The Berry Will Case

McSherry, C. J., delivered the opinion of the Court. This case arose out of a caveat filed against the will of the ⁵⁶⁴ late George R. Berry and was tried entirely on the issue involving his mental capacity. ' The tendency to assail last wills upon the ground of mental incapacity and by frivolous and inconclusive evidence, chiefly of a speculative character, whenever the testator has not disposed of his property in a way to suit disappointed and, often, distant and distasteful relations, has grown" to such alarming proportions in late years, that the Courts should • be resolute in adhering to the old and long-settled principles of the law respecting the admissibility of evidence, allowing ho relaxation or refined modifications of them in this class of cases ; if last wills and testaments are to be at all upheld by juries. It is no uncommon thing to see testamentary dispositions questioned, and it sometimes happens that they are successfully questioned, though there never had been a suspicion of the testator’s capacity during his lifetime, nor after his death, until the contents of his will became known and the expectations of collateral kindred were defeated by its provisions. These kindred frequently think they ought to have been the objects of his bounty, and because he thought differently they conclude he. was incapable of intelligently thinking at all.

Because what he did does not comport with what they believe he should have done, they assume he was mentally unsound and forthwith attack his will; though they never doubted his ability to make a will until they discovered that he had made one which ignored or dissatisfied them. It is time that such groundless assaults should cease and it is the plain duty of the Gourts to give them no encouragement or countenance. There are forty exceptions in this voluminous record. Of these sixteen, namely; the nineteenths and including the thirty-fourth, relate to the admissibility oí hypothetical questions propounded to medical experts on the subject of mental capacity ; twenty-one, namely, the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, thirty-fifth, thirty-sixth, thirty-seventh and thirty-eighth, relate to rulings on the admissibility of non-expert testimony on the same subject; ⁵⁶⁵ two, namely, the thirty-ninth and fortieth cover rulings on prayers for instructions to the jury; whilst the first concerns the action of the Court in allowing the third and sixth issues to be dismissed by the plaintiffs after the jury had been sworn.

It will not be practicable to discuss separately at any length these distinct questions. The general principles respectively applicable to the two groups into which all the exceptions pertaining to the admissibility of evidence are divisible, will first be considered and then the relevancy or irrelevancy of each question in the light of those principles, will be briefly pointed out; though in dealing with the prayers and the first exception, a slight divergence from this method will be necessary. George R. Berry made and executed his will on the tenth day of February, eighteen hundred and ninety-nine, and died on March nineteenth, following. ' His estate according to the appraisement, made as required by law, amounted to something over seventy-three thousand dollars. The will contains thirty-six bequests beside a residuary clause.

To his own relations he gave sundry sums aggregating nine thousand, two hundred dollars. To the relations of his deceased wife he gave altogether twenty thousand, five hundred dollars. To friends of his wife and to his own friends he gave nine thousand dollars. To his servants he gave forty-three hundred dollars.

To the Boys’ Home he gave fifteen hundred dollars. To the Home of the Aged, two thousand dollars, and to the Woman’s College the residue of his estate. The contest was commenced after the will had been probated, and the caveators, who are nephews and nieces of the decedent, were made plaintiffs, whilst the Safe Deposit and Trust Company of Baltimore, named in the will as executor, was made the defendant. Six issues were framed and transmitted by the Orphans’ Court to the Superior Court of Baltimore City for trial.

Of these the first has relation to mental capacity; the second, to knowledge of the contents of the will; the third, to its execution ; the fourth, to undue influence; the fifth, to fraud in its procurement, and the sixth is, as to whether the will is his last will. ⁵⁶⁶ George R. Berry was seventy-eight years and four months of age when he died. The immediate cause of his death was pycemia; the remote cause was atony of the bladder. He was taken sick on February the twenty-third. Atony of the bladder was followed by catarrh of the bladder, which extending up into the kidneys caused nephritis.

