Mason v. Poulson

Brent, J.,

delivered the opinion of the Court.

This case involves the establishment of an unexecuted paper, as the last will and testament of John Mason, and is now for the second time brought before this Court upon an appeal from the Superior Court of Baltimore City, to which issues had been sent from the Orphans’ Court of that City upon a caveat there filed by the appellants. A new trial having been directed by this Court, 40 Md., 355, the case was tried a second time in the Superior Court, and the exceptions, taken upon this second trial, present the questions for review upon the present appeal.

After the testimony had been closed, the appellants presented nine prayers. The third, seventh and eighth were granted, the first was withdrawn, and the second and fourth granted with a modification by the Court, and the fifth and ninth refused. The appellee offered six prayers, all of which were granted. To this action of the Court in modifying the second and fourth prayers, in rejecting the fifth and ninth, and in granting the prayers of the appellee, the appellants have excepted. And they also specially except to five of the prayers of the appellee, upon the ground that “they leave questions of law to the jury.”

The second prayer of the appellants asked the Court to instruct the jury, “that they must find for the plaintiffs on the 1st and 7th issues, unless they believe that the said John Mason intended said paper-writing tobe his complete and final last will and testament, without looking to anything further tobe done, in order to perfect it.” This prayer, if granted in the form asked, might well have tended to mislead the jury. The first issue, as was held by this Court upon the former appeal, might in its literal reading be understood to present the question £ £ whether the paper was intended by Mason to operate as his last will and testament without any addition, alteration or alterations,” which would include alterations or additions in mere matters of form not affecting its validity as a will. But it would have been an idle and useless proceeding in the Orphans’ Court to have ordered the trial of an issue of that character, and an equally useless waste of time in the Court of Law to try it. What, it was important for the Orphans’ Court to know, was, whether there was an unexecuted intention to alter it in such particulars as to prevent the paper from being admitted to probate as a will, and the issue must he read and construed as presenting that question to the jury. Certainly the prayer does not confine the attention of the jury to such a question, as is here indicated. Under its plain meaning, they could not well do otherwise than bring in a verdict for the plaintiffs, if they found that Mason intended to do any act whether of form or otherwise in order to perfect the paper — which upon its face is conceded to he imperfect.

It is not signed, it contains no appointment of executors, although by the first item in it, debts and funeral expenses are directed to be paid by executors “hereinafter named,” and in another of the items a blank is left, unimportant it is true, but which no doubt was intended to be filled by some -appropriate word. It is also equally true, that it was the intention of the deceased to have executed a formal will the very day upon which he died. Upon these unquestioned facts, which may apply alone to matters of form and .not reach the substantial question in issue, the jury might have found that Mason did not intend “said paper-writing to be his complete and final last will and testament, without looking to anything further to he done, in order to complete it.” An instruction, which might have led them into such an error, could not have been properly granted, and the Court was therefore right in refusing it. Was there error, in granting it as modified by the Court,— that is by adding the words, “whereby the disposition of his property would have been affected or changed ? ’ ’ This prayer as modified, and the third prayer which was granted, seem to present fairly to the jury both theories of the appellants in regard to the paper in question. ^The one is, that the proof does not establish that it was designed and intended as a final disposition of the property of the alleged testator Mason, and the other, that he did not intend it to be effective until he had appointed and named executors. The twm instructions are not inconsistent, as was contended in the argument. In the first, the jury are instructed, that the plaintiffs are entitled to recover, if Mason looked to anything further to be done whereby the disposition of his property would be affected or changed; and in the second, that they are also entitled to recover if Mason did not intend to leave a will without appointing therein an executor or executors. In either event the verdict was to be rendered for them. It would have been otherwise had the jury been instructed in either event to find for the defendant. This would have been error, and the instructions would have presented a manifest inconsistency. But no such inconsistency exists in directing the jury to find against the alleged will, upon either or both of the grounds stated in the instructions referred to. We cannot see, in view of the proof in the case, that the modification of the Court has put any improper restriction upon the rights of the appellants to recover, or that there is any error in the instruction as granted.

The fourth prayer correctly states the presumption of law to be against the paper in question as a valid- last will and testament, arising from the fact that it appears “ on its face to be imperfect and unsigned.” But a jury is not to be supposed to know the force and effect of presumptions of law, and the Court committed no error by adding, from abundant caution, that siich presumption may be rebutted by proof, and that they, the jury, were to determine from all the facts in the case, whether the paper-writing, although unsigned and imperfect in the beginning, was not finally adopted by Mason “asa sufficient expression of his intent with reference to his will.” It has been argued that the instruction is bad, because it submits a question of law to the jury. There is no special exception taken to it upon this ground, and the question is not therefore before us.

