and seemed unusually happy.

They played five hundred, and he sang. He had a fine voice. The following month he was at their home four or five times and took a meal with them. He cooked his own meals and looked after the furnace.

They spent an evening at his house about six hours, four weeks before his death, and spent the evening playing five hundred. Mr.- Eldridge is in the dairy business and sold milk to the testator during most of these years. He was ⁵⁵⁵ always prompt in his monthly settlements. During the last two or three years of Ms life Mr. Eldridge saw him almost daily.

They were frequently together on all-day automobile trips to Baltimore, Washington and elsewhere. When they went in testator’s car, he always drove and was a very careful and capable driver. Mr. Eldridge saw him the last time two days before he died, while lie was in bed. Talked with him about fifteen minutes.

He said he was feeling better and thought he would be out in a week; said he wanted to make his trip to the coast, and that he wanted to make his will before he left town. In all these years neither Mr. nor Mrs. Eldridge ever noticed anything unusual about his conversation, his manner, his dress or his appearance. He told Mrs. Eldridge about his treatment at Laurel Sanitarium for the drug habit. He always talked intelligently and was a most congenial companion; he talked with Mrs. Eldridge about a month before his death about making a will; said he wanted Mrs. Oiler and Bessie Oiler to be cared for; that he had already provided during his life for his sister Margaret.

He also told Mr. Eldridge that he was not going to provide for her, that she had overcharged him for everything she ever did for him, and that she got more out of the estate of his father and mother than the rest of the children got, and that she was largely responsible for putting him in the Laurel Sanitarium. He continued in active practice up to the time of his last illness. John E. Wagaman, a member of the Washington Oounty bar, practicing in Hagerstown, knew testator for about thirty years; was called in to draw the will and got there about four o’clock in the afternoon of March 5th, 1926; testator was in bed; he gave witness explicit directions for drawing the will; said he thought probably he ought to give something to charity; said he had considered giving to some church a few hundred dollars, but had abandoned that idea. He said he didn’t want to give his sister Maggie anything, but he understood it would be necessary in order .that the will shoiild stand, that it would be necessary for him to provide for her in some amount and asked witness whether that was correct; ⁵⁵⁶ witness told him it was not necessary; that if he did not want to provide fot her in the will he could leave her name out entirely.

He spoke of Ered. Scheller; said he had had some doubt as to whether or not he should provide for him, because he was unaware of his financial position, but he had made a trip down to' see him to ask him about his financial situation, and had concluded to give him $2,500; said he wanted to give Mrs. Oiler’s daughter, his niece Bessie, the automobile and the diamond ring; that he wanted to provide for all of the family except his sister Maggie. Witness asked him the names of his brothers and sisters; testator first gave bim the name of Mrs. Annie E. Oiler, said she spelled it O-l-l-e-r. He mentioned the name of another sister, Katherine A. Emmert, and said she spelled it with a C; that she lived in Pennsylvania and was the wife of David Emmert whom witness knew in his lifetime; said he would give $200 to Susan Rowland, who had been in his employ for a number of years; that Mrs. Oiler, the sister with whom he was living, was to have the furniture in his room; named Samuel Scheller, his brother, the sole executor withokt bond, and gave him all his clothes and gold cuff buttons; and directed that Samuel should hold the property as long as he saw fit, and' then, by a sale or a number of sales, according to his best judgment, he should sell it and also the orchard which he then o*wned; that he told witness he had sold the farm away from the orchard, leaving it cut off from the road; that he had arranged with the purchaser of the farm for a right of way from the orchard out to the road on which the farm fronted, but said that was not satisfactory, that Sam, befo're he sold the farm, should acquire a right of way out to< the other road which was near the orchai’d; he said he had spoken to Mr. Itmire and he promised to let him have a right of way over his field, but he thought a right of way through Mr. Loos’ field would be better.