The semi-comatose condition which resulted from the pyamic poison did not supervene until March the seventeenth, or two days before his death. He had been an active, energetic and successful business man. For many years he had been engaged quite extensively in manufacturing bricks, and by his industry and capacity had accumulated the property of which. he was possessed at the time of his decease. He had held positions of trust and responsibility, both public and private.

He had been, we are told, a member of the General Assembly and of the City Council and a director of the Baltimore and Ohio. Railroad Company, of the Maryland Penitentiary and of the Firemen’s Insurance Company, besides having served on the grand jury probably more frequently than any other individual in Baltimore. There is no pretence that he was not perfectly competent to transact business or to make a valid deed or contract up to the date of the death of his second wife. Physically, he seems to have been a hale and vigorous man.

But it is alleged a change came over him upon the death of his wife in November, .eighteen hundred and ninety-seven ; and it is from this event that it is asserted his mental faculties began to fail. There is no doubt this calamity greatly depressed him ; but if the question were before us to be determined on the .evidence in the record, we feel bound to say that we see nothing in all that has been testified to, to indicate that this great sorrow or any other causé seriously impaired his intellect or deprived him of the capacity to make a valid will. He had been devotedly attached to his wife and seems to have been on more intimate terms of friendship with her relations than with his own. The will in contest was not the first he had executed.

During the life of his wife he had signed a will wherein many of the legatees named in the caveated will were provided for, and wherein the Woman’s ⁵⁶⁷ College was also made residuary legatee. After the death of his wife he executed other wills; and the record shows in all these instances that he acted with particularity, circumspection and intelligence. Whilst it is not for this Court to pass on the question of his mental capacity at the date of the execution of the contested will, because that is exclusively the province of the jury, we cannot, in disposing of the exceptions, close our eyes to the circumstances which overwhelmingly demonstrate that he had an intelligent appreciation and understanding of the thing he was doing when he made his will. Nor can we overlook the fact that in opposition to this, reliance is placed chiefly on vague theories and speculative opinions to impeach his sanity.

If there ever was a will made with deliberation and after careful preparation, the evidence, if worthy of credence at all, shows that the will of February the tenth, was so made. The will was prepared by Mr. John W. Marshall, Second Vice-President of the Safe Deposit and Trust Company, and was written from data furnished by Mr. Berry some days previously, and those data included a former will. The memoranda given to Mr. Marshall were fully explained by Mr. Berry. Upon the margin of the old will he had pencilled the alterations he wished to have made and he stated his reasons for making those changes.

After the will had been written it was sent to Mr. Berry on February the eighth, and two days later he went with it to the office of the Safe Deposit and Trust Company where he formally executed it. He then placed it in his box in the vault of the company where it was found after his death. On the day he signed the will and after he had signed it he went to the Mercantile Trust Company’s office and there transacted some business in relation to stock which he held in the Baltimore City Passenger Railway, and subscribed for twenty-two thousand dollars of the first consolidated mortgage bonds of the United Railways and Electric Company of Baltimore. From there he went to the Continental Bank and upon his return home he made concerning the railway stock transaction an entry upon a sheet of paper which was found between the leaves of his ledger.

Two of the subscribing witnesses to the ⁵⁶⁸ will testified most emphatically that he was at the time he signed it thoroughly capable of making a valid deed or contract. We have failed to find the testimony of the other subscribing witness in the transcript. This is the man whose mental capacity has been challenged; and these are the circumstances under which the assailed will was executed. Now, by what kind of evidence is this assault supported ?

This brings us to the several exceptions. After a number of non-expert witnesses had narrated incidents in the life of Mr. Berry, a long and complicated hypothetical question covering thirteen pages of the printed record was propounded to certain medical experts ; and then the same question was broken up into subdivisions and these subdivisions were also put to the same witnesses. The defendant objected to the admissibility of the question and the answer, and also to the admissibility of each subdivision of it; but the Superior Court overruled those objections and thereupon the exceptions numbered from nineteen to' thirty-four both inclusive were reserved. Those exceptions though not first in order of time, for convenience, will be first considered.

