Wagner v. Klein

Constable, J., delivered the opinion of the Court. The questions to be determined in this appeal have been raised upon exceptions to the rulings of the Court below, upon the trial of issues framed by the Orphans’ Court of ²³¹ Baltimore City, and sent to a law Court for trial, upon the caveat to the will of Josephine Wagner, Sr. There were five issues, and they involved these questions: (1) Was the testatrix of sound and disposing mind, memory and understanding; (2) was the alleged will executed in compliance with the provisions of law; (3) was the testatrix subjected to undue influence; (4) was the alleged will procured by fraud, and (5) did the testatrix know or was she informed of the contents and effect of the alleged will at the time of execution. The will in controversy was executed on the 13 th day of January, 1913, during the last illness of the testatrix; she dying on the 24th day of January, 1913. The testatrix was at that time seventy-one years of age.

Her next of kin were two daughters and a grand-daughter, a daughter of a deceased son. During the last few years of her life, she had made her home alternately with her daughters, with the exception of a brief period when she lived alone. The will provided for specific money legacies to her great-grandchildren and grandchildren, including the caveator to the will, who is the daughter of the deceased son, and left the residue of the estate to the two daughters. During the trial, the caveator reserved eighteen exceptions to the ruling of the Court on questions of evidence.

All of them, except the fifth, tenth, eleventh, fifteenth, sixteenth, seventeenth and eighteenth, have been abandoned. Exception was also taken to the action of the Court in refusing a number of prayers of the caveator’s, and in granting certain of those of the caveatees, but no contention is made over this action other than that from the granting of the seventh of the caveatees. The Court instructed the jury to find, as a matter of law, in favor of the caveatees on the first, second, fourth and fifth issues, thus leaving the issue of undue influence the only one to be determined by the jury. The finding of the jury was in favor of the caveatees, and this appeal is the result. ²³² The fifth exception arose in this way: The widow of the deceased son of the testatrix, and the mother of the caveator, had testified that during the last several years of the life of her husband, he had suffered from an incurable disease, which rendered him incapable of working, and resulted in his death in December, 1912.

That, because of his illness, she and her daughter worked at sewing for the support of him and themselves and to enable them to purchase medicines and pay for medical advice for him. She testified that the testatrix knew she paid all the doctor’s bills for her husband and that the testatrix had said to her: “It is splendid in you to be able to do it, and every dollar that you have paid out will come back to you.” This question, which is the basis of the exception, was then asked the witness: “In round figures, as accurately as may be, can you tell the gentlemen of the jury, how much money you actually did pay out of your earnings for the medical advice and attendance of your late husband, during the last four or five years of his life, to the knowledge of your grandmother ?” It would appear from the use of the word “grandmother” that this question was asked of the granddaughter, but the testatrix throughout the whole testimony seems to have been called grandmother by everyone. Assuming the declarations of the testatrix, as to paying money that the daughter-in-law had paid for necessaries for her own husband, were admissible under all or any of the issues to be determined, it is difficult to see a reason for going into such a detail as the amount actually paid. All the force that could have been gotten from such a transaction was furnished by the declarations; and to have shown the amount she was expected to repay would have added nothing.

It is not even contended that she meant by her declarations to actually repay the amount expended, but rather that the son’s wife and daughter would share in her estate to the extent of the son’s share. AYe think this was irrelevant and immaterial to the issues, and, therefore, a proper ruling. ²³³ The tenth and eleventh exceptions can be treated together, for one is to the overruling of an objection to a question and the other is the refusal of the Court to strike out the answer to the same question. Dr. Wirt A. Duvall, a physician of twenty-six years’ experience, was the attending physician during the last illness of the testatrix. He had attended her once or twice before.

He was called to attend her on the 11th day of January, 1913, and visited her from one to three times daily until the time of her death. He had the usual conversations passing between a patient and her physician, and at times the patient became extremely confidential in her disclosures to him. The doctor, while a witness, was .asked the following question: “During these visits, during this illness, beginning on the 11th of January, 1913, you say you saw Mrs. Wagner daily and sometimes mox’e than once daily; what did you obsexwe as to her mental condition during that time ?” A. “To put it in one word, I might say, normally, she was a woman of exceedingly good mind, I think.” It is not claimed by Dr. Duvall, nor for him by the caveatees, that he is in this case as an expert, as to which •class of witnesses the decisions are uniform that they can ■express an opinion as to the mental capacity of a testator, without first stating the facts and circumstances upon which they base that conclusion; but it is conceded that he falls within the category of non-expert witnesses, who must first ■give the facts.and circumstances upon which their opinion is based. Waters v. Waters, 35 Md. 531 ; Townshend v. Townshend, 7 G. 10; Dorsey