Higgins v. Carlton , 1868 Md. LEXIS 9 ( 1868 )

Brent, J.,

delivered the opinion of this Court.

This case arises upon a caveat, filed in the Orphans’ Court of Prince George’s county, to the will of John Higgins. Issues involving execution, testamentary capacity, fraud and undue influence, were sent up for trial to the Circuit Court for that county. Upon application by the caveatees the case was afterwards removed to the Circuit Court for Anno Arundel county, and it now comes before us upon the several exceptions, taken by the caveators at the trial, to the rulings of that Court.

The first exception alleges error in the Court in refusing to allow a witness, upon cross-examination, to testify in regard to the difference between the contents of a memorandum and the will in controversy. It is necessary in deciding upon the admissibility of this evidence to refer to a part of the testimony previously given by this witness. He was the attorney who drew the will; and upon his examination in chief had stated, that it “was drawn from a memorandum placed in his hands by Mrs. Higgins, to whom, at the suggestion of Mr. Higgins, he applied for it.” Upon cross-examination, the caveators asked him to produce this memorandum. This he did, and handed it over to them. Upon further cross-examination he testified to certain discrepancies between it and the will, and to the fact “that in drawing the will he did not pursue the memorandum exclusively.” He was then asked, “if the memorandum differed from the will in any other respects?” Upon objection being made _ by the counsel for the caveatees, the Court refused to permit the question to be answered. It has been argued that the evidence was admissible upon three grounds — to test the accuracy of the recollection of the witness, to contradict him, and to prove the genuineness of the memorandum. The last ground is wholly untenable, and is too clearly in violation of the rules of evidence to be seriously entertained. As a general proposition, a party has the undoubted right, upon cross-examination, to test the accuracy of the recollection of a witness, and to show that his statements are contradictory. But this cannot be done in violation of other equally well settled rules. The memorandum referred to, had not been given in evidence to the jury, and it is apparent that the witness could not have answered the question, put to him by the caveators, without proving by parol a part, if not all, of its contents. It is no reason in favor of the admissibility of this evidence, that the witness had been permitted to speak, without .objection, of some of the differences between this memorandum and the will. The fact that illegal testimony has been permitted to go to the jury, without objection, cannot be urged as a ground for allowing other testimony, inadmissible under the rules of evidence, to be given when objection is made. This memorandum being in Court, its contents could not be proved by parol for any purpose. TYhat is in writing must be proved by the writing itself. In the Queen’s case, 2 Bro. & Bing., 288, (6 E. C. L. Reps., 115,) the following question was submitted to the Judges, “whether, when a witness is cross-examined, and upon the production of a letter to the witness under cross-examination, the witness admits that he wrote that letter, the witness can be examined in the Court below, whether he did or did not in such letter make statements, sncli as the counsel shall, by questions addressed to the witness, inquire are or are not made therein?” They unanimously determined that the evidence was inadmissible. Abbott, C. J., in delivering their opinion, remarks, “the Judges do not conceive that they are presuming to offer any new rule of evidence, now for the first time introduced by them; but, that they found their opinion upon what, in their judgment, is a rule of evidence as old as any part of the common law of England, namely, that the contents of a written instrument, if it be in existence, are to be proved by that instrument itself, and not by parol evidence.” The offer in this case is clearly within the prohibition of the rule, for the question could not have been answered without proving by parol, the contents of the memorandum.

The case of Burckmyer & Adams vs. Whiteford, 6 Gill, 13, if any authority is needed, disposes of the second exception. The witness was asked, “why he made in the will the change from the memorandum, in reference to the devise of the lands to Mrs. Eerrall'?” His reasons for doing so are certainly responsive to the question. Upon his proceeding, however, to give them, the very party asking the question, objected. It is now argued that they were inadmissible, because the necessary inference of their being irrelevant was raised by the witness stating “he did not consult Higgins or talk with him upon the subject.” The reasons given by the witness are not in the record, nor is it necessary that we should know what they were, in determining the point as it is presented. Looking, however, to the preceding testimony, the inference is in favor of their relevancy, or at least it cannot be assumed they were necessarily irrelevant. A third party, at the request of Higgins, may have directed the alteration to be made. That it was done by his authority, and for reasons satisfactory to him, cannot be doubted. The devise, as it is found in the will, was approved by Higgins, for this witness states, that after preparing the will, “ he read it to the testator verbatim et literatim, who ratified it.” We do not, therefore, perceive that there was any error, or injustice done to the appellants, in permitting the witness to answer a question put to him by themselves.