Observation and experience teach that there is danger of reaching inaccurate conclusions as to a testator’s mental capacity if much reliance is placed on expert testimony founded exclusively on mere hypotheses. The expert not having seen the individual about whose sanity he speaks must rely solely on hypothetical statements of facts assumed to have been deposed to by other witnesses, which facts may have been colored by the persons who narrated them or may be erroneously interpreted in their presentation to the expert, whilst the expert himself may be mistaken in the deductions he draws even when the facts have been accurately rehearsed. Added to these sources of uncertainty there is, and probably it is quite natural that there should be, more or less unconscious bias towards the side upon which the expert is employed ; and as a consequence it is no unusual thing to see equally intelligent and equally honest experts arriving at diametrically opposite conclusions from precisely the same hypotheses. This anom ⁵⁶⁹ aly is not confined to alienists but exists amongst experts on handwriting and on other subjects as well.

It is for all these reasons, 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 as 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. Now, as the opinion sought from the expert must have relation to the subject-matter being inquired into, it is obvious that it must be based on the facts proved, or tending to prove which there has been some evidence offered. It cannot be founded on the mere naked conjectures, conclusions or inferences of witnesses because those conjectures, conclusions or inferences might not represent the real conditions which existed, and thus, there might be substituted by the expert for a deduction which he could have properly drawn from the facts as they really were, precisely an opposite conclusion at variance with the facts and utterly false, because deduced from erroneous premises. This Court has said in Williams v. The State, 64 Md. 394 : “Now, while an expert may give his opinion upon facts assumed to have been established, it would be against every rule and principle of evidence, to allow him to state his opinion upon the conclusions and inferences of other witnesses.” If this be so, then much more is it certain that it would be improper to ask an opinion on a conjecture or conclusion or inference, not of a witness, but of the counsel who propounds the interrogatory.

It is because the very object of allowing an hypothetical question to be asked is to get the expert’s opinion on the actual facts as they have been proved, and not upon some different state of circumstances which bear no relation to the real situation, that the “question to an expert witness testifying as to a person’s mental condition about which he has no personal knowledge, should contain such assumptions of facts, and such only, as counsel may fairly claim that the evidence in the case tends to justify, and * * * while such a question may not be improper because it in- ⁵⁷⁰ eluded only a part of the facts in evidence, it would be so if, by reason of omission, it manifestly failed to present facts which it did include in their just and true relation, and caused them to appear in one that was untrue and unjust.” Barber's Appeal, 63 Conn. 393 ; s. c., 22 L. R. A. 90. It is perfectly self evident that a question which assumes as one of its postulates the very thing which it is propounded to prove, is essentially inadmissible. The hypothetical question set out in the nineteenth exception and covering thirteen printed pages and which was answered in the twentieth exception, contains twenty-one distinct incidents, ten of which detail statements made by Mr. Berry on various subjects, and the residue relate to acts done by him, or to omissions on his part to do other acts. At the close of each of the ten paragraphs having reference to his statements, the expert witness was asked to “assume that the statements so made were erroneous and were so made because of a misconception on the part of the alleged testator.” At the close of some of the other incidents the expert was asked to assume that what was described Was “because of his (Mr. ’Kerry’s) mental conditionwhilst in others the expert was asked to assume that “nothing occurred thereafter to affect or change his relations with” certain individuals therein alluded to.

Without setting out these incidents further than may be done later on by way of illustration, it is perfectly apparent, as will be seen in a moment, that the objection to the question should have been sustained for at least three conclusive reasons. First. What is meant by “misconceptions” as used ten times in the question ? It may mean a delusion or it may mean a mistake which implies the existence of a rational and capable intellect in the person making the mistake and therefore excludes a delusion.

