Waters v. Waters

Barton, C. J., delivered the opinion of the Court. This was an action of ejectment by the heirs at law of the late Tilghman Waters, against the devisees in his will. The controversy turned entirely' upon the question of the validity of the will; the plaintiffs contending that the deceased was of unsound mind, not capable of making a valid will, at the time the will was executed, and that the execution of the will was induced by undue influence of fraud and circumvention. Thirteen bills of exceptions were taken by the plaintiffs at the trial; twelve of which were to the rulings of the Circuit Court upon questions of evidence; and the thirteenth, (which is numbered fourteenth in the record,) to the rulings upon the prayers. ⁵³⁷ These will be considered in their order; most of them involve simple and familiar principles and may be briefly disposed of.

First Exception: The question raised by this exception has been rendered immaterial; it appearing from the thirteenth bill of exceptions, that in a subsequent stage of the trial, the plaintiffs had the benefit of fully cross-examining the witness Burdctt; and therefore suffered no injury by the refusal of the Court, to allow the cross-examination to be made at the time when it was first attempted. But as the question is presented by the record and has been argued ; and as it is a question of practice of some interest, we have considered it, and are of opinion that there was no error committed in this respect, by the Circuit Court; but that the course pursued in allowing the subscribing witnesses to the will to be first examined in chief as to the mental capacity of the testator at the time the will was executed, and to confine the cross-examination of such witnesses, at that stage of the cause, within the same limits, was according to the usual practice. The onus was upon the defendants to prove the due execution of the will, and for that purpose it was necessary for them first to call the subscribing witnesses, to testify as to the fact of the execution of the paper, and the mental capacity of the testator at that time; thus making them their witnesses. Leaving to the plaintiffs the benefit of fully cross-examining the witnesses afterwards, touching all matters pertinent to the question of mental capacity.

This privilege was afterwards exercised in this case by the appellants. Second Exception: Zadok Waters, a witness for the plaintiffs, having stated in his testimony “ that Tilghman Waters had not such a knowledge of his property and relations, as to make a proper and intelligent distribution of his property,” thereupon the defendants propounded to the witness the following question: “Now look at this will (handing him the will of Tilghman Waters) and say whether you think the distribution of the property by this will is intelligent and proper?” ⁵³⁸ The plaintiffs objected; the Court overruled the objection and permitted the question to be asked. It was quite admissible to ask the witness, on cross-examination, whether the particular dispositions of the property actually made by the will in question, were in the opinion of the witness, intelligent and proper. Such a question was pertinent, both for the purpose of ascertaining the meaning of the witness’ testimony in chief, and for testing his capacity to form a correct judgment with regard to what would be an intelligent and proper disposition by the testator, of his property.

The will had been produced in evidence, and its contents were properly to be considered by the jury, in connection with the witness’ testimony, in order that they might judge of the weight to be given to the latter. At the same time we are of opinion that the course pursued in the cross-examination of the witness, is not entirely free from objection; and while we do not consider it as furnishing sufficient legal ground for reversing the judgment • yet as a matter of practice, we are unwilling to give it our entire sanction. Instead of putting the will in the hands of the witness, and propounding the question to him in the form proposed, the more regular course was for the counsel to call his attention to the particular dispositions of the property made by the will, and to ask him the question with respect to them severally, instead of leaving the witness to read over, or spell out for himself the whole will, and to construe its provisions, in order to enable him to answer the question. Such a course of examination might greatly delay the progress of the trial, and lead to fruitless discussions between the counsel and the witness with respect to the construction and effect of the provisions of the will; and therefore we think the particular mode of examination here pursued, ought not to be encouraged.

Third Exception: This bill of exceptions raises the question whether the testimony of a deceased witness, given in a former cause between the same parties, can be proved by reading ⁵³⁹ to the jury the notes of such testimony as taken down by one of the plaintiff’s attorneys at the former trial. The Circuit Court refused to permit the notes lo be read as evidence; but “ allowed the attorney, who was sworn as a witness, to refresh his memory by looking at the notes, and then to state what recollection he had of the testimony given by the deceased witness after he had read the notes.” In our opinion there was no error in this ruling, this mode of proving the testimony which had been given by the deceased witness was in accordance with the rules and practice in such cases, and was followed in Bowie vs. O’Neale, 5 H. & J., 226 , and Garrott vs. Johnson, 11 G. & J., 173 . In those cases the testimony of the deceased witness was deposed to by a witness who had been present at the former trial; the question, however, did not arise as to the admissibility of notes of the testimony, as evidence per se. Some diversity has existed in the decisions in England and this country upon the question whether the Judge’s notes can be admitted to prove the testimony which had been given by a witness on a former trial, who has since died; but we have found no case in which the notes of testitimony, taken by an attorney engaged in the trial, have been held to be admissible as evidence per se, and there seems to us to be very grave and serious objections to their being admitted.

