Riddle v. Gibson

29 App. D.C. 237, 1907 U.S. App. LEXIS 5447

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

The first assignment of error relates to the action of the trial court in overruling the motion of the caveators for a postponement of the trial. On April 4, 1906, the day the case was called for trial, the caveators asked for a continuance, and based their application upon petition and affidavit, the first of which states that Mrs. Susan Shaw, a sister and next of kin of the testatrix, Kate Ross, was living at Bennings, District of Columbia; that the premises were then quarantined because of the existence there of diphtheria; that the caveator, Alpheus E. Riddle, accompanied by his attorney, Inrenzo A. Bailey, went to the said premises on Sunday, April 1, 1906, for a conference with Mrs. Shaw concerning the testimony to be given by her in the case, and that, finding the house quarantined, they called upon Dr. Savage, who lived near by, and who informed them that the quarantine would be continued for about a week longer; that they expected to prove by Mrs. Shaw that Dr. Gibson had in formed her that he took Mrs. Ross to the office of the Washington Loan & Trust Company to have her will drawn; and that Dr. Gribson had made “diligent effort to induce the said Mrs. Shaw to oppose the said caveators and to withhold from them the information in her possession material to the issues in this case.” Affidavit was also made by Mr. Dailey, as attorney for the caveators, in which he said that his clients could not safely proceed to trial without the testimony of Mrs. Shaw, “or at least until I shall have had an opportunity to confer with her in reference to the matters involved in the issues framed.” Upon the filing of this petition and affidavit the caveatee prodiiced an affidavit of Dr. Savage, in which he stated that Mrs. Shaw had been for some time past “sixfficiently strong, mentally and physically, to have her deposition taken at her home; but she is not, has not been, and will likely never be, able to attend court and give her testimony. That the said home is not quarantined, and that persons can go in and out there without incurring the least danger of contracting or carrying the disease.” Counsel for caveatee thereupon offered to waive any notice, and to proceed with counsel for caveators to the home of Mrs. Shaw, either before or after adjournment of court, and take her deposition. This offer was repeated at a later stage of the trial.

There is absolutely no merit in this assignment. The petition and affidavit are inherently defective in that they fail utterly to show that diligent effort had been made to consult this witness at a seasonable period before the trial, or that her testimony was material. John Riddle, Sr., who joined his counsel in signing this petition, was a brother of Mrs. Shaw, and subsequently testified that she was “in her eighties,” and that she “had been in bad condition for the last twenty years with some physical ailment which confines her to the house most of the time.” The record also discloses that on January 10, 1906, the day the issues were framed, the court ordered “that the trial of said issues be and the same is hereby fixed for the 24th day of January, 1906.” On March 12, 1906, another order was made postponing the trial until April 3, 1906. Notwithstanding these orders, and notwithstanding the fact that the condition of Mrs. Shaw must have been known to the caveators, and should have been known to their counsel, it does not appear that any effort was made to see her until a day or two before the trial. Moreover, it is inconceivable that Mrs. Shaw would have testified that Dr. Gibson informed her that he went with her sister, Mrs. Ross, when she made her will, because Mrs. Ross was alone when she went to Mr. Speare, who directed her to the trust company, and Mr. Eichelberger and Mr. Thompson testified that she was alone when she appeared at the trust company to have her will drawn, and when she subsequently returned there to execute it. It is not for us to speculate and surmise that Dr. Gibson advised Mrs. Shaw to withhold information from the caveators, when the petition does not even allege that any seasonable effort was ever made to obtain this information from her, — much less the character of the information in her possession. The discretion of the court in overruling the motion for a continuance was rightly exercised, and will not be disturbed. Isaacs v. United States, 159 U. S. 487, 40 L. ed. 229, 16 Sup. Ct. Rep. 51.

The second assignment of error is based upon the ruling of the court allowing the answer of witness Thompson to the question whether at the time Mrs. Ross signed the will he had “any way of knowing that that was Kate Ross, except that she signed her name as Kate Ross,” to stand. We think the answer, “By comparison of signatures,” warranted and responsive to the question which was asked in cross-examination, and which was broad and general.

There is no merit in the third assignment of error, which involves the ruling of the court admitting the will in evidence. Whether the testimony at that time was sufficient, without more, to warrant the action of the court, is not material, because at a later stage of the trial ample evidence was introduced to fully establish the identity of the testatrix. Witness Speare, whose office was not far from the Loan & Trust Company where Mrs. Ross had her will drawn, and who had known her for many years, directed her there for that purpose, and her disclosures to him as to the disposition she intended to make of her prop erty exactly coincided witli the terms of the will. To complete the identity, Mrs. Lochte testified that Mrs. Boss, whom she had known for several years, had informed her of her interview with Mr. Speare, that she had made a wdll and left everything to Dr. Gibson. The testatrix made a similar statement to Miss Coyle, and informed various other witnesses as to what disposition she had made of her property. This testimony, taken in connection with the testimony of the subscribing witnesses, we think conclusively established the identity of Mrs. Boss.