That it may have the former meaning is clear from the testimony of Dr. Hill, who when asked to take into consideration the assumption “that the statements were erroneous and were made because of a misconception on the part of the alleged testator,” replied: “The only ⁵⁷¹ inference we can draw from it is that they are delusions ; if there was no foundation for it, it was a delusion. ” Question: “If it was erroneous it was a delusion ?” Answer: “Yes.” Question: “What sort of a delusion would you say that was, doctor, sane or insane?” Answer : “All delusions are msane." A misconception is thus distinctly and unqualifiedly treated as synonymous with a delusion. Giving to the word that meaning, the question is made to assume as proved the very thing which it was propounded to prove. If a delusion is evidence of a mental disease, then the assumption that an individual had delusions is necessarily an assumption that he had a mental disease, whilst the fact to be proved, and therefore not to be assumed, is that he had a mental disease. A question which assumes as proved the precise and identical thing to be proved is essentially vicious.

An hypothetical question may assume as true facts which evidence has been offered to prove; but it obviously cannot assume as true, either the ultimate thing to be proved or things which there has been no evidence whatever adduced to establish. As the ultimate thing to be proved was that Mr. Berry had no capacity—mental capacity—to make a valid will, the assumption that he had had delusions was an assumption, pure and simple, that he did not have the mental capacity to make a valid will, because the existence of delusions is evidence of the absence of mental capacity. Substituting for the word misconceptions the meaning ascribed to it by Dr. Hill the question would read: Assuming that Mr. Berry had delusions, had he delusions and was he, therefore, mentally competent to make a will ? Such a question would be radically wrong.

By assuming the existence of delusions, the question assumed what had not been proved as is manifest from the ruling by the learned Judge below on the plaintiffs’ twelfth, thirteenth, fourteenth, fifteenth and fifteen and a half prayers, each of which was constructed on the theory that Mr. Berry had had insane delusions but which were all objected to specially, on the ground that there was no evidence in the case “showing that George R. Berry labored under any in ⁵⁷² sane delusion,” and which were thereupon rejected by the Court. Thus while the hypothetical question assumed that 'Mr. Berry had had delusions, the Court by rejecting the prayers above indicated, practically ruled that there was no .evidence to show that there ever had been such delusions. But this is not all. Translate the word misconception to mean mistake ; is it permissible for an alienist to draw the conclusion that a man is incapable of making a valid will if it be assumed that sometime in his life he has been mistaken as to the existence of a fact or a number of facts ?

Assuming that the testator has made a mistake then that mistake is attributed by the witness to mental incapacity. Tested by such a process no human being would be found capable of making a will. What has been thus far said is sufficient to show that the rulings set o.ut in the twenty-third, twenty-fourth, twenty-fifth, twenty-seventh, thirty-first and thirty-second bills of exceptions were wrong and no further discussion of them will be necessary, because in each of those exceptions portions of the original hypothetical question were propounded and when propounded were coupled with the same assumption as to misconceptions on the part of Mr. Berry. Secondly.

Still dealing with the nineteenth exception—the question was faulty in giving a wrong coloring to facts, and this wrong coloring was given by isolating a particular fact and withholding other facts which directly bore upon and explained the one so segregated and thus so made unduly prominent. A single illustration will make this clear. One paragraph of the question reads as follows : “The attack in his last illness took place while he was sitting in his library ; he did’nt say much, but mumbled, and looked up to. the ceiling saying ‘yes, yes, um, um; yes, yes; um, um ;’ and his servant being alarmed kept close so that she could reach him if he attempted to rise, and send for a doctor. At this time the alleged testator said : T want to go to my chair’.

