Moore ex rel. Moore v. McDonald

Stone, J., delivered the opinion of the Court. Upon a caveat to the will of Lawrence McDonald, filed by the appellees, issues were framed by the Orphans’ Court of Baltimore City, and sent to the Court of Common Pleas for trial. The first and second of these issues presented the question of the proper execution by the testator, and the legal attestation of the will. The third, the testamentary capacity of the testator, and the fourth, his knowledge of the contents of the will, and the fifth and last issue the question of undue influence. The jury found a verdict in favor of the caveatee, the appellant here, upon all the issues except the fifth and last, and upon that issue they found for the caveators, the appellees here, and the caveatee has brought the case here. — 333 — The case is brought here upon exceptions to some-of the prayers granted or refused, to the admissibility of certain evidence, but principally, if we can judge from the argument of the appellant, upon the question of the legal sufficiency of the evidence to establish the fact of undue influence. By the sixth and last exception, -which we will first' notice, it appears that, “after the close ef the case, and the judgment of the Court upon the prayers, as set forth in the defendant’s fifth bill of exceptions, the defendant, by her counsel, offered to the Court to allow the jury to have the original will in suit and in evidence ; but the Register of Wills of Baltimore City refused to part with the same, and the Court declined the offer, and refused to allow the jury to have said original will, but gave them a certified copy thereof instead,” and the defendant excepted. From this exception it will be seen that the defendant claimed, as a matter of legal right, the privilege of sending into the jury room, by the jury themselves, a paper that had been used as evidence in the case. This would be opposed to the whole theory and practice of our trial by jury. The parties litigant have the clearest right, during the progress of the trial, in the presence of the Court and of the opposite party, to submit to the closest scrutiny of every individual juror, if the suitor so desires, any and every instrument of writing that may have been admitted in evidence in the ease. But his right ends with the trial in the Court room. He has no more right to send by the hands of the jurors themselves into the jury room, a piece of documentary evidence, which he believed important to his case, than he would a living witness. It is not necessary for us to notice the fact set forth in the bill of exception, that the Register of Wills refused to part with the original will, or to enquire whether the Court below was influenced by that refusal to deny the request of the appellant. It is enough for us to say that — 334 — the Court was right in refusing to allow the will to go to the jury room. Had it appeared affirmatively from the bill of exception that both, the caveators and caveatee, had consented that the jury might take the original will, then the action of the Register of Wills would have been a proper subject for our consideration. But we are dealing with a claim of right on the part of the appellant, without the consent of the appellees. A will offered in evidence during the progress of a case, does not differ in many respects from other documentary evidence. By consent of both parties, the Court may allow any such instrument of writing to be taken by the jury to their room. But not as a matter of right. The ruling of the Court on that exception is therefore affirmed. The fifth exception contains the caveatee’s, the appellant here, objections to the granting of the first and second prayers of the caveators, and the refusal of the Court to grant the second, third, eighth, ninth and fourteenth prayers of the caveatee. 'The first prayer of the caveators which was granted, relates wholly to the question of the testamentary capacity of the testator, which was raised by the third issue. As that issue was found for the appellant, and she was not therefore prejudiced by said' prayer, and as no new trial will be awarded, we think it unnecessary to notice that prayer. This prayer, is however sanctioned by Higgins vs. Carlton, 28 Md., 115, and affirmed by this Court. By the second prayer of the caveators, the Court instructed the jury that if they found that the caveatee, or her mother Mrs. McDonald, for the purpose of influencing the testator in making his will, raised prejudices in the mind of the testator against those who would otherwise have' been the natural objects of his bounty, and by contrivance kept him from intercourse with such persons, to the end that those prejudices or impressions which she, — 335 — or they knew he had thus formed to the disadvantage of such relatives, (if the jury so believe,) might not be removed, then the jury are entitled to consider these facts, in connection with other facts in the case, in deciding the issue of undue influence. This hypothetical manner of presenting facts to the jury has no doubt been sanctioned by this Court in Colvin vs. Warford, 20 Md., 357. The Court say in that case that the obvious purpose of those prayers was to remove from the minds of the jury all doubt as to the propriety of considering the facts thus presented in the proposed connection. In effect they simply enunciate the proposition that certain facts which the jury might otherwise have disregarded, constituted evidence, and if there was no error in thus declaring these facts to be evidence, the party was entitled to the instruction. In Layman vs. Convey, 60 Md., 286, this identical prayer was granted by the lower Court, but the question was not passed upon by this Court. How if the hypothetical facts stated in this instruction were found by the jury to exist, they were certainly proper to be considered by the jury, in connection with other facts, in determining their verdict on the issue