The fourth assignment of error is based upon the exclusion by the court of the testimony of Charles Biddle and Bichard B. Anderson in rebuttal. Charles Biddle stated that he had heard the testimony in regard to what Mrs. Boss said about her destitution and about carrying her baby to Bladensburg in her arms. He was then asked: “State whether, so far as you know, you ever had any information that that statement was true.” The court declined to permit the witness to answer this question; whereupon counsel for caveators said: “I want to show whether or not the relatives had any knowledge of any such condition of things as depicted by any such statement of her having to go to Bladensburg on foot.” The court still declining to admit the answer, counsel further stated that ho offered to prove that the witness “at that time was in a position to know whether or not his aunt was in any such condition of destitution, and whether or not any of her relatives had treated her in the way in which they are said to have treated her by the evidence that the other side have put in, and if it was true that none of them knew anything about it.” There are several objections to this testimony. A sufficient one is that caveators in their evidence in chief having based their objection to the allowance of the will solely upon the fact that Mrs. Boss was prejudiced against them and other relatives because she believed they had not helped her when she was in need, they should then have introduced this testimony, if it tended to show that her prejudice was fanciful and amounted to a delusion. Another objection is that the caveatee’s witnesses did not testify that Mrs. Boss had said that her relatives knew of her destitution. The testimony was not, therefore, proper rebuttal. A still further objection is that the offer was too indefinite and general. Counsel merely offered to show that the witness was in a position to know whether what Mrs. Ross had stated was true. What the answer of the witness would have -been must be surmised by the court. “There is nothing to show what the testimony of the defendant would have been if admitted, or what the defendant offered to prove thereby, or that it would in any respect have been material, and for this reason also an exception to its exclusion cannot be maintained.” Hathaway v. Tinkham, 148 Mass. 85, 19 N. E. 18; Dreher v. Fitchburg, 22 Wis. 675, 99 Am. Dec. 91; Jackson v. Hardin, 83 Mo. 187; Savary v. State, 62 Neb. 168, 87 N. W. 34; Keffer v. State, 12 Wyo. 49, 73 Pac. 556; Abbott, Trial Brief, 49; Shinners v. Locks & Canals, 154 Mass. 168, 12 L.R.A. 554, 26 Am. St. Rep. 226, 28 N. E. 10. What has been said about the testimony of witness Riddle is equally applicable to that of witness Anderson.

The fifth and most important assignment of error is based upon the ruling of the court in directing a verdict in favor of the caveatee upon each of the said issues. The caveators contend that there is evidence that Mrs. Ross at the time of the execution of the will was not of sound and disposing mind and capable of executing a valid deed or contract, because she was suffering from insane delusions with respect to her relatives. In the argument at bar it was not contended that the record contains any evidence tending to show undue influence or fraud, and those issues are therefore to be regarded as abandoned.

The right of the trial court to direct a verdict, when the evidence introduced at the trial, with all the inferences that the jury may justifiably draw from it, is insufficient to support a verdict, is too well settled to admit of discussion. Ford v. Ford, 27 App. D. C. 401, 6 L.R.A. (N.S.) 442; Scott v. District of Columbia, 27 App. D. C. 413. The question, therefore, to be determined, is whether there is any evidence in the record that Mrs. Ross was suffering with such an insane delusion regarding her relatives as rendered her incapable of testamentary capacity. “Mere eccentricities do not justify setting aside a will on the ground of mental incompetency. * * * 'A testator may be eccentric, opinionated, peculiar, and yet may be a shrewd man of business, capable of managing his own affairs and disposing of his property by deed or will. Mere eccentricities, prejudices, or resentment against one or more relatives, without more, cannot invalidate a will.” Robinson v. Duvall, 27 App. D. C. 546. We take it that an insane delusion exists when a person conceives the existence of something fanciful and extravagant, something having no foundation in reason or fact, and is dominated and controlled by such imagination, and therefore acts, as he would not otherwise have acted. Middleditch v. Williams, 45 N. J. Eq. 726, 4 L.R.A. 738, 17 Atl. 826; Carpenter v. Bailey, 94 Cal. 406, 29 Pac. 1101; Re Kendrick, 130 Cal. 360, 62 Pac. 605; Robinson v. Adams, 62 Me. 401, 16 Am. Rep. 473; Guiteau's Case, 10 Fed. 170; Benoist v. Murrin, 58 Mo. 307. The only evidence offered in this case that Mrs. Ross was suffering from an insane delusion prior to and at the time she executed her will is the testimony heretofore detailed, to the effect that when her husband deserted her, and when her daughter died, her relatives did not manifest that degree of interest in and solicitude for her that the situation required. One of her brothers testified that he did not even know her husband, when his sister was married, or what became of her husband, although he (the witness) was living in Washington at the time. The other brother admitted that his sister had never been in his house in her life; and neither brother testified to having assisted, or to having offered assistance to, his sister at any time or in any manner. It is safe to assume that, having introduced evidence that Mrs. Ross was displeased because of their lack of interest in her and sympathy for her when she was in trouble, they would have testified to any assistance rendered or offered her had they been able to do so. The testimony they did give tended to support and corroborate the statements of Mrs. Ross, and from all the testimony we conclude that caveators manifested much greater interest in the small estate left by this lonely woman — an estate she accumulated by patient toil — than they ever did in her. While she was not “fighting mad with them,” as she expressed it, she did feel that she had a right to ignore them as they had ignored her, and leave her small savings to those who had been kind to her. We cannot say that this even tended to show that she was laboring under an insane delusion, for, if we should, we would be running counter to the laws that govern human action. We fail to find a scintilla of evidence upon which a verdict for caveators might have been predicated, and we therefore affirm the action of the court below in directing a verdict.

The judgment is affirmed, with costs. - Affirmed.