And the servant said to him, ‘You are in your chair;’ and he replied to her, ‘no, I am not.’ And she said to him, ‘do you want to go on the lounge?’ And he said ‘yes.’ And then she ⁵⁷³ helped him to the lounge, and when he got on the lounge he said, ‘Take me to my lounge.’ She said, ‘You are there now.’ This was the very beginning of his sickness. Assume that the conduct of the alleged testator as just described was caused by the attack, and that he was not aware of the statement made in reference to his lounge and chair as herein mentioned.” . To this part of the hypothetical question the medical expert replied as follows : “From the description of that attack in your question I would suppose that was an attack of embolism of the brain.” Another expert made this answer: “It indicates to my mind that degeneration, the physical and mental degeneration of the individual, caused the formation of an embolism or thrombosis in the brain, and that produced an attack of delirium ; and his saying, yes, yes, yes, and um, um, um,’ is a characteristic of a man with brain trouble.” Now, it had been proved by the plaintiffs prior to the hypothetical question being propounded, that it was a habit of long standing with Mr. Berry to say ‘yes, yes, um, um.’ A nephew in narrating an interview in eighteen hundred and ninety-one, when it is not pretended that Mr. Berry had embolism, thrombosis or delirium, testified that he had stated certain things to his uncle and when he, the witness, left, all Mr. Berry “said, if anything, was, umph, umph; umph, umph. * * * * He said umph, umph; umph, umph, as I have heard my uncle say hundreds of times, umph, umph, umph, umph, just as if he was sitting in his office talking business.” This practice of his to say umph, umph, was entirely excluded from the question: Can it be conceived that these learned experts would have attributed to embolism these utterances if they had been told in the question put to them that Mr. Berry habitually used them ? It is folly to suppose they would, and it could have been no less absurd if they had.

And yet a conclusion attributing to him a serious mental condition was reached because a material and most important fact revealing the habit of many years was suppressed. But beyond all this, the assumption of facts contained in this branch of the question was founded ⁵⁷⁴ wholly upon hearsay testimony and therefore should not have been incorporated in the question at all. As showing the utter unreliability of the conclusions drawn from this inaccurate hearsay hypothesis, let us glance for a moment at the actual facts about which there can be no controversy. When the region of speculation is abandoned and bald realities are considered, the situation is completely changed.

The testimony of the physician who attended Mr. Berry for some years as well as in his last illness, is of more value on this subject than all the conjectures of all the experts examined in the cause.. Dr. Morgan described Mr. Berry’s condition and the attack to which allusion is made in the question. t This testimony was delivered after the hypothetical question had been put and answered. He said he received a hurry call, went to Mr. Berry’s house and found him in his library. “He was suffering from retention of urine, caused by atony of the bladder, and was suffering intensely. I relieved his suffering by withdrawing the water. * * * * * I-withdrew the water and in half an hour he was himself again.” Thus the supposed embolism turned out to be a distended bladder, and the suggested thrombosis vanished on the use of a catheter '.

Thirdly. The hypothetical question based some of the incidents it narrated on an assumed condition of fact not proved ; or else it arbitrarily attributed to the condition of his mind other events that it recited. Thus.in part of the question, and this is repeated in the twenty-sixth and twenty-eighth exceptions, allusion is made to interviews in which he is represented as having said that he would make provision for his relatives, and in which he is further represented as having criticised Samuel Ready and Johns Hopkins for the manner in which they had disposed of their estates; and thereupon the expert witnesses were asked to assume “that the alleged testator was a truthful man and intended at the time he made said statements to carry out the same, and that nothing occurred thereafter to affect or change his relations with said persons, and that he did not provide for them in accordance with his said ⁵⁷⁵ statements * * * * what indication does that furnish, or what is to be learned from that?” And the answer was that this indicated a serious impairment of memory. There was not a particle of evidence adduced to show that nothing had occurred to affect or change his relations towards those persons, but there was ample evidence that he had good reason for changing his feelings towards some of them, and thus the very pith of the hypothesis was assumed as an existing fact, not only in the absence of testimony to support it, but in the teeth of testimony contradicting it.

