Barbour v. Moore

10 App. D.C. 30, 1897 U.S. App. LEXIS 3156

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 4, 1897
• Docket: No. 578
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court :

1. This is the second appeal that has been prosecuted by the defendant in this action of ejectment brought against her to recover an undivided one-half of certain valuable lands in the District of Columbia. See Barbour v. Moore, 4 App. D. C. 535, where the history of the case is given.

The entire controversy turns upon the validity of the will of David Moore, under which appellant claims, that has been attacked for the want of capacity of the testator, and also as the product of undue influence exerted upon him.

On the first appeal the judgment was reversed for certain errors in the charge; but on the points raised in respect of the sufficiency of the evidence to require the submission of the issues to the jury, the decision was adverse to the appellant.

The sufficiency of the evidence on the separate issue of mental capacity was passed over without comment; but in respect of the issue of undue influence, upon which the stress of the argument had been laid, the Chief Justice, who delivered the opinion of the court, said : “We think the court below committed no error in refusing to instruct the jury that there was no evidence tending to show that the will had been obtained by means of undue influence. There were many facts and circumstances in proof to'be considered by the jury as reflecting upon this question. The court would not have been justified in withdrawing those facts and circumstances from the consideration of the jury.” 4 App. D. C. 553.

2. As the chief point of contention on this appeal, the argument has been mainly devoted to the tenth, eleventh. and twelfth assignments of error that are founded on the refusal of certain special instructions, the purpose of which, expressed in varying forms, was to take the case from the jury and compel a verdict for the defendant. In the language of counsel for appellant, on their brief: “The main point which counsel desire to present to the court at the outset is, that it was the duty of the court below to instruct the jury that upon the whole evidence their verdict should be for the defendant.”

This raises two distinct questions: 1. Whether the evidence on behalf of the plaintiffs, considered by itself, was sufficient in law to justify its submission to the jury? 2. Whether the weight of all the evidence is so overwhelmingly in favor of the validity of the will that it lies within the power, and becomes the duty, of this court to reverse the judgment and set aside the verdict for that reason only?

3. The first of these questions ought to be regarded as settled, in so far as this court is concerned, unless there is some substantial difference between the proofs offered on the respective trials. Gas Light Co. v. Eckloff, 7 App. D. C. 372, 375.

A great part of the evidence introduced by the plaintiffs, in support of their attack upon the will, relates to certain habits and peculiar conduct of the testator during the later years of his long life, both before and after the execution of the said will. Nothing less than some necessity would justify the detail of these, and without them any statement of the evidence would be unsatisfactory and misleading. Consequently, seeing no useful purpose that must be sub-served by a review of that evidence, we will not undertake the task.

The peculiar nature of the issues tendered necessitated a wider range of evidence than is usual in ordinary trials. Olmstead v. Webb, 5 App. D. C. 38, 49.

Proof of incapacity to make a will is not only largely dependent upon circumstantial evidence, but also upon the opinions of skilled and unskilled witnesses, familiar with the testator, whose intelligence, perceptions and opportunities for observation are often widely different.

Undue influence, too, is nearly always a matter of inference from facts and circumstances disclosed by the evidence of the conditions and surroundings of the parties, and cannot, in its legal sense, be defined and applied in one case so as to present an accurate measure for the determination of another. Conley v. Nailor, 118 U. S. 127, 133.

These facts and circumstances, and the inferences to be deduced therefrom, vary so with the character and publicity of the instrument, the motives operating upon the several parties, the surrounding circumstances of time, place and opportunity, and especially with. the mental conditions of the persons influenced, that the conclusion in one case can rarely be taken as a safe guide for the decision of another. Each case must necessarily depend upon its own special and peculiar circumstances. Circumstances sufficient to show undue influence to the satisfaction of a discriminating mind in application to one transaction, may, to the same mind, appear trivial and inconsequential when applied to another. Sufficient mental capacity to make a valid will may be found to exist in a given case, and yet the mind may be enfeebled to such an extent that circumstances of no weight in the case of a strong intellect and will might nevertheless become of great importance in determining the question of its freedom of action. When, therefore, the two issues of mental capacity and undue influence are combined and interlocked, the difficulty of finding a correct standard of comparison and decision is greatly increased.