It has been repeatedly settled by the decisions of this Court, that a judgment will not he reversed, where it appeal's from the record, the appellants have not been injured by the rulings of the Court below, although such rulings may be erroneous. For this purpose, it is proper to look to the whole record, and not, as was argued in this case, to that part only of the record, which precedes and includes the particular exception under consideration. "We think it unnecessary, and do not mean to express any opinion upon the question presented by the third exception. The error there complained of, even conceding the ruling of the Court to be wrong, does no injury to the appellants. The testimony, sought to be elicited by them, is afterwards given by the witness, Scott, and is found in the evidence contained in the seventh exception. He there assigns his reasons for objecting to sign the will in controversy, as one of the attesting witnesses, and the appellants have had the benefit of those reasons before the jury.

The fourth exception is taken to the refusal of the Court below to allow a witness to give in evidence his opinion of the “ physical capacity ” of the testator to hold conversations testified to by another witness, the witness under examination not being present. It is properly said in Phillips vs. Kingfield, 1 Appleton’s R., 379, that “the opinions of a witness are not legal testimony except in special (¡ases; such for example, as experts in some profession or art, those of the witnesses to a will, and in our practice, opinions on the value of property. In other cases, the witness is not to substitute his opinion for that of the jury ; nor are they to rely upon any such opinion instead of exercising their own judgment, taking into consideration the whole testimony.” The Courts of Maryland have gone a step further, and allowed witnesses to express their opinion upon the menial condition of a testator, whose will is controverted, unless it be a more naked opinion, unaccompanied by the facts and circumstances upon which it is founded. It is not claimed that the witness in this case is an expert, nor is he brought within any of the other exceptions to the rules. We have failed to find a single authority in which testimony of this character has been admitted. The rule has already been sufficiently relaxed, and we think the doctrine of admitting the opinions of witnesses has been carried quite as far, as is consistent with a proper administration of the law.

The fifth exception having been abandoned by the appellants, the next question arises upon the sixth exception. The witness was asked, for the purpose of laying a foundation to contradict her, “ if she had ever had a conversation with the witness Scott, in reference to the memorandum from which the will was drawn?” Having answered in the negative, Scott was afterwards called, and the question, set out in this exception, put to him by the caveators. The Court, upon objection made, refused to permit him to answer it; and in this refusal the appellants allege there is error. In Whiteford vs. Burckmyer, 1 Gill, 139, the rule is laid down, that “the witness, whom it is intended to impeach, should have a full and fair opportunity to recollect, by calling his attention to dates, names and other attendant circumstances connected with the matter, about which he is charged to have made different statements.” In the present case the memorandum spoken of, had been written nine months before the date of the will in controversy, and to have given the witness “a full and fair opportunity to recollect,” her attention should have been called to something more than the name of the party. The question embraced a long period of time; and justice to the witness required that her attention should have been directed, at least with a reasonable degree of certainty, to dates and other attendant. circumstances. The question put to her was of the most general character; and for the purpose for which it was asked, is liable to another fatal objection. She was not asked whether she had made certain statements about this memorandum to the witness Scott, but simply if she had ever conversed with him about it. Where the object is to lay a proper foundation to discredit a witness by proof of any thing he may have said, it is not alone sufficient to direct “his attention to dates, names and other attendant circumstances ;” he must also be asked “ whether or no he has said or declared that, which is intended to be proved.”— 2 Brod. & Bing., 313. In this view of the law, we think a proper foundation was not laid for the introduction of the testimony offered, and that the Court was right in rejecting it.

The seventh exception also presents a matter of evidence. The question asked by the caveators was irregular. The caveatees had closed their case, and the caveators, at that stage of the trial, were entitled strictly to offer rebutting evidence only. The evidence offered was not of that character. It certainly could not have had the effect to contradict the witness whose testimony it was designed to impeach. He had made no statement that Scott had testified to rational or irrational conversations on the part of the testator. If the testimony had already been given, it was only asking the witness to repeat what he had before said; and if it had not, it wras testimony properly adrnissible upon his examination in chief. In either event the Court had the right to reject it.

We do not concur in the views, urged by the counsel for the appellants, in reference to the right and power of the Court, of its own motion, to modify a prayer. To deny this right -would be undertaking-1^ change a practice long established in this State, having its foundation in reason, and well calculated to advance a proper administration of justice. The right to modify a prayer, and error in the modification made, present totally different questions. In the cases referred to by the appellants’ counsel, (6 G. & J., 399; 1 Gill, 280,) the prayers granted by the Court below were not reversed because the Court had no right to modify them, but because as granted they were erroneous. In Keener vs. Harrod & Brooke, 2 Md. Rep., 74, this question was reviewed, and we regard it as finally settled by that case. The Court say, “however, as a general rule, it may be proper to grant or refuse prayers in the terms in which they are presented, the Court may reject them all and instruct the jury in their own words, or grant the prayers with such explanations or qualifications as may be necessary to a proper understanding of the case.”

