Diggs v. Smith

• Decision Date: 12 January 1917
• Docket Number: 92.
• Citation: 99 A. 952,130 Md. 101
• Parties: DIGGS et al. v. SMITH.
• Court: Maryland Court of Appeals

99 A. 952

130 Md. 101

DIGGS et al. v. SMITH.

No. 92.

Court of Appeals of Maryland

January 12, 1917

Appeal from Baltimore Court of Common Pleas; H. Arthur Stump, Judge.

Application by Ethel Claude Cortland Smith for the probate of the will of James Wakefield Cortland, deceased. Claude Maude Diggs and others filed a caveat, and from a judgment for proponent declaring will valid, caveators appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, STOCKBRIDGE, and CONSTABLE, JJ.

Edgar Allan Poe, of Baltimore (J. Kemp Bartlett, L. B. Keene Claggett, C. R. McKenrick, and Robert D. Bartlett, all of Baltimore, on the brief), for appellants.

William L. Marbury and Charles McH. Howard, both of Baltimore, for appellee.

STOCKBRIDGE J.

The present, like the first appeal in this case (128 Md. 394, 97 A. 712), is from the rulings of the trial court upon issues sent from the orphans' court of Baltimore city in regard to the will of James Wakefield Cortland. The issues, two in number, were whether or not the paper writing, purporting to be the last will and testament of James Wakefield Cortland and executed February 11, 1913, was procured by undue influence; and, second, whether the said paper was procured by the exercise of fraud practiced upon Mr. Cortland. Without objection a verdict was rendered in favor of the will upon the first of these issues during the first trial, so that the sole issue presented in the case after the remand by this court was whether the testamentary paper of Mr. Cortland was the result of a fraud which had been practiced upon him.

In the case in 128 Md., the evidence was carefully examined, and it was held that upon the evidence as contained in the record in that case, the jury should have been instructed to return a verdict for the defendant, and the case was sent back for a retrial. The adjudication of that case fully settled the law of the case, so far as the facts then presented were concerned. Thomas v. Doub, 1 Md. 252; Park Land Corp. v. Baltimore,

128 Md. 611, 98 A 153.

All that is necessary upon this appeal is to consider to what extent additional testimony adduced at the second trial should operate to modify the conclusion then reached. A large portion of the brief of the appellants is devoted to what amounts to a reargument of the former case, which was fully considered and disposed of on the former appeal and does not call for further discussion.

Conceding the truth of the facts testified to, by or on behalf of the caveators-and for the purposes of this case they must be taken to be true-there is set out a picture of duplicity double dealing, and deceit upon the part of Ethel Claude Cortland Smith toward her own kindred rarely met with in the reports of adjudicated cases.

The issue in this case, as was pointed out by Judge Constable in the first case, is not, was or was not Mrs. Smith guilty of deliberate deceit, falsehood and fraud? but was the will of James Wakefield Cortland, in its provisions, the result of that deceit?

There are but two witnesses produced at this trial who fairly can be claimed to add anything to the case as made out in the first trial. These are Mrs. Katharine Claude Cortland, the mother of the caveators and caveatee, and Mrs. Harriet A Randolph. The most that can be claimed for the testimony of Mrs. Cortland is that she corroborates, and to some extent strengthens, the evidence given by the caveators of the perfidiousness and duplicity of Ethel. She adds nothing whatever to show that the provisions of the will of Mr. James Wakefield Cortland were the result, direct or indirect, of Ethel's course of conduct. Her testimony, therefore, is not directed to that which is the real issue of this case. In...