The difficulty is in a measure illustrated by one of the points made on the argument for the appellant. It has been contended that the failure of the testator to amend or cancel the will during the seven years that elapsed between its execution and his death, creates a strong presumption that the will was freely made, which it was specially incumbent upon the plaintiffs to overcome. Authorities are cited in support of the proposition, that a will which remained for two years subject to change or cancellation at the maker’s pleasure, could not be set aside upon proof of declarations of the testator subsequently made. Grant the application of the doctrine to the facts of the particular cases, and yet the lapse of seven years may not be of any special significance in the case at bar. If the doctrine is applicable at all to the special circumstances of this case it is shorn by them of its strength. Aside from the feeble memory and other conditions of mental unsoundness of the testator, as testified to by some witnesses for the plaintiffs, it appears with reasonable certainty that the will did not remain in his possession, but passed into that of the defendant’s husband. There is nothing to show that the testator’s attention was afterwards called to the making of this or any other will, or that he remembered having made one at all. How, then, can it be reasonably held that the mere existence of this will for seven years, uncancelled, ought to add any substantial weight to the presumption that the law itself attaches to all instruments, whose execution shall have been formally proved?

In this connection, also, it may be well to advert to another and similar point, that has been urged with much force and earnestness, in respect of plaintiffs’ long delay in making their attack upon this will. The will was executed July 29, 1876; the testator died October 23, 1883; James Moore, son of the testator and father of plaintiffs, died July 11, 1886; and the first action was begun in April, 1890. Again, we are of the opinion that the jury might, without impropriety, have attached no weight to this great lapse of time between the execution of the will and the beginning of the action. From no point of view could the lapse of time between the execution of the will and the death of the testator cut any figure, for reasons that are obvious. Nor is this a suit in equity to set aside an established and effective instrument in which laches in its institution is sometimes a bar to all relief; but an action at law in which lapse of time, short of the period of limitations, is of no avail as a defence. Wehrman v. Conklin, 155 U. S. 314, 326. Granting, however, that lapse of time in claiming against a will might often be a reasonable and weighty circumstance in the consideration of the jury in a particular case, it can only be so in the absence of explanation. In this case they might have found an explanation — at least, it was within their province also to find one if they could — in the evidence which showed that James Moore was, during the whole time, a hopeless inebriate, and that his children, of whom one only was a male, were young, very poor, and dependent upon their own exertions for means of support and education.

Without taking up in detail, for the reasons heretofore given, the very careful analysis of the evidence that has been made by the able counsel for the appellant, or considering separately the probative effect of each distinct head thereof, we think it sufficient to say that we cannot justify ourselves in holding that their combined effect might not have fairly led the jury to the conclusion that the will was not the act of a legally sound and uninfluenced mind. Allore v. Jewell, 94 U. S. 506, 508.

The duty of the trial judge, in respect of the submission of the evidence to the determination of the jury, has been many times discussed by this court. And the rule deduced from the decisions of the Supreme Court of the United States was attempted to be stated in the recent case of Adams v. W. & G. R. Co., 9 App. D. G. 26, in the following words;

“It is the province of the jury to determine the credibility of the witnesses and the weight of the evidence under proper directions in respect to the principles of law applicable thereto, and the court is never justified in directing a verdict except in cases where, conceding the credibility of witnesses and giving full effect to every legitimate inference that may be deduced from their testimony, it is nevertheless plain that the party has not made out a case sufficient in law to entitle him to a verdict and judgment thereon. Stated in many different ways, this, we think, is substantially the doctrine of the adjudged cases that control in this jurisdiction.”

To the cases cited in that opinion in support of the foregoing may be added Sparf v. Hansen, 156 U. S. 51, 99; T. P. R Co. v. Gentry, 163 U. S. 353, 365.

Assuming, then, the truth of all the facts introduced in evidence by the plaintiffs, without regard to the contradictions that may have been offered by the defendant, as we are bound to do in the consideration of the question, and finding, besides, no substantial difference between the proofs on this and on the first trial, we must hold now, as on the former appeal, that the coui’t did not err in refusing the instructions to find for the defendant because of the insufficiency of the plaintiffs’ evidence.

This conclusion is all the more satisfactory now, because the sufficiency of the testimony has again been approved by the verdict of another jury and the judgment of another justice of the trial court. Courts expressly invested with the power to set aside verdicts because against the weight of the evidence, have always been very slow and careful of its exercise where there has .been a second verdict.

4. This brings us to the second of the questions propounded above.

Conceding, for the sake of the argument, that the evidence offered by the defendant not only contradicts that of the plaintiffs in material particulars, but is also cogent on all points of contradiction, we, nevertheless, do not consider ourselves at liberty to bring their respective weights into comparison and to judge between them.