The next question to be considered is, were the modifications of the caveators’ third and fifth prayers correct, or in other words, did the prayers as granted truly state the law of the case? The term “credible witnesses,” found in the third prayer, is now settled beyond dispute, as conceded in the appellants’ brief, to mean “competent witnesses at the time of attestation.” 2 Greenl. Ev., sec. 691; 3 Har. & McH., 513. In giving therefore to the word “credible” in the connection in which it is used in the prayer, its technical and legal signification, the Court correctly stated the law, and gave to the jury such explanation of its meaning as was doubtless “necessary to a proper understanding of the case.” The restrictions, in the prayer as modified, upon the competency of attesting witnesses, “by reason of infancy, insanity, or mental imbecility, or any other cause,” even if erroneous, could not have resulted in injury to the appellants, for the restrictions apply to the appellees and not to them. The argument, that this prayer submits to the jury questions proper only for the Court, is fully met by the Act of 1862, ch. 154. This law provides that an instruction shall not be reversed “because of a question of law having been thereby submitted to the jury, unless it appears from the record, that such objection was taken at the trial.” This objection must appear affirmatively upon the record, and is not to be left as a matter of inference. This record is silent as to any such objection “taken at the trial,” and it cannot, therefore, be now urged before this Court.— Lane, Adm’x of Horine vs. Lantz, 27 Md. Rep. —; Morrison & Kildow vs. Hammond’s Lessee, 27 Md. Rep. —. The facts stated by the Court below, in the modification of the fifth prayer, are sufficient in law, if found by the jury, to constitute a legal request by the testator for the subscribing witnesses to attest his will. The testamentary law of this State does not require that a testator should ask them to attest it. His assent, either express or implied, is sufficient; provided “ the act be done with his knowledge, and not in a clandestine and fraudulent way. Sec. 301, Art. 93, of the Code of Pub. Gen’l Laws, referring to the attestation of wills, is in these words: “and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses.” If the prayer had been granted by the Court, without the qualification annexed, the instruction might have misled the jury, in supposing that the law required the testator to ask the witnesses to sign his will — the word request being ordinarily understood in that sense. The Court was therefore right in stating facts, in its modification of the prayer, which, if found by the jury, were sufficient to establish in law the attestation of this will. 5 Har. & Johns., 480; 3 Md. Rep., 501; 8 Md. Rep., 23; In White vs. British Museum, 6 Bing., 310, Tindal, C. J., says, that “ in the execution of wills as well as of deeds, the maxim will hold good, ‘non quod dictum sed quod factum est, inspicitur.’ ”

The question as to the onus probandi, where the issue is testamentary capacity, has been a great deal discussed by both Judges and text-writers, and has furnished an occasion for the display of much learning and ingenuity. The numerous decisions upon the subject, in this country, are by no means uniform, and many of them are in direct conflict, so that any attempt to reconcile them would be hopeless. They all, however, agree upon the general proposition, that sanity is presumed by law. But, in some of the States, it is held, that this general presumption does not apply to last wills and testaments — they forming an exception to the rule — and that therefore a party propounding a will must not only prove execution, but must also offer positive proof of capacity. 22 Maine Rep., 438; 24 Maine Rep., 162; 2 Gray, 524. A different rule, however, is recognized in most of the American Courts, and it is sustained by reason and the Aveight of authority. 5 Johns. R., 144; 2 Green’s Ch. R., 580; 7 Pick., 94; 4 Wash. C. C. R., 269; 1 Redfield on Wills, Ch. 3, Sec. IV, sec. 5. If the presumption of Lav is in favor of sanity, Ave can discover no satisfactory reason Avhy it should not be applied to Avills, as Avell as to any other instrument of Avriting. The argument draAvn from the fact, that the statute requires the testator to be “ of sound and disposing mind,” if a good one, would apply Avith equal force to the other requirements of the statute. The testator, in terms as affirmative as those in reference to capacity, is required to be of a certain age fixed by the statute. Yet no Court has ever required a party, propounding a Avill, to prove the age of the testator, until the question Avas raised upon proof by the contestants. "Why the one should be permitted to rest undisturbed upon the doctrine of presumption, and not the other, to say the least, does not seem to be in accordance Avith sound reason. In Swinburne, 44, pt. 2, sec. 3, it is. said, “every person is presumed to be of perfect mind and memory unless the contrary is proved. If it be asked wherefore, then, is that usual clause (of perfect mind and memory) so duly observed in every testament,’ if he that doth prefer the will be not charged with the proof thereof? It may be answered that that which is notorious is to be alleged, not proved. And so this being accounted notorious (because where the contrary appeareth not, the laAV presurncth it) it need not’ be proved.” This doctrine is recognised to its full extent, and affirmed in the cases last above referred to; and the rule is distinctly laid doAvn as a logical conclusion from the presumption in favor of sanity, that “the burthen of proof lies upon the person Avho asserts unsoundness of mind; unless a previous state of insanity has been established, in Avhich case, the burthen is shifted to him Avho claims under the will.” In referring to the doctrine laid down in 2 Southard, 454, that “ after probate, the sanity of the testator AAras always to be presumed in favor of the will, the insanity to be proved by him that alleges it,” the Court say in Sloan vs. Maxwell, 2 Green’s Ch. R., 580, by the words after probate, we are to understand after proof of formal execution.” These authorities rest upon sound reasoning. They, also, harmonise with the ancient rule of presumption in favor of sanity, and thereby escape the fallacy “of requiring a party to give positive proof of the existence of a fact, which the law presumes, in the absence of all proof.”