of undue influence. But we cannot approve the practice of granting prayers of this description. When the evidence has been admitted the fact of its admission gives the jury the right to consider every fact in the case that is proven to their satisfaction. It is not the proper office of the Court to call the attention of the jury to this or that fact, and inform them that they may take it into consideration in making up their verdict. Such instructions coming from the Court, are apt to give undue weight and prominence to the fact thus called to their attention. It is a practice liable to abuse, and to mislead. But while we think the prayer should not have been granted, we do not think the error sufficient to authorize — 336 — a reversal of this judgment. By a reference to the tenth, eleventh, twelfth and thirteenth prayers which were all conceded, the jury were fully instructed, as to the law relating to undue influence, and of what they must he satisfied before they could find a verdict for the caveators on that issue. By these instructions the caveatee obtained as full and favorable a statement of the law, applicable to thé facts of her case, as she was entitled to. Any injury she might have sustained by this prayer standing alone, we think was prevented by the granting of her prayers. Under such circumstances we do not feel authorized on account of this prayer to send the case back for a new trial. The second prayer of the caveatee was properly refused. It announced a mere abstract legal proposition, and might with equal propriety have been granted in any case where the evidence was' circumstantial, as the case at bar. A part of this instruction is taken from the opinion of this Court in Davis vs. Calvert, 5 Gill & John., 269. But we have said in more than one case, that the exact language of this Court used in an opinion in one case, and izicorporated in an instruction in another case, does not necessarily make that instruction correct. The caveatee’s third prayer asked the Court to instruct the jury that what the testator said shortly before his death were his wishes’, could not be regarded by the jury as invalidating his will, if the jury found that at the time of its execution the testator was of sound mind, and not unduly influenced, and that his. said will could not he changed or set aside by word of mouth only. This prayer announced the legal proposition that the declarations of the testator, did not revoke his will, and that a will once duly made by a competent testator, could not be revoked by parol. Of the correctness of this as a legal proposition there can he no doubt. But there was no issue made in the case of the revocation of the will, and the law so asserted was ziot applicable to the issues then — 337 — being tried, but was irrelevant and immaterial thereto, and therefore properly rejected. The caveatee’s fourteenth prayer asked the Court to say to the jury, that there was no legally sufficient evidence before them of the mental incapacity of the testator at the time of the execution of the will, and that therefore their verdict must be for the caveatee on the third issue. This prayer the Court rejected. But the verdict was for the caveatee on that issue, notwithstanding the rejection of the prayer, and the caveatee lost nothing by its rejection. In view of the affirmance of this verdict, we think it entirely unnecessary to decide whether this prayer should, or should not have been rejected. Before we decide upon the caveatee’s eighth and ninth prayers we will examine the caveatee’s exceptions to the testimony, as the eighth and ninth prayers of the caveatee depend, measurably at least, upon whether the Court were right in admitting the evidence she sought to exclude; These exceptions are four in number, and the evidence was offered generally, and was not confined to any one of the issues, and the exceptions are also general, and do not point out the issues to which the evidence objected to was supposed to be inapplicable. It was objected to for any purpose, and if it, or any of it was admissible upon any issue, then the Court was right in allowing it to go to the jury. The rule is most emphatically laid down in Budd vs. Brooke, et al., 3 Gill, 198, that where exceptions are taken to the admission of testimony in mass, and some of it is admissible, the Court will not reject it. Some of the exceptions are open to this objection. But the fourth exception presents the question which seems to be the ground of all the exceptions, and in deciding that we virtually decide them all. The caveators in these exceptions offered to prove that the testator in the year 1874 promised his daughter Sarah} — 338 — then on her death bed, that he would take care of, and provide for her three children. That this promise was made with much solemnity, hut never performed by the testator. The caveators gave evidence tending to prove that the caveatee prevented the testator from taking them home or supporting them. It has been argued that this promise to Sarah having been made really twelve years before the execution of the will, could shed no light on the condition of the testator at the time of its execution. That if he then did intend to support these children, he may have changed his mind, and that even if his wife or the caveatee did object, it was merely a family dispute, &c. In Griffith vs. Diffenderffer, 50 Md., 466, this Court said that the declarations of the testatrix, as to her testamentary intentions made some months before the execution of the will, were admissible. That such evidence might be offered either to rebut the charge of fraud and undue influence, by showing that the will was consistent with the long cherished wishes of the testator, or that it was contrary to well settled convictions of what he thought was a just and proper disposition of his property. It is very clear from this, that the declarations of a testator made before the execution of his