Jones v. Collins

51 A. 398, 94 Md. 403, 1902 Md. LEXIS 33

• Court: Court of Appeals of Maryland
• Decided: January 17, 1902
• Status: Published

Opinions

This is an appeal from rulings of the Court below at the trial of issues sent from the Orphans' Court of Worcester County, on a caveat to the last will and testament of Benjamin I. Jones.

Two issues were sent to the Circuit Court: First, "Was Benjamin I. Jones of sound and disposing mind, and capable of making and executing a valid deed or contract at the time of making and executing a paper-writing bearing date February 7th, 1900, purporting to be his last will and testament, and offered to the Orphans' Court of Worcester County for probate." The second inquired whether he was induced to make and execute said paper-writing by fraud and undue influence practised on him, but this was apparently abandoned at the argument in this Court and it is unnecessary to set it out here in full.

On these issues the jury rendered a verdict for the caveatees and the caveator has appealed.

By the will offered for probate the testator bequeathed to each of his four children one dollar, and to his wife seven hundred dollars in lieu of dower in all his real estate upon condition she should consent to the sale of the same free of her right of dower; all the residue of his estate, including the legacy to his wife, if she should renounce the same, he bequeathed equally to his grandchildren living at his death, their respective shares with accumulated interest to be paid to each as they reached twenty-five years of age.

We will consider first the questions of evidence. Mrs. Mary Gootee testified for the caveator that she was the sister of the testator's wife, and had known him ever since his marriage; that at first she observed nothing in his behavior different from that of other men; that after his marriage she became better acquainted with him and her acquaintance continued up to his death; that she was accustomed to go to his house and had seen some pretty bad behavior there; that he abused his wife and called her ill names with bitter oaths, and that his wife gave him no cause for his conduct; that he would get mad when he was at work in the field and abuse her for everything; that she left her husband seven or eight times, or a dozen, he had been so bad to her; that he would run her off in the night and she would go to witness' house or other places; that on one of these occasions her husband came after her, and she told him she had gone back so many times and could not stay that she would not go then, and he got his knife out after her, and witness got between them. That the year before the time of her testifying he came to witness' house on Sunday and wanted his daughter and Ben (his son) put up as a target to shoot at, right in her yard. That there was no cause for such talk but talking about the money he lost with the Halls. That about five years before that time a cancer developed on his head, that it was removed and reappeared in his ear, and that after this his mind would fly off.

The caveators counsel then asked her this question: "Now, Mrs. Gootee, from your acquaintance with Mr. Jones, and from the facts you observed with regard to him, is it your opinion that Mr. Jones was entirely sane," to which question the caveatees objected, and the Court sustained the objection. This constitutes the first exception. Counsel upon both sides argued this exception upon the assumption that the question was excluded on the ground that no proper foundation had been laid for the expression of an opinion by this witness, but we think it is clear Mrs. Gootee was competent to express an opinion as to the testator's testamentary capacity according to the rule laid down in Townshend v. Townshend, 7 Gill 28, and since repeatedly declared in this Court, she having stated facts and circumstances abundantly fortifying her opinion to render it competent evidence. In Weems v. Weems, 19 Md. 345, it was broadly suggested by the Court that a brother of the testator who had been intimate with him through life, was competent to express an opinion upon his testamentary capacity without stating the facts and circumstances upon which it was founded, though we are not to be understood as expressing any opinion upon this relaxation of the rule. We apprehend that the ruling of the Court in the case before us was based upon the form of the question, which we think clearly objectionable, because it simply asked whether she regarded him as "entirely sane," and did not at all invoke her opinion as to the subject of the issue, viz., his testamentary capacity at the date of the execution of the will. The test of testamentary capacity in this State is not whether the testator is "entirely sane," but whether he is "of sound and disposing mind, and capable of executing a valid deed or contract." In Davis v. Calvert, 5 G. J. 269, and inColvin v. Warford, 20 Md. 357, the meaning of these words has been defined to be "that the testator must have had sufficient capacity, at the time of executing the will, to make a disposition of his estate with judgment and understanding in reference to the amount and situation of his property, and the relative claims of the different persons who should have been the objects of his bounty;" and the Court added, "but the meaning of the words judgment and understanding is not that the jury should reject the will because they may believe that it was in its provisions unjust or injudicious, though those provisions may be considered by them in deciding the question as to the testators capacity."

