Labofish v. Berman, 5462.

Citation60 App. DC 397,55 F.2d 1022
Decision Date18 January 1932
Docket NumberNo. 5462.,5462.
PartiesLABOFISH v. BERMAN et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

P. H. Marshall and R. E. Wellford, both of Washington, D. C., for appellant.

James B. Flynn and S. J. L'Hommedieu, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Benjamin Berman died June 21, 1929, in the sixty-fourth year of his age. Some fifteen months prior to his death he executed a will in which he devised and bequeathed an estate, estimated to be worth between forty and fifty thousand dollars, to appellant, an attorney at law, in trust to apply the income to the maintenance and support of his widow — who at the time of the execution of his will and also at the time of his death was hopelessly insane — the estate to pass after the death of the widow to five Jewish charities. Testator left surviving him two sons and two daughters whom, in his will, he describes as "adult beings, physically and mentally fit, and capable of providing for themselves." Article five of the will is devoted to a severe denunciation of the conduct of the children to the testator and his wife. It says: "They have heaped abuse upon their parents by their incivility, and in numerous ways and by divers means have ill-treated, insulted, and dishonored them. They have failed to accord to their father and mother the respect and veneration that was their due. They have hurt and injured * * * their disordered and ailing mother and have denounced and villified their aged father. * * * By all their several ways and means they have broken my health and my spirit, and it is meet and proper that I should provide for them from my bounty after my demise in proportion as they have afflicted me during my life. Out of my benevolence, therefore, I give and bequeath unto each of my aforesaid sons and daughters the sum of One Dollar, to the end that they may the better and the longer keep in mind and remembrance their many transgressions and misdoings."

Testator was an illiterate, and the language quoted is undoubtedly that of the scrivener of the will, and if the half of it is true, the disinheritance of the sons and daughters would be understandable, for, while in the deep affection of the parent much is condoned, human nature has not yet reached that height where the utter neglect and disregard of the admonition of the Fifth Commandment is ordinarily encouraged with reward. But a careful examination of the evidence in the record fails to disclose a jot or tittle of justification for the bitter condemnation of his children by testator, while, on the contrary, all four children describe their father as of poor health, subject to fainting attacks, irritable and irascible and unable properly to attend to business, abusing people who came to see him, accusing his mother and wife of robbing him, and his children of trying to poison him, cursing his mother on her deathbed and at her funeral, and, during her burial, threatening to kill himself; and themselves as dutiful and helpful and working in his store for little or no pay. In addition, ten other witnesses from the neighborhood expressed the opinion testator was of unsound mind and unable to make a will. In this state of the record it is clear the conclusion reached by the jury that testator did not possess testamentary capacity at the time of making the will is supported by all the evidence and is clearly right.

But it is insisted on the part of the executor that the court below erred in three respects: First, in permitting contestants to introduce in evidence a copy of the death certificate on file in the Bureau of Vital Statistics in the city of Washington; second, in not permitting on cross-examination a hypothetical question asked the witness, Dr. Murphy; third, in refusing to permit the physisian who attended testator at the time of his death to express an opinion as to his mental condition. We think none of these exceptions is well taken.

Congress, by Act June 23, 1874, 18 Stat. 283, c. 490, as amended by Act June 11, 1878, 20 Stat. 107, § 8 (D. C. Code 1929, tit. 20, § 982), made it the duty of the health officer of the District of Columbia "to enforce regulations to secure a full and correct record of vital statistics, including the registration of deaths and the interment of the dead." By Act April 24, 1880, 21 Stat. 305, § 2 (D. C. Code 1929, tit. 20, § 991), it validated the ordinances of the Board of Health of the District of Columbia, and by Act August 7, 1894, 28 Stat. 257 (D. C. Code 1929, tit. 20, § 992), declared that the same should "have the same force and effect within the District of Columbia as if enacted by Congress in the first instance."

One of these ordinances made it the duty of the board of health, whenever a person should die in the district, to require of the attending physician "to furnish and deliver to the undertaker or other person superintending the burial of said deceased person, a certificate, duly filed, setting forth, as far as the same may be...

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11 cases
  • MURPHY v. McCLOUD
    • United States
    • Court of Appeals of Columbia District
    • December 1, 1994
    ...recognized as public records, and, as such, were admissible in evidence for certain purposes. 24. See also Labofish v. Berman, 60 App.D.C. 397, 399, 55 F.2d 1022, 1024 (1932), in which the court held that death certificates "may be offered in evidence for the purpose of proving, prima facie......
  • In re Estate of Wilson
    • United States
    • Court of Appeals of Columbia District
    • May 29, 1980
    ...so lacks the power to waive the privilege. McCartney v. Holmquist, 70 App.D.C. 334, 106 F.2d 855 (1939). See also Labofish v. Berman, 60 App.D.C. 397, 55 F.2d 1022 (1932); Hutchins v. Hutchins, supra. However, an executor de jure is the decedent's "legal representative" and is entitled to w......
  • Thompson v. Smith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 27, 1939
    ...v. Hutchins, 1919, 48 App.D.C. 495; Stafford v. American Security & Trust Co., 1931, 60 App.D.C. 380, 55 F.2d 542; Labofish v. Berman, 1932, 60 App.D.C. 397, 55 F.2d 1022; Westover v. Aetna Life Ins. Co., 1885, 99 N.Y. 56, 1 N.E. 104, 52 Am.Rep. 1; Reinhan v. Dennin, 1886, 103 N.Y. 573, 9 N......
  • Bowman v. Redding & Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 16, 1971
    ...42 App.D.C. 146 (1914); see also New York Life Ins. Co. v. Miller, 65 App.D.C. 129, 81 F.2d 263 (1935). However, in Labofish v. Berman, 60 App.D.C. 397, 55 F.2d 1022 (1932), we did attach significance to the fact that Congress has made death certificates public records and we said, "We thin......
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