He said it would be for Sam with witness’ assistance to look after that; that testator after making the specific bequests above mentioned directed that the residue of his estate be divided equally between ⁵⁵⁷ Annie E. Oiler, sister; Catherine E. Emmert, sister; Bessie E. Oiler, daughter of Annie E. Oiler and Samnel Oiler. Witness was there quite a while, probably an hour. “We talked over other things beside the will.” Witness further testified that testator appeared to understand fully what he was doing; had a clear recollection of his property and of the persons to whom he intended to give it, and named them all over to him; understood the manner in which he intended to dispose of his property and the relative claims of the different persons who were or ought to have been the object of his bounty; that witness returned at about eight o’clock with the will prepared according to the above instructions and found the testator in same condition as when he gave the instructions; that he read over the will and discussed its provisions; and testator executed it with witness and his partner, Mr. Ballentine, as witnesses; that on neither occasion did he observe anything unusual about Dr. Scholler’s conduct, speech or manner. At the time of the execution of the will witness and Mr. Ballentine were there about half an hour. Witness further testified that during the last five or six years of testator’s life he had seen him frequently; that he was a client of his for the last year or more, and during the last few months of his life he would see him several times a week, as he had a law suit pending; that at the hour he executed the will he was of sound and disposing mind and capable of making a valid deed or contract.

Harper Ballentine corroborated previous witness as to the capacity and understanding of testator at the time of executing the will, and as to what occurred in his presence. Mrs. Annie E. Oiler testified that she never saw anything 'the matter with testator’s mentality except once, in 1923, when he was in a stupor from taking an overdose of paragoric. He was weak physically at times, but would get all right again; that during his last illness he came down to dinner Tuesday, but after that stayed in his room, part of the time in bed and part of the time he would be up in a chair and walking about the room and into the bath room; that he took no medicine during this illness except that pre ⁵⁵⁸ scribed by the doctor and some stomach medicine and cough, drops she had. Did not complain of pain on Eriday evening, March 5th, until about nine o’clock at night.

In answer to the question, “You noticed nothing unusual ?” witness said, “He was just as calm as he could be. He was more natural than I had seen him for awhile before that.” On cross-examination, in answer to the question, “Did he then say he had given you anything else except the furniture?” she said, “Well, I would come in equally with the rest of them.” Bessie Oiler also testified that he did not complain of pain that day until some time after supper, she thinks about ten o’clock, just before she went to bed; did not know of him taking any medicine except that which was prescribed. Did not notice anything about his conduct except that he was sick. Susan Rowland testified that testator was unwell on the day of the sale, and had to lie down at the beginning of it and after it was over; that she didn’t observe anything unusual about his conduct or speech on that day.

Samuel Scheller was at testator’s sale; testator didn’t take any part in it, except when they came to the books, he would tell the people what they were; after the sale he and testator drove home together to Mrs. Oiler’s, testator driving his Buick car; was with him most of the time during his last illness except Monday; Wednesday afternoon asked witness to go down town and pay off some bills for him and to deposit the checks -from the sale, he having endorsed them; was with him when he died about five o’clock in the morning of March 6th; did not observe anything unusual about his conduct or speech during his illness; that after the will was signed testator said to witness that his sister Margaret was able to live before she was married, and after she was married she would surely be able to take care of fierself, and he was going to give to the others because she didn’t need it, and they would have more to go on. On cross-examination witness was asked: Q. Was he the same then (during his illness) as he was when you were staying with him up at his house ? A. Well, he was not just ⁵⁵⁹ the same as he was then. Q. What was the difference?

A. He knowed what he was doing. Q. Hid he know what he was doing when you were staying up at his house? A. Yes, sir; I think he knowed all the time. Witness admitted on cross-examination, when asked about his going to Hr.

Wertz in October, 1925, and if he didn’t think then that testator didn’t know what he was doing, and wasn’+ capable of taking care of his property, “Well, he wasn’t very capable of taking it then.” Fred P. Scheller testified that about three weeks before testator’s death he came down to witness’ father-in-law, and told witness he wanted to talk with him, and said he hadn’t given him anything in his last will, which he destroyed, as he thought he didn’t need it. and asked witness what he thought about it; witness told him he thought he ought to be remembered. In that conversation he said he was going to make another will and was going to take care of Bess, and was going to make “yonr Uncle Sam” the execntor of the will; that he wasn’t going to leave witness’ Aunt Margaret anything; that she was prepared to take care of herself before she was married, and now she was better prepared. Hefendants offered in evidence a will of testator made in 1921, in which the plaintiff was not named as a beneficiary. Plaintiff produced a number of witnesses to prove peculiar conduct of the testator and hallucinations as to wealth, and that he was addicted to the use of morphia and alcoholic liquor.