The practice in this State has been in conformity to these views of the law. The caveators have always taken the position of plaintiffs, and have had the right to open and close the case. Brooke vs. Townshend, and others, 7 Gill, 24, is conclusive upon this question of practice. In the Court below the caveatees claimed the right of opening and concluding the argument before the jury. The question coming before this Court upon appeal, Mr. Justice Maxitut, in delivering the opinion, says, “the issues in dispute and .transmitted to the County Court for the determination of a jury, are predicated on an affirmation of facts, introduced for the purpose of impeaching the will, by the caveators on the one side, and a negation of those facts by the caveatee in his answer. And it appears to us to be perfectly clear, that in a case thus situated, the caveators are to be regarded as the assailants of the will, as the actors who originated this proceeding, and who were therefore entitled to be placed upon the record in the attitude of plaintiffs.” This ease also decides, that the factum of the will being conceded by the pleadings, the will must be placed, by the caveators, in evidence before the jury. The Court refrained from expressing any opinion upon the “presumption of its validity,” as they considered the question a mere abstract one, in the form in which it was presented by the exception. But the reasoning of the Judge, and the rulings upon the first two exceptions can lead to no other conclusion, than one in favor of the presumption of mental capacity, after the factum or execution of a will is admitted, or proved, if put in issue by the pleadings. That the law may be consistent in all its parts, the true doctrine must be, that whenever satisfactory proof establishes the doing of an act, especially if it conform to the formalities required by law, it must be considered, in the absence of opposing proof, as done by a reasonable and sane man. The very general language used in Cramer vs. Crumbaugh, 3 Md. Rep., 501, cannot be taken to control and alter this principle. It is true that it is said in that casé, upon the authority of Mr. Baron Parke, 1 Curteis, 637, (6 Eng. Eccl. Rep., 417,) that the party propounding a will, has . the onus imposed on him and he must discharge it “by proof of capacity and the fact of execution.” But the quo modo of proof must be in harmony with other recognised rules and principles. If capacity be established by evidence of a fact from which it is to be presumed,- “proof of capacity” has in reality been given; and the onus cast upon the party propounding a will. is discharged by proof of execution, because that being proved,, the presumption of capacity folloivs. Believing, after a very careful examination, that we are correct in our view of the law upon this question, we are of opinion that there was no error in rejecting the eleventh prayer of the caveators, and in granting the second prayer of the caveatees.

(Decided 5th February, 1868.)

The remaining questions, arising upon the various prayers of the caveatees, which have been excepted to, are readily disposed of by reference to adjudicated cases. The first prayer is fully sustained by the case of Mason vs. Harrison, 5 Har. & Johns., 480, and conforms to the views already expressed upon the modification of the caveators’ fifth prayer. The fourth, sixth, seventh, eleventh, twelfth and thirteenth prayers, as applicable to the evidence in the record of this case, contain familiar principles of law,'so firmly established by numerous and uniform decisions, that it is now too late to call them into question. 1 Hagg., 577; 3 Ser. & Rawle, 269; 3 Wharton, 137; 22 Wendell, 540; 1 Green’s Ch. R., 88; 5 Johns., Ch. R., 159; 5 G. & J., 301; 3 Md. Rep., 500; 20 Md. Rep., 387; 1 Wm. Black, 365, 416; 2 Hagg., 211, 558.

Rulings of the Court below affirmed.