The fifth prayer, intended, as stated in the argument, to call the attention of the jury to the clause in reference to an executor and the presumption arising from it, is covered by the third and fourth instructions, and was therefore properly refused. The third instruction is specially in reference to that clause, and the language of the fourth sufficiently full to include each and every imperfection upon the face of the paper as raising a presumption of law against its validity as a will.

The rejection of the ninth prayer has not been referred to in argument, and we may conclude that it was abandoned. The Court, however, committed no error in refusing it, as it is substantially included in the other instructions granted.

This brings us to the prayers which were granted on behalf of the appellee. In the prayer No. 1, A, the Court instructed the jury “to consider the testimony of the witnesses, Mrs. Baptist, Greorge W. Baptist, Jabez Mason and Watson,'in regard to the statements made to them respectively by the defendant, of conversations which the said Poulson had with the deceased John Mason, and of declarations of the said Mason to the said Poulson, as rebutting testimony to discredit the testimony of said Poulson, and not as testimony-in-chief, to prove such conversations and declarations of said Mason.” Upon the former appeal, it was held by this Court, that the statements and conversations of Poulson could not be testified to by other witnesses as testimony-in-chief. 40 Md., 365. Poulson is now asked, when placed upon the stand as a witness, in regard to conversations held with certain persons, the names, times and places being given, so as to lay the necessary foundation to contradict him. These persons, being afterwards placed upon the stand, testified to statements made by him to them respectively, which he had denied upon his examination, and the question now presented is, whether their testimony is to be received and considered by the jury alone as rebuttting and contradictory evidence to discredit the witness Poulson. Of this we think there can be no doubt. It is true, as has been stated at the argument, that the witness can only be contradicted in reference to matters relevant to the issues. But this rule is a limit upon the extent to which this kind of contradictory evidence may be introduced, and has in no instance been held to authorize such evidence to be treated as anything more than evidence going to discredit the testimony of the witness. Were it otherwise, the result would be the admissibility, in an indirect way, of often tbe loosest and most unreliable hearsay. Nor is this rule changed by the Act of 1864, ch. 104, sec 4. This section of the law does not alter the rules of evidence, except in so far as not to hold a party bound by the proof of the other party to the suit, when placed by him as a witness upon the stand, but he is permitted to rebut it by adverse testimony, or by proof of admissions made by the party so examined. The effect of such proof when offered is' governed by the common law rules of evidence. If the admissions made by the witness arc admissible under them, as testimony-in-chief, they apply to the issues in the case, but if such admissions can only he introduced by way of impeaching the credibility of the witness, they are to he confined alone to that purpose. There is therefore no error in this instruction.

The objection to the other prayers of the appellee, is that they leave questions of law to the jury. It has not been insisted in the argument, that they are in other respects erroneous. The language adopted in most of these prayers, where the words “testamentary intent” are used, is not to he commended. But in looking at the proof, and issues involved in this cause, we do not think the instructions were liable to he misunderstood by the jury, or that any question of law was submitted for their determination. It is true that testamentary intent, technically speaking, involves the true meaning and construction of a will, and is to he gathered from the face of it by the Court alone. But there is no such question presented in the case before us. Here the question is, whether the paper exhibited was intended by John Mason to he a final disposition of his property, and as such should he admitted to probate as his last will and testament? The true construction of the paper was not upon trial, and could not therefore have been submitted to the jury. The language used in these instructions is to he taken in an ordinary sense, and is not to be restricted to its technical meaning. It must be understood, from the circumstances and facts in the case, and the connection in which it is used, as meaning whether John Mason finally expressed by the paper in question, what he intended should be his will and testament, — and-upon the facts submitted to the jury, the instructions could have been understood by them only in that sense. We do not think that these instructions, which in other respects are without error, haye in fact submitted a question of law upon the construction of the paper to the jury, because none such is involved in the case; or that they should be treated as defective, because the language used might admit of such a construction if applied to a different state of facts.

(Decided 23rd June, 1875.)

Finding no error in the rulings of the Court below, they will be affirmed.

Rulings affirmed.