Hr. E. Y. Schindel, husband of the plaintiff, who had not practiced medicine for eight years, testified that he had known testator intimately for at least thirty years, and married his sister in Hecember, 1925; that during the period of his acquaintance he saw testator frequently, sometime daily, sometimes twice a day; that they lived only half a block apart and they visited each other. That prior to his death testator was very weak physically; he would take hold of witness’ arm ¡md use a cane when they would go out together; that he was growing physically weaker all the time for the- ⁵⁶⁰ last two years before Ms death, at the age of sixty-five years; his gait was irregular aud jerky, which was not ait all natural to him; that he noticed a decline both mentally and physically itir the last seven years; the beginning of it was a convulsion which he had while sitting on a settee with witness on a warm day; that he noticed a change in his conversation and a gradual deterioration; that he was not the strong vigorous man that he was before, mentally, that he gradually grew worse, until towards the close of his life he was physically disabled to a considerable extent; he could get around but he was not at all strong physically, and mentally weak as well; that from a period of eighteen months or more before his death he had hallucinations — exalted ideas about his wealth and what he was going to accomplish in the* world; spoke about building the largest hotel — that he had bought the property on the corner of one of the principal streets extending almost half a block and was going to* erect the largest and finest hotel in that section; that this was within three or four months of his death; that these hallucinations continued up until the last time witness saw him, which was about eight days before Ms death; the last thing witness remembered was his talk about a trip to California; he said he was going out there* — going to buy out the practice of his preceptor, who' had been practicing there for a number of years; that about a month or two before his death he spoke of going into the chicken business; said he was going to have fifty thousand chickens out in his apple orchard; later said he was going into1 the hog business; another time he was going down to Florida and going into* the orange business; another time he was going to* buy a mill property near his orchard, and put in a hydro-electric plant there and light up that whole community; another time he was going to* build a Methodist Church and a parsonage and employ a preacher; and build himself a palatial residence, and was going to show people how to live; that these conversations were within a few months of his death; that he did noire of these things; that he was not worth over $é5,00’0; that he undertook to stock his farm and bought up blooded Perdieron horses; that ⁵⁶¹ the last part of 1923 and the early part of 1924 he was in Laurel Sanitarium for treatment for the drug habit; he was a drug addict; that during the last years of his life he was a drug addict and drank liquor also; he was generally pretty strongly under the influence of morphia; that during the last year or more he used it continually — daily; and the effect of it was decidedly noticable in his appearance and in his conversation and actions, and he grew weaker from the effect of it both physically and mentally; that he knew as a physician that such use of morphia would affect the mind of a person; that in the last month or so of his life his conversation was very rambling and disconnected; that besides Laurel, he was also under treatment for the drug habit in Tacoma, and at Chappelle Sanitarium in Cumberland, the last, in September, 1925, for about a week; that his condition after he returned from Cumberland was weak both mentally and physically. This witness also said that the medical term for testator’s condition was paresis.