In Higgins v. Carlton, 28 Md. 115, an instruction was approved in which the jury were told that "neither age, nor sickness, nor extreme distress, nor debility of body will disqualify a person from making a will, if sufficient intelligence remains." InWhitney v. Twombly, 136 Mass. 145, the Court said: "The highest degree of mental soundness is not required in order to constitute capacity to make a testamentary disposition of property;" and in Sloan v. Maxwell, (2 Greens Ch.) 3 N.J. Eq. 563, where the rules by which testamentary capacity should be determined, and the reasons which led to their development, were reviewed with great common sense and much learning, it was held, "that to constitute a sound and disposing mind, it is not necessary that the mind should be unbroken or unimpaired, unshattered by disease or otherwise." In that case the Court, quoting from Den v. Vancleve, (2 Southard), 5 N.J.L. 660, said, "It has not been understood that a testator must possess the qualities of sound and disposing mind and memory in the highest degree. * * * Few indeed would be the wills confirmed, if this is correct. Pain, sickness, debility of body, must according to its violence or duration, in greater or less degree weaken or derange the mind, but the derangement must be such as deprives him of the rational faculties common to man." It would perhaps be going too far, in view of the language of our statute upon this subject, to adopt the last clause of the passage cited above, but we can safely say, the derangement must be such as renders him incapable of executing a valid deed or contract. There is but a thin partition between entire sanity and that degree of eccentricity, or abnormal subjection to temper or passion, which may be held to constitute want of sanity, and if for the standard of testamentary capacity provided by our statute is to be substituted the testator's entire sanity, very few could make testaments which could withstand the assaults of disappointed relatives.

But another fatal objection to the question is, that being directed not to the proof of capacity, but of incapacity, it is essential to show that such incapacity existed at the date of the execution of the will and this question fails so to direct or limit the inquiry, so that, if answered, it would not have been possible to say that the witness referred to the time of execution. Brashears v. Orme, 93 Md. 442. The 3rd, 4th, 5th, 6th, 7th and 8th exceptions may be conveniently considered together. In all of these, witnesses were called by the caveatees and proved more or less extended acquaintance with the testator, and business transactions with him varying in character and frequency. Some of these witnesses were then asked whether in their opinion the testator was capable of making a valid deed or contract, and others were asked whether they had observed during their intercourse with him, anything that indicated a lack of mind or of understanding on his part, to all of which questions the caveator objected, but the objections were overruled, and the witnesses answered either that he was competent to execute a valid deed or contract, or that they had observed no indication of lack of mind or understanding on his part. It is contended that the form of the latter question is objectionable and that in both the inquiry should have been directed to the time of the execution of the will. The form of the latter question is somewhat unusual, but we think it is free from serious objection, since the answer, however given, must reflect upon the testator's competency. That form has received the sanction of the Massachusetts Supreme Court in Nash v. Hunt, 116 Mass. 237, where a witness was allowed to state in answer to a question so framed, "that he had observed no incoherence of thought, nor anything unusual or singular in respect to his memory."

Upon the other ground of objection it must be observed that these witnesses were called to prove competency, and that, as reflecting upon the charge of incompetency, the range of inquiry covers any period either before or after the execution of the will. This was decided in Townshend v. Townshend, supra, where the question "the whole period of the witness acquaintance with him," and was emphasized in the last case in this Court.Brashears v. Orme, supra.

We therefore find no error in these rulings.

In the ninth exception, Dr. Geo. W. Bishop testified that he was one of the subscribing witnesses to the will, and that he had known the testaor for over forty years and saw nothing unusual in his manner. He was then asked if he considered him capable of executing a valid deed or contract, to which question objection was made, but he was allowed to answer, and answered, yes. The contention of the appellant is that it was the duty of the cavetees to prove by the subscribing witness, before putting this question, that at the time of the execution of the will he investigated the mental capacity of the testator, and it is claimed that this position is sustained in Townshend v.Townshend, supra. But we do not so understand the law, nor do we think it was so held in the decision mentioned. It is the duty of the subscribing witnesses to inform themselves of the testator's mental capacity before attesting the will. Witnesses are required by the law not alone to protect the testator against fraud in the execution of his will, but also to judge of his capacity, which is primarily established by their oaths when the will is offered for probate, but it will be presumed, until the contrary is made to appear, that they have discharged this duty. It was within the power of the caveator in this case by cross-examination to ascertain how far Dr. Bishop had satisfied himself of the testator's competency, and if it had appeared he had made no effort to inform himself, or that he entertained any doubt on the subject, that fact would have gone to the weight of his testimony. There may be circumstances, such as existed inWilliams v. Lee, 47 Md. 321, which as was there held, may justify friends and relatives in complying with the request of a person to witness a will where they know or believe the supposed testator to be incompetent, but in the absence of such peculiar circumstances, persons called on to witness a will when they believe the maker to be incompetent, cannot be justified in participating in an act of this character which must either be declared a farce when offered for probate, or lead to litgation of the most unfortunate character. We perceive no error in the ruling upon this exception.