But further than this, it may be granted that nothing in fact had occurred to change his relations towards his relatives and yet it would not thence follow that the testator’s memory had failed or that his intellect had become impaired. There is an obvious fallacy lurking in the opposite conclusion. These relatives were all collateral kindred, no nearer than nephews and nieces. A man may change his intentions with respect to the disposition of his property without changing his relations or feelings towards the collateral kindred to whom he previously proposed to give some of that property.

His relations towards those persons may remain precisely as they had formerly been, and yet other considerations may induce him to make an entirely different disposition of his property. Unless it be assumed as a postulate true without exception, that a change of intention as to testamentary disposals of property when there has been no change in one’s relations towards another is essentially indicative of a loss of memory and consequently of impaired mental power, and of itself .excludes every other explanation, there can be no rational inference drawn from such a circumstance that there was lack of testamentary capacity. If a medical expert is to be permitted to testify before a jury that a testator’s mind had seriously degenerated because, though there was no change in his relations towards his collateral kindred, he yet made a different disposition of his property from the one he had formerly stated he intended to make, there would be little chance of any will being sustained ; and the right to make one had as well be unconditionally denied by ⁵⁷⁶ legislative enactment. The question wholly ignored the evidence which had been adduced before the question was propounded and which tended to prove that there had been ample cause for a change in the testator’s feelings and relations towards some of his relatives ; and by thus ignoring this evidence submitted a false hypothesis.

This branch of the hypothetical question was palpably wrong and for the same reasons so were the subdivisions of it objected to in the twenty-sixth and twenty-eighth exceptions. By another portion of the hypothetical question an alleged failure of the testator to comprehend a conversation was assumed to be due to “his condition of. mindand this is repeated in the twenty-ninth exception. It is obvious that this assumes as true the very thing to be proved. Again: It might have been that this supposed failure to comprehend the conversation was due to other circumstances than the “condition of his mind,” or if due to the condition of his mind that the condition of his mind was not a condition of incapacity but of distress.

Granting that it was due to the condition of his mind, the conclusion that that condition was one of incapacity was utterly unwarranted. It is altogether probable that his supposed failure to comprehend the conversation was the consequence of his visitor’s lack of intelligence. If the visitor was himself stupid and incapable of expressing himself clearly then that lack of intelligence should not be the measure of Mr. Berry’s mental grasp. The thirtieth exception rather indicates that whatever failure there was on the part of Mr. Berry to comprehend the conversation was attributable to the visitor himself.

This is the incident. The day after the death of Mr. Berry’s wife an officer of the lodge of Odd Fellows to which Mr. Berry belonged called on Mr. Berry to pay him the sum of twenty dollars—the amount he was entitled to-receive from the lodge as benefits. The lodge officer stated the object of his visit, and as the twenty-ninth exception sets-it out “a lady in the room explained to the alleged testator the purpose for which the money was paid after the lodge.officer tried ineffectually to explain this purpose. ” If he un ⁵⁷⁷ derstood the lady and did not understand the lodge officer it is a fair inference, not that there was mental deficiency on the part of Mr. Berry, but that the lodge officer was unable to intelligently communicate the object of his visit. This assumption that Mr. Berry failed to understand the reason why the money was paid, and failed to understand it because of his mental condition, made the hypothetical question bad, and also affects the interrogatory put in the twenty-ninth exception, and the one propounded in the thirtieth which is dependent on the twenty-ninth.

For the reasons we have assigned the hypothetical question set out in the nineteenth exception should not have been allowed to be asked. The objection to it ought to have been sustained. What has been said up to this point disposes of the nineteenth, twentieth, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth, thirtieth, thirty-first and thirty-second bills of exception and shows that the questions objected to in each of them and the answers given in reply should have been excluded. The remaining exceptions which relate to expert testimony are the twenty-first, twenty-second, thirty-third and thirty-fourth? and these will now be considered.

