51 A. 398 (Md. 1902), Jones v. Collins

Citation:51 A. 398, 94 Md. 403
Opinion Judge:PEARCE, J.
Party Name:JONES v. COLLINS et al.
Attorney:Melvin & Handy, for appellant. Collins & Jones, for appellees.
Judge Panel:Pearce, J., dissenting in part. Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE, SCHMUCKER, and JONES, JJ.
Case Date:January 17, 1902
Court:Court of Appeals of Maryland

Page 398

51 A. 398 (Md. 1902)

94 Md. 403



COLLINS et al.

Court of Appeals of Maryland

January 17, 1902

Appeal from circuit court, Worcester county; Henry Page and Henry Lloyd, Judges.

Application by Oliver D. Collins and another for the probate of the will of Benjamin I. Jones, to which Benjamin S. Jones files a caveat. From a judgment in favor of the caveatees, the caveator appeals. Affirmed.

Pearce, J., dissenting in part.


Melvin & Handy, for appellant.

Collins & Jones, for appellees.


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 7, 1900, purporting to be his last will and testament, and offered to the orphans' court of Worcester county for probate?"

Page 399

The second inquired whether he was induced to make and execute said paper writing by fraud and undue influence practiced 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 $1, and to his wife $700, 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 25 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) to put up 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 caveator's 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 Gill & J. 269, 25 Am.Dec. 282, and in Colvin 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 testator's capacity." In Higgins v. Carlton, 28 Md. 115, 92 Am.Dec. 666, 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." In Whitney v. Twombly, 136 Mass....

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