Grill v. O'Dell
| Decision Date | 23 June 1910 |
| Citation | 77 A. 984,113 Md. 625 |
| Parties | GRILL v. O'DELL. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Harford County; Geo. L. Van Bibber Judge.
Action by Lillie R. O'Dell for the revocation of the probate of the will of Annie E. Ruby, deceased, and the letters testamentary issued to John H. Grill, as executor and caveatee. From a judgment for the caveator, caveatee appeals. Affirmed.
See also, 111 Md. 64, 73 A. 876.
Argued before BOYD, C.J., and PEARCE, BURKE, THOMAS, and URNER, JJ.
Osborne I. Yellott and Thomas G. Hayes, for appellant.
Stevenson A. Williams and Z. Howard Isaac, for appellee.
In the record upon this appeal there are 71 bills of exceptions. They embody the rulings of the court below in the trial of issues relating to the validity of a will. As the numerous questions presented must all be reviewed, it will be necessary to state and discuss the individual exceptions as concisely as possible. The will in controversy is that of Annie E. Ruby, late of Baltimore county. It was executed on July 27, 1908, and the testatrix died on February 4, 1909, at the age of about 76 years. She was the widow of William H Ruby, who died in 1905. There was but one child of the testatrix living at the execution of the will. This was a daughter, who was married to George O'Dell, prior to her father's death. After her marriage she resided with her husband at the home of her parents in compliance with their request. The estate passing under the will consists of savings bank deposits amounting to about $14,500. This fund had been accumulated by the testatrix with great patience and secrecy during a period of about 40 years. The deposits were made with money surreptitiously taken from her husband's pockets or appropriated from allowances made by him for the household expenses. They were designed as a future provision for the daughter; but she was kept in ignorance of their existence. The will was prepared some time in June, 1908, by John H. Grill, an attorney at law, who is named as the executor and who is the caveatee and appellant in the present record. After certain bequests in the will in favor of other persons, the residuary estate is bequeathed to Mr. Grill in trust for Mrs. O'Dell during life; her interest to become absolute if she should survive her husband, otherwise to go in remainder to the heirs and personal representatives of the deceased husband of the testatrix. A caveat was filed by Mrs. O'Dell to the will after it had been probated and letters testamentary had been issued, and this court has heretofore had occasion to consider an application for the revocation of the letters pending the litigation over the will. Grill v. O'Dell, 111 Md. 64, 73 A. 876. There were four issues formulated and transmitted to the circuit court for trial. Two of these submitted the questions as to whether the will had been executed in accordance with the legal formalities, and whether it had been procured by undue influence. The verdict upon these two issues was in favor of the defendant under the instructions of the court. The two remaining issues, relating to the question of testamentary capacity, and knowledge by the testatrix of the contents of the will, were determined by the jury in favor of the caveator. Seventy of the exceptions taken by the caveatee in the course of the trial deal with rulings as to the admissibility of evidence, and one is concerned with the action of the court below upon the prayers.
The first and second exceptions were to the allowance of questions propounded to William M. Isaac, and which elicited from him the information that 15 or 20 years ago Mrs. Ruby, in a conversation with her husband, admitted having taken and saved some of his money, but stated that, if she had not done so, their daughter would be a beggar. It was objected that these declarations were too remote from the execution of the will to be relevant. It has already been noted that the estate of the testatrix was the result of a process of hoarding which began many years before her death and before the time of the declarations referred to by the witness, and the evidence thus offered to show that the purpose of the testatrix in accumulating the money was to provide for her daughter was clearly competent.
In the third bill of exceptions it appears that the same witness, after testifying that he had known Mrs. Ruby for about 40 years, that he had, at her request, administered upon her husband's estate, and that in those days she generally acted upon his advice, proceeded to say that he "could not control her when she went to sell the property." A motion by the caveatee to strike out the expression quoted was overruled by the court. It developed later that the sale to which the witness alluded occurred in 1907 and embraced certain real estate of which Mr. Ruby died seised and in which the testatrix had a dower interest. She was urged by the witness not to sell the properties for less than certain prices, but she sold them for much smaller amounts, giving as her only reason that she needed the money and that she would starve. The statement excepted to added nothing to the effect of the facts, to which the witness testified without objection, and which showed that in reference to this transaction the testatrix, contrary to her previous habit, was not governed by his advice, and there was no error in overruling the motion for its exclusion.