However, he had never treated him nor prescribed for him, but had observed him as a physician, and from what he saw of him that was witness’ opinion; that this disease was progressive; that he saw testator on the day of the sale and he was in a weak condition and his conversation showed that mentally he was in a bad way; that witness retired from practice on account of ill health, but to sotaie extent kept in touch with the medical profession during the eight years of his retirement. He said he thought his past experience in the practice of medicine gave him such knowledge as would enable him to form an opinion as to the capacity of testator to- execute a valid deed or contract on March 5th, 1926; but the record does not show that he stated what his opinion was. On cross-examination this witness admitted that he was himself a morphia addict for twenty-five years prior to-19If, and that year was treated for the habit at Chappelle Sanitarium and cured in three weeks; that he had not used morphia since; that he had never resumed practice; he stated that he thought he had been mentally competent for the past nine years, as he had controlled all of his property and looked ⁵⁶² after all of his own affairs during that time, and thought during all that time he had been capable of executing a valid deed or contract; that he came to the conclusion that testator had paresis in 1919, 1920, or 1921; he said, “Well, there was some mental aberration — there might be a question as to that, I never gave it special consideration, nor made any special diagnosis, but from his appearance and actions I concluded that the man was suffering from softening of the brain”; that he never examined him physically, never submitted him to the usual tests or to any of the ordinary tests; that he formed his opinion “just frota his manner and conversation, and his walk, and what I knew of cases of that kind.” At this point defendants moved that this witness’ testimony as to testator’s suffering with paresis be stricken out. The court evidently didn’t think the testimony was worthy of serious consideration, for the judge said: “Well, he has •already told you that he didn’t know■ definitely whether he was suffering from paresis or not, but thought perhaps he was.” We entirely agree with the judge, that it was not an opinion of any importance.

The witness testified that he had never had any special training in mental diseases. When asked whether he ever attended any cases of mental disorder, he answered: “I said I couldn’t give you any information on that point.” Ignoring the indefinite and uninformed opinion of this witness, there is no testimony in the case of permanent insanity. See Crockett v. Davis, 81 Md. 154 ; Gesell v. Baugher, 100 Md., at pp. 682, 683 and 684; Kelley v. Stanton, 141 Md., at p. 394. Dr. Samuel A. Watkins had known testator since 1898, but didn’t see him so frequently till 1903, then saw him possibly twice a week until 1907, when he moved directly across the street, and from that time until the middle of Eovember,. 1925, when he again moved, saw him on an average once or twice a day.

After that, until the day of the sale, he saw him once or twice a week; attended him professionally on one occasion about a year before his death, ⁵⁶³ when, he took an overdose of paregoric; that he noticed in the latter years of testator’s life he was very nervous and excitable. Sometimes he would be downhearted, sort of morose; at others very talkative — boiling over with big ideas of the things he was going to do — what he had in view; the witness told of the hydro-electric plant project and the chicken farm, which he said testator talked of frequently; said he knew testator was addicted to the use*of morphia to excess and gave his reasons for knowing it, aside from the appearance and actions of testator; also he talked like a man under the influence of morphia, had exaggerated ideas of things, talked irresponsibly and disconnectedly, in a more or less rambling manner; on one occasion, during the fall before his death, he brought a basket of apples from his orchard to show witness, but was unable to name the variety of a single apple; from 1918 to 1926 he was not as strong or active as he had been previous to that, and in the last few years of his life walked with a stoop and with a jerky gait; sometimes he would stagger in the street; that he gradually got worse all the time; that the last time witness saw him was on the day of the sale, on which occasion he was staggering, unsteady in his gait, more or less excited, complained of having pain across his chest, and said he would have to go and take a hypodermic. Witness only saw him a few minutes that day and was unable to testify as to any exhibition of mental deficiency on that occasion, and yet he was permitted to say that in his opinion he was then incapable of understanding the nature of the business in which he was engaged. This was prejudicial error, in the absence of testimony of permanent insanity.

Davis v. Calvert, 5 G. & J., at p. 300; Jones v. Collins, 94 Md., at p. 410; Kelly v. Kelly, 103 Md., at p. 553; Gesell v. Baugher, supra; Harris v. Hipsley, 122 Md., at p. 430; Mecutchen v. Gigous, 150 Md., at p. 83 ; especially as witness had testified that at that time testator was under the influence of morphia. Witness further said his disease was “a morphia psychosis or alcoholic psychosis, morphia particularly. He defined the disease “as a deviation of the mind from the normal.” In witness’ opin ⁵⁶⁴ ion the symptoms in testator’s case were “his manner and conduct, his gait, his manner of walking, his big ideas”; that on March 5th, 1926, testator was not, in the opinion of witness, of sound and disposing mind and capable of making a valid deed or contract. It was prejudicial error over defendants’ objection to permit witness to testify as to the capacity of testator at that date.