will, may he given in evidence by either the caveator or caveatee ; by the former in order to show that the will is not in accordance with his expressed wishes, and by the latter to show that it is. So in Davis vs. Calvert, 5 Gill & J., 269, the Court says that the incapacity of the testator maybe established by the' proof of the conversations or actions, or declarations of the testator, or all of them taken together; also the contents of the will, the manner of its execution, the nature and extent of the property of the testator ; his family and connections; their condition and relative situation to him; the terms upon which he stood with them ; and — 339 — the claims of particular individuals, are all proper to he shown to the jury upon the question of incapacity. How these declarations of the testator made to his own daughter, and in reference to his grandchildren, certainly showed the terms upon which he then stood to them, and that these terms were friendly. Such declarations and expressions if made a short time before the execution of the will, would undoubtedly have been admissible. But there has not been, and cannot be, any precise time before the execution of the will to which such declarations can he limited. If the testator changed his mind from other causes than mental incapacity or undue influence, it could he shown by the caveatee ; if from incapacfly or undue influence, it is on the caveator to show it. Tn Davis vs. Calvert an inquiry as to the paternity of children was allowed to be gone into, and which inquiry covered a period of fifteen years, and we can see no good reason why the terms upon which the testator stood towards his daughter Sarah, and her children, may not be shown for a period of twelve years before the execution of the will. Such evidence is only admissible to show the terms upon which he, the testator, then stood with them. The caveatee was right in his contention, and as the Court told the jury in the caveatee’s thirteenth granted prayer, that the promises made to Sarah were not binding on the testator, and must be wholly disregarded by the jury if they found that at the time of the execution of the will the testator was of sound and disposing mind, and not unduly influenced in making it. Undue influence is generally proved by a number of facts, each one of which standing alone may be of little weight, but taken collectively may satisfy a rational mind of its existence. “ Where ” says the Court in Davis vs. Calvert, “'the matter in issue depends upon a variety of facts and circumstances, to he proved in different ways, and by different — 340 — witnesses, the whole of which cannot always be presented’ to the Court at one view, the relevancy of any one of which standing alone as-a mere isolated fact, may not clearly appear, and could only be shown by a disclosure of the whole in proof; and yet the rejection of it, have the effect to destroy the force of all the rest, when the whole taken together' would he conclusive of the question. And when it does not clearly appear a priori, that a fact offered to be proved, is collateral and irrelevant, there is generally less mischief to be done or apprehended by admitting it, though it should afterwards turn out to be merely collateral, than by the rejection.” Applying these principles to-the case before us, it is very apparent that the caveatorsmight if they could,- show that the good feeling towards his daughter manifested by his declarations, was interrupted by the caveatee, or others for their own purposes, and that this interruption continued from the time of the exhibition of the good feeling, (twelve years before) down to-the making of the will. The last and most difficult question in this case is the one raised by the eighth and ninth prayers of the caveatee, upon the legal sufficiency of the evidence to supp.ort the issue of undue influence. It has been said in more than one case by this Court, that if the facts proved are such that a rational mind might, in reason and fairness, from them draw the conclusion sought, it is the duty of the Court to submit the case-to the jury. It is the undoubted province of the jury to decide questions of fact, and as the existence of undue influence at the time of the execution of the will, is a question of fact, if we conclude that from all the caveators’ evidence in the case a rational mind might in reason- and fairness draw the conclusion that undue influence did exist at the time this will was executed, then this verdict must stand. The great difficulty the Court h,as in questions of this sort, is to discriminate between the opinion of the Court — 341 — upon the matter in issue, and the legal sufficiency of the evidence. The Court may think the jury erred in their finding, but may still think a rational mind in reason and fairness, might have come to the conclusion that the jury did. (Decided 6th January, 1888.) Another principle we must keep constantly in view, and that is, we must take the plaintiff’s evidence and assume its absolute verity. However great may be the preponderance of the testimony of the defendant, we must leave that to be weighed by the jury. The weight of ■evidence is one thing, and its legal sufficiency a different matter. In Stirling vs. Stirling, 64 Md., 138, we said that in cases involving the legal sufficiency of evidence, in the main, the Court would content itself with announcing its conclusion, without a recapitulation of the evidence. We see no good reason to depart from that rule in this case. No two cases are precisely alike, and we can see no good purpose to be accomplished in detailing the whole of-the plaintiff’s proof. It is enough to say that upon the examination of the caveators’ evidence alone, and assuming its verity, we think there is enough in it to justify the Court in submitting the question of undue influence to a jury, and the rulings must be affirmed and the cause remanded. Rulings affirmed, and cause remanded.