Notwithstanding the possible superiority of a court to a jury for the trial of issues like those presented in this case, and without regard to whether the finding of a court might have been different from the verdict of the j ury, upon which we express no opinion, we must bear in mind that the trial has been in a court of common law, and that the verdict of the jury can only be examined, or reviewed according to the rules thereof.

Whilst in most — if not all — of the States of the Union the appellate courts have the right to review the facts as well as the law in all appeals, as if they wei’e proceedings in equity, that power has been expressly denied to the courts of the United States by the Seventh Amendment to the Constitution, which declares that “ no fact tried by a j ury shall be otherwise examined in any court of the United States than according to the rules of the common law.”

In all trials the jury are the exclusive judges of the credibility of the witnesses and the weight of their testimony, and must be left to the free exercise of their functions. Ætna Life Ins. Co. v. Ward, 140 U. S. 76, 88.

According to the rules of the common law, when a verdict has been returned it may be set aside by the trial judge, notwithstanding the sufficiency of the evidence of the successful party in point of law, if, in his judgment, the verdict was against the manifest weight of the evidence, or was, in other respects, manifestly improper or excessive. Met. R. Co. v. Moore, 121 U. S. 558, 569. And it is not only his right to do this, but his duty also. Woods v. R. & D. R. Co., 1 App. D. C. 165, 169.

In the case of Met. R. Co. v. Moore, supra, the Supreme Court of the United States recognized the right of the General Term of the Supreme Court of the District of Columbia to consider the weight of the evidence on appeal from the special term from an order overruling a motion for new trial; but that right was based on the peculiar organization of that court, through which, though sitting in special and general terms, it is still but one court. Hence, it was said : “ The appeal from the special to the general term is not an .appeal from one court to another, but is simply a step in the progress of the cause during its pendency in the same court.” 121 U. S., p. 573.

Whatever doubt might possibly have been raised by the remark in that case that the practice of the State courts in reviewing vei’dicts is “perhaps forbidden” to the courts of the United States by the Seventh Amendment, has certainly been removed by the unmistakable language of later cases. Wilson v. Everett, 139 U. S. 616, 621; Æna, Life Ins. Co. v. Ward, 140 U. S. 76, 91. In this last case, the court said:

“It may be that if we were to usurp the functions of the jury and determine the weight to be given to the evidence, we might arrive at a different conclusion. But that is not our province on a writ of error. In such a case we are confined to the consideration of exceptions, taken at the trial to the admission or rejection of evidence, and to the charge of the court and its refusal to charge. We have no concern with questions of fact, or the weight to be given to the evidence which was properly admitted.”

The many decisions of the Supreme Court of the United States that support this view, from the beginning, are given in their chronological order on the briefs for the appellees and need not be here cited.

5. The first and second assignments of error come next in the order of the argument.

Mrs. Sarah Moore, the mother of plaintiffs, was permitted to testify, over the objection of the defendant, that shortly before the date of the will she and one of her daughters, then fifteen years old, obtained positions in the Government service with small salaries. It seems to be conceded by the appellant that if plaintiffs’ father had not then been alive, their situation as heirs-at-law and proper objects of the bounty of their grandfather, would have justified the admission of the evidence. Under all the circumstances of this case we think the evidence was admissible.

The deplorable condition of their father would naturally have directed the mind of the grandfather, if sound and unbiased, to the helpless condition of the children and suggested them as proper objects of his bounty in making a will; hence the conditions by which they were surrounded constituted a proper circumstance to be considered by the jury under the limitations expressly imposed by the court in the admission of the evidence. That the sympathies of the jury might have been unduly excited by the contrast between the conditions of the children of James Moore and of his sister, the defendant, is a circumstance that cannot affect the competency of the evidence. Besides, these general conditions appear throughout the whole of the evidence, and could not have been kept from the knowledge of the jury.

There are other grounds, moreover, upon which the competency of this evidence may be upheld.

In the first place, the intemperance of James Moore and the anger and prejudice which his conduct created in the mind of the testator, have been relied on as strong circumstances tending to show, in rebuttal of the charge of undue influence, reasonable grounds for his exclusion from the benefits of the will. It would seem, therefore, that the weight of these circumstances might be strengthened on the one hand or weakened on the other by proof of the conditions surrounding the children of James Moore, and the testator’s knowledge thereof, as well as his relations with them.

In the second place, the conditions and surroundings of plaintiffs and of their father also were pertinent circumstances for the consideration of the jury in explanation of the long delay of attack upon the will.