The reasons he gave were clearly insufficient to support his opinion. See Berry Will Case, 96 Md., at pp. 60 and 61; Crockett v. Davis, 81 Md., at p. 150 ; Gesell v. Baugher, 100 Md., at pp. 683, 684; Kelly v. Stanton, supra. And it is perfectly clear that witness’ opinion was based on these reasons. At the conclusion of the cross-examination of this witness the court asked: “The mere fact that a man has a phychosis, * * * a morphia psychosis or any other psychosis, would not be any reason for you to believe that he could not make a will.

There are different degrees of psychosis. There are men with psychosis who are able to make a valid deed or contract.” A. “Oh, yes.” Dr. George S. Everhart has been a practicing physician in Hagerstown since 1909. His office was in the same block as that of testator. At first he saw him about once a month, but gradually “I got to going to see him a lot and he would come up to see me sometimes”; was called to see him once “six, seven or eight years ago.” “He was in a fit or convulsion and I treated him for a day or so.” After, that witness saw him sometimes almost every day, passing up and down, and would frequently stop at his house after office hours at night.

This witness relates the incident of a call by testator one night in the fall of 1925, when witness was busy in his consultation room with a patient, and others were in the waiting room. Testator rapped on the door and walked right in and said, “Oh, doctor, I want to see you right away.” Testator had no collar on, his clothing was very much awry; he had one shoe on and one bedroom slipper; and he said, “For God’s sake, give me a drink.” Witness replied he didn’t have any liquor to give him, and offered to give him some medicine. “Well,” he says, “if ⁵⁶⁵ you. don’t have any liquor, please give me some morphia.” Witness told him he would give him a little medicine and come down and see him later. “He was sort of excited and very nervous.” “Q. Just describe his condition ? A. Well, I say, very nervous, very much excited, very much up in the air, and not the Dr. Scheller I used to know. How that had come along gradually up to that point.

Q. Why did you say he was not the same Dr. Scheller you had formerly known? A. Well, in the first place, Dr. Scheller was very much of a gentleman when I first knew him and always when he was at himself he was not profane, but when ho was not himself he was noisy and untidy and — well that is about all.” Witness, after finishing with his patients, saw testator at his house in bed. He seemed better, and said he felt a whole lot better. “I looked around and on a dresser * * * I noticed a bottle marked ‘morphia,’ a bottle of quarter grain tablets and a hypodermic syringe. I says, ‘Doctor, did you use any of this medicine, and he says, ‘Yes, I used some of that medicine,’ and he says, ‘I will have to have another one before night.’ Well, then, it was probably some time after nine o’clock.” The last time witness saw him was a few days before the sale.

He became an old man in the course of a few years. Asked in what way testator became an old man, witness said that it was gradual; that aside from that spell, when he had that convulsion, witness personally knew nothing about any other attacks except some few attacks of indigestion; that he complained of his abdomen a great deal, and on several occasions he had had colds that settled down in his chest, and witness prescribed for him in that way, but aside from that witness didn’t attend him. Witness further related a conversation with him the night before Dr. Sehindel married testator’s sister. Witness stopped in testator’s office and he said, “Hello, Boy,” and witness responded, “Hello, Pop.” He said, “My best friend is going to marry my sister tomorrow.” “By the way,” he said, “I am going to' re-unite— re-marry my wife (testator had been obliged to separate from his second wife, a divorced woman, because of some ⁵⁶⁶ irregularity in the divorce she had procured), and we are going to take a trip of the world.

Then I am coming back here and build a wonderful church and parsonage, and a home, and employ a minister and pay him $10,000 a year, and when I have this home of mine built, Mr. Matty Bloom’s house will look like ten cents.” The only time witness ever saw testator with morphia in his possession or near him was the time above spoken of. On another occasion testator was in witness’ office, when a patient came in, who was a morphia addict, and asked witness for some morphia. -Testator said: “For God’s sake give the man some; every time you can help them along under these conditions when they need it, do it.” He said, “I know from experience that it is almost necessary to have it when you are accustomed to using it.” There was a motion