It is no part of the counsel’s duty to take down the whole testimony of a witness, and in most cases it would be impracticable for him to do so; generally he does no more than note down those parts of the testimony which appear to him to be material, or most worthy to be noted, or tending to support his own side of the case; and to admit the notes thus taken to be read in evidence, as proof of the testimony which had been given, would be a very unsafe practice; and we do not find it sanctioned by any decided case. It is supposed some authority in support of the appellants’ position is found in the language of Mansfield, C. J., in Mayor of Doncaster vs. Day, 3 Taun., 262. ⁵⁴⁰ In that case application being made for a new trial, the Court directed that the cause should abide the event of the verdict in another of the causes involving the same questions, which was in progress for trial; whereupon the plaintiff’s counsel, apprehending that some of his witnesses, w'ho were very aged; might die moved for a rule that their evidences given on the former occasion might be read at the next trial. Mansfield, C. J., said: “You do not want a rule of Court for that purpose; what a witness, since dead, has sworn upon a trial between the same parties may, without any order of the Court, be given in evidence, either from the Judge’s notes, or from notes that have been taken by any other person, who will swear to their accuracy; or the former evidence may be proved by any person who will swear from his memory to its having been given,’’ and “Heath, J., concurred in refusing the application.’’ The point here decided was that an order of Court was not necessary to enable a party to prove the testimony given by a witness since deceased; it cannot be understood as deciding that the notes of the testimony taken by a Judge or counsel are per se evidence. Such notes are mere memoranda, which may be used to refresh the memory of the witness who took them; but are not of themselves evidence, as was decided by Talfourd, J., in Reg. vs. Child, 5 Cox Cr.

Cases, 203; by Gurney, B., in Reg. vs. Plummer, 8 Jurist., (p. 1,) 922, and in Lightner vs. Wike, 4 S. & R., 203; Miles vs. O’Hara, 4 Binney, 108; U. States vs. Wood, 3 Washington C. C. R., 440. Upon this question we fully concur in the reasoning of C. J. Tilghman, in Lightner vs. Wike, above cited; which we think directly applicable to the present case; both in respect to the general, rule by which the notes of counsel are held inadmissible as evidence per se; and as applied to the notes themselves which were offered in this case; and which we think furnish intrinsic proof in support of the reasoning upon which the rule is based; for they are evidently incomplete statements of the evidence; they contain none of the witnesses’ answers on ⁵⁴¹ cross-examination; although the testimony showed that a cross-examination had taken place. In any view of the question, we think the notes of the counsel were properly excluded as evidence per se. Fourth Exception: The answer of the witness, Zachariah Waters, that Mrs. Waters treated her husband, the deceased Tilghman Waters, “ as a parent would a child,” was properly ruled out as inadmissible testimony to prove the insanity of the deceased; both because it was a mere expression of the witness’ opinion, and because it was in itself ambiguous and conveys no distinct or definite idea of the witness’ meaning, as suggested by the appellees’ counsel, “a parent treats a child kindly and affectionately; and so a wife ought to treat her husband; and such might be the witness’ meaning; and yet the jury might suppose the meaning to be that she treated her husband as a parent treats a child too young to have any discretion and judgment of its own.” Fifth Exception: We concur with the Court below in its ruling as stated in the fifth bill of exceptions.

The conversation testified to by the witness McPherson, it is evident could not furnish any sufficient basis for an opinion in regard to Mr. Waters’ mental capacity. The witness not being one of the subscribing witnesses to the will, nor a medical expert; his opinion with regard to the mental capacity of the testator was not admissible, unless accompanied with a statement of the facts and circumstances upon which it was founded. This rule is well settled in Maryland by a number of decisions, of which we may refer to Brooke vs. Townsend, 7 Gill, 10 ; Dorsey vs Warfield, 7 Md., 65 ; Weems vs. Weems, 19 Md., 334 . It must appear that the witness had an opportunity of forming a rational opinion; for as was said by Washington, J., in Harrison vs. Rowan, 3 Wash.

C. C., 586 , “ the mere opinions of the witnesses are entitled to little or no regard, unless they are supported by good reasons, founded on facts which warrant them in the opinion of the jury. If the reasons are frivolous or inconclusive, the opin ⁵⁴² ions of the witnesses are worth nothing.” This observation of the learned Judge was made with reference to the opinions of the subscribing witnesses to the will, and the weight to be given to them when tested by cross-examination; and is applicable with more force to the question now under consideration, where the opinion of the witness is not competent evidence, unless sufficiently fortified by facts and circumstances. It seems to us that in some instances the rule which governs the admissibility of testimony of this kind has been lost sight of, or too greatly relaxed, and that such evidence has been sometimes received without any sufficient basis. It may be difficult to lay down any precise rule defining the basis on which such testimony ought to rest; but some reasonable limits ought to be assigned; so that the mere naked opinions of the