The fourth and fifth exceptions refer to the refusal to strike out from an answer of the same witness the expression, "She got wild," which was used in describing the conduct and speech of the testatrix when the nature of her dower interest in the real estate left by her husband was explained to her, and when she learned that her interest was not absolute, as she supposed, but only for life. It was in this conversation that the witness said: "She got wild and pretty profane, cursing people who made such laws to cheat women out of their rights." It is apparent from the context that the portion of this sentence to which exception is taken referred simply to the violence of the profanity and abuse in which the testatrix indulged, and did not in itself amount to the expression of an opinion as to her sanity. The effect of the testimony would be practically the same if the words objected to were eliminated. We see no error in this ruling.
By the sixth and twenty-fifth exceptions the competency of the opinion expressed by Mr. Isaac as to the testamentary incapacity of Mrs. Ruby is questioned first upon the ground that it is not sufficiently supported, and secondly because it was not directed to the precise date of the will. In addition to the facts to which we have already referred, this witness proved that the testatrix was in ill health when her husband died and afterwards grew weaker all the time, and there was a failure in her memory; that she would "make different statements about the same thing, apparently forgetting what she had said before"; that on July 5, 1908, two days before the execution of the will, he visited the testatrix, who was then confined to bed, and she proposed to give him a bookcase, and upon his declining it she said she would give it to his son Randolph; that he reminded her repeatedly that Randolph was dead, but she persisted in her proposal to make the present to the deceased son. It is apparent that this witness, in the course of his long acquaintance with the testatrix and his business relations with her in connection with the settlement of her husband's estate, had exceptional opportunities for observing and knowing her mental condition. The facts stated by the witness as the basis of his opinion as to the incapacity of the testatrix cannot be held to be legally insufficient to support that conclusion in the light of the previous decisions of this court upon the subject of nonexpert testimony in cases of this character. Brooke v. Townsend, 7 Gill, 28; Crockett v. Davis, 81 Md. 151, 31 A. 710; Waters v. Waters, 35 Md. 542; Brashears v. Orme, 93 Md. 450, 49 A. 620; Watts v. State, 99 Md. 36, 57 A. 542; Berry Will Case, 93 Md. 580, 49 A. 401; Berry v. Safe Deposit Co., 96 Md. 45, 53 A. 720. It is well settled that, if a witness has the means of knowing a testator's mental condition, "then after disclosing those means, so as to show both that he possesses them and that they are adequate, he may state the result." The Berry Will Case, 93 Md. 580, 49 A. 408.
The second objection to this testimony is more serious, because being directed to the proof of incapacity, it is in apparent conflict with the well-settled rule that the opinion must be confined to the mental condition of the testatrix at the time of the execution of the will. Gesell v. Baugher, 100 Md. 682, 60 A. 481; Brashears v. Orme, 93 Md. 448, 49 A. 620; Jones v. Collins, 94 Md. 410, 51 A. 398; Kelly v. Kelly, 103 Md. 553, 63 A. 1082; Robinson v. Jones, 105 Md. 69, 65 A. 814; Davis v. Calvert, 5 Gill & J. 300, 25 Am. Dec. 282.
It appears from the testimony of the witness that his last interview with the testatrix occurred on the afternoon of Sunday, July 5, 1908, and his opinion was asked and given as to her mental capacity at or about that date. The will was executed two days later, and the question and opinion should undoubtedly have been directed to that time. Whether this departure from the general rule as to this particular item of proof should, under all the circumstances of the case, justify a reversal and remanding for retrial, is a question we will consider at the conclusion of the opinion.
The seventh exception was taken to the admission of a statement of Mrs. Catherine Fairbanks, a sister of the testatrix, that subsequently to 1888, when she first learned of her sister's savings account,...
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