The twenty-first exception was taken to the ruling of the Court in allowing an hypothetical question founded on the testimony of Dr. Harris to be propounded to an expert. The foundation for the question is this: In an interview of twenty or thirty minutes’ duration between the testator and Dr.. Harris, who is not an expert, the former is saidto have jumped, from one subject to another without any continued conversation on any one of those subjects. The expert’s answer-shows the danger of admitting such evidence as the expert, gave, for it completely shifted the ground on which the question was based.

This is the answer: “The fact of his inability to confine his mind to one continuous subject was evidence of mental impairment, a very common symptom in old age.” The hypothesis of the question did not include an inability “to confine his mind to one continuous subject”—possibly the ⁵⁷⁸ witness meant one subject continuously—but was limited to an assumption that Mr. Berry did not confine himself to one subject. Thus the fact that he passed abruptly from .one subject to another was assumed to imply an inability to adhere to one subject; and this assumption in the answer plainly indicates that the question as put was not sufficiently explicit to warrant the formation of an opinion at all. It was inadmissible, and should have been ruled out. There was error in the ruling set forth in the twenty-second exception.

This is the question objected to : “ Doctor, taking into consideration everything that has been stated to you about Mr. Berry’s physical condition and sickness, and also taking into consideration the statements that have been made about his walking, or failure to control his walk and locomotion, assuming those statements to .be true, what indication, if any, is there to be gathered from such condition of locomotion?” Now, amongst the things which had been stated to the witness as facts assumed to have been proved about Mr. Berry’s physical condition was the following: “ Assume the physical condition of the alleged testator as described, was caused by old age and disease and the death of his wife.” It cannot be said that the mer& physical condition of Mr. Berry, produced by age and by disease and by grief, is, without more, any evidence of Lis mental condition, unless it be conceded to be universally true that a physical condition, pure and simple, caused in the way designated, invariably and always indicates mental degeneration. But to assert such a proposition is to assert, as everyone knows, a sheer absurdity. The remaining part of the •question as to Mr. Berry’s alleged inability to control his locomotion was without sufficient facts to support it, and therefore furnished no ground upon which to build an opinion. And this was recognized by the expert himself when he answered that Mr. Berry’s “locomotion has not been sufficiently carefully described to draw a very distinct inference ; ” although after making this statement he proceeded to speculate as to what might have produced a disturbance of his gait or walk.

The objection to the question ought to have been sustained, ⁵⁷⁹ because the question included a false assumption, as just pointed out, and because it sought an opinion upon what was obviously, and by the witness was conceded to be, an insufficient description to support an inference. The thirty-third and thirty-fourth exceptions were reserved to rulings admitting questions founded on the whole hypothetical question, and for that reason the objections to them ought to have been sustained. If the hypothetical question was wrong, then any other question which assumed and relied on the errors contained in the former was equally defective. The hypothetical question is entirely different from the one propounded in Frush v. Green, 86 Md. 494 .

Upon turning to the record in that case it will be found that the method followed was to ask the expert whether he had heard all the testimony which had been delivered, and upon his replying in the affirmative, he was then asked, assuming the facts testified to, to be all true, to give his opinion as to the party’s mental capacity. This was the course adopted in Negro Jerry v. Townshend, 9 Md. 145 , though not with the entire approval of the Court. We now come to the twenty-one exceptions embodying questions propounded to non-expert witnesses. The law applicable to such testimony will be briefly stated and then the exceptions will be considered as concisely as possible.

Whilst, as said by this Court, in Waters v. Waters, 35 Md. 542 , “it may be difficult to lay down any precise rules defining the basis on which such testimony ought to rest,” still there are some definite principles which, though they have “ in some instances * * * * * been lost sight of or greatly relaxed,” are nevertheless applicable to this class of testimony and ought not to be overlooked or further departed from when considering its admissibility. It has been distinctly ruled in this State and is generally agreed that mere