The second exception yet remains to be considered. The first witness called by the caveatee was Dr. John King, a practising physician of Pocomoke City, whose testimony in full is in these words: "Have known Benjamin I. Jones thirty or thirty-five years; never attended him; only at the office prescribed for him twice. About two years ago, and again during February of the present year." He was then immediately asked, "Was Benjamin I. Jones, in your opinion capable of executing a valid deed or contract?" The caveator objected, but the Court overruled the objection, and the witness answered, "yes."

A majority of the Court is of opinion that this question was properly allowed as falling within the general principle expressed in Crockett v. Davis, 81 Md. 149, in these words: "It is well settled in this State that a physician can testify as to the mental capacity of a testator without first stating the facts and circumstances on which the opinion was formed;" and that, as in the case of a subscribing witness, the weight of his opinion is to be tested upon cross-examination. From this view,as applicable to the question propounded to Dr. King upon thefoundation laid in this case, the writer of this opinion emphatically dissents, and his views upon this exception will be appended to this opinion.

This brings us to the rulings upon the prayers, and in these we find no error.

As the record shows no evidence whatever was offered to prove fraud or undue influence, the appellees' second prayer may be taken as conceded.

The appellees' first, fourth and fifth prayers are open to no criticism that we can perceive, and no objection was urged to them in argument.

The only criticism directed to the appellees' third prayer is that while it is in the very language of the prayer approved inBrown v. Ward, 53 Md. 382, it is not qualified, as in that case, by requiring it to be considered in connection with all the other instructions granted upon that subject. But we do not think the definition of the words "sound and disposing mind and capable of executing a valid deed or contract" is too general for the facts of this case, and there was no need, therefore, of the qualification annexed in 53 Md.

It is urged in objection to appellees' sixth prayer that it requires the jury to find for the defendant on the first issue if they believe the testator was capable of executing a valid deed or contract at the time of executing the will, though they may have believed him incapable at some prior time; and that the prayer should have instructed the jury that the burden of proof was on the caveatees to show recovery from incapacity. This is the correct rule where permanent insanity is established, or insanity with lucid intervals. In the one case the caveatee must show full recovery, and in the other, that the will was executed in a lucid interval. But where the alleged incapacity is the result of an insane delusion the burden is on the caveator to show that the will is the direct offspring of such delusion.

We perceive no objection to the appellees' seventh prayer. InBrown v. Ward, 53 Md. 392, it was said: "A person entertaining a violent dislike to another may be actuated in so doing by a fancied and unusual cause, yet it would not necessarily be such a delusion as would justify his being pronounced insane. If there was a sufficient cause for such antipathy to those nearest in relation and blood, it would not invalidate the will, if its provisions were in accord with his own judgment and choice," and the jury found he had the degree of testamentary capacity described in the caveatees third prayer.

The appellant's first prayer appears to be based partly upon the law applicable to confirmed insanity, and partly upon that applicable to intermittent insanity with lucid intervals, and as framed would be misleading to the jury, even if the legal propositions sought to be embodied therein were correct when analyzed and separated.

In addition to this there are recited therein numerous alleged facts of which there is no evidence in the record, and this alone would require its rejection.

The appellant's second and third prayers attempt to apply to occasional paroxysms of mental disturbance, the rule applicable to confirmed insanity, and were therefore properly rejected.

The appellant's fourth prayer reversed the rule relating to the burden of proof in case of mental delusions, and could not therefore have been granted.

It results from the views of the majority of the Court that the rulings of the Circuit Court must be affirmed.

Rulings affirmed.

(Decided January 17th, 1902.)