6. The admission of evidence tending to show that James Moore returned in a sober condition from the testator’s house during his last illness, has been made the foundation of the third assignment of error. This evidence seems to have been offered to rebut certain evidence to the effect that he was at the house of the testator during his last illness, and wholly unable to do anything for him by reason of intoxication. We think the testimony was not irrelevant, but, if it were, the error in its admission would not justify the reversal of the judgment, for no injury could reasonably have resulted from it.

7. The fifth assignment of error might also be passed as immaterial, even if the exception upon which it is founded were well taken. Under the former ruling of this court, the probate of the will in the Orphans’ Court was held to be prima facie evidence of its contents and due execution. Although that doctrine has since been denied by the Supreme Court of the United States in Campbell v. Porter, 162 U. S. 478, the trial was had in accordance with it. In the course of their attack upon this prima facie case the plaintiffs called Eugene Morgan, one of the subscribing witnesses to the will. He recognized his signature and those of the two other witnesses, but had no recollection of the actual signing or of acquaintance with testator. He was then asked if, in connection with said witnesses, he had ever witnessed a will outside of the bank; to which, over the objection of the defendant, he answered that he had not. The will had been prepared by a lawyer, who died before the controversy arose, and one of the circumstances in the case was the place of its execution and . its custody thereafter. In this view of the case we cannot say that the admission of the evidence was erroneous.

8. The next assignment of error relates to the admission of proof, over the objection of defendant, that an indorsement on the envelope containing the will of the words “property of David Moore” was in the handwriting of James L. Barbour. James L. Barbour was the husband of defendant, and by reason of a contingent interest under the terms of the will, was a defendant also. He died after the first trial and before the second.

David Moore died October 23, 1883, and his will was filed in the office of the Register of Wills on the next day. It was, when presented, contained in the envelope with the indorsement aforesaid.

The knowledge of the existence of the will by said Barbour, and the place of its keeping, were circumstances to be considered on the issue of undue influence. Moreover, the same facts were pertinent to be considered in connection with the point made upon the long period of time within which the testator might have amended or revoked his will if it had been extorted from him unwillingly, to which reference has been heretofore made. We find no error in the ruling of the court.

9. Nor do we find any reversible error in the exception that is made the foundation of the sixth assignment.

We think it unnecessary to consume time in the inquiry whether the mode of the valuation of the land in controversy, adopted in the cross-examination of one of the defendant’s witnesses, was admissible by way of cross-examination; orto consider the true measure of value where that is an important issue in the controversy. Whether the land was valued as farm land strictly, or as suburban land, destined sooner or later to be divided into lots and sold by the square foot instead of by the acre, was, we think, a matter of no particular importance in the case. That it had considerable value at the time of testator’s death, was proved by defendant, and whatever its value, it constituted the whole of his estate.

10. The evidence in the case showed that James L. Barbour had collected rents for the testator for a number of years, and had advanced him money from time to time as-needed. Defendant offered an account between him and testator, taken from the books of Barbour & Hamilton, showing collections and advances, commencing in December, 1871, and running down to the date of testator’s decease. Defendant then offered from the books of Barbour & Hamilton accounts current with John Moore and others to show that the said firm had acted as agents and bankers for friends and customers.

Aside from the technical objection to the proof- of book accounts, as such, which we do not pause to consider, we think the court did not err in excluding the evidence on the objection of the plaintiffs. Dealings between Barbour & Hamilton and other, persons could have no such relevancy to the relations between James L. Barbour and his father-in-law, David Moore, as would justify their admission and the probable opening up of collateral inquiries in respect of them.

11. The last two assignments of error may be considered together in the view that we have taken of them. One is on an exception taken to a special instruction given on behalf of the plaintiffs, and the other is founded on the refusal of an instruction asked by the defendant.

Without pausing to consider the verbal criticisms of these special instructions respectively, we think no reversible error can be found in the ruling upon either.

If, in the instruction given for plaintiffs, too much prominence was given to certain facts bearing on the issue of undue influence, still it is.not of such a nature as to require reversal of the judgment. Ormsby v. Webb, 134 U. S. 47, 67.

Turning to the general charge of the court and the nineteen special instructions given at the request of the defendant, we find that the case was given to the jury fully and fairly, and as favorably to the defendant as she could reasonably ask. No injury was done her by the refusal of her twentieth special prayer, for all that was proper in it is to be found in the general charge. And if an erroneous impression might have been made upon the jury by the special prayer of the plaintiffs, if taken by itself, it must necessarily have been corrected by the general charge.

Finding no reversible erx-or in the record, the judgment must be affirmed, with costs; and it is so ordered.

Affirmed.