Higgins v. Carlton

• Decision Date: 05 February 1868
• Citation: 28 Md. 115
• Parties: JOSHUA C. HIGGINS, and others, v. HENRY L. CARLTON and JOHN B. SCAGGS.
• Court: Maryland Court of Appeals

28 Md. 115

JOSHUA C. HIGGINS, and others, v. HENRY L. CARLTON and JOHN B. SCAGGS.

Court of Appeals of Maryland

February 5, 1868

APPEAL from the Circuit Court for Anne Arundel County.

The will of John Higgins, of Prince George's county, having been offered for probate in the office of the Register of Wills of said county, the appellants on the 9th of July 1866, filed a petition and caveat, which the appellees' executors appointed by said will, answered and upon the prayer of the appellants, the Orphan's Court of Prince George's county, sent six issues to the Circuit Court for said county, for trial. The issues involved the questions: first, of execution and publication; second, of the testamentary capacity of the testator; third, of undue influence, importunities and persuasions; fourth, whether the signature of the said John Higgins was his own voluntary act to which he was induced, with a knowledge of the contents of the paper, and without the exercise of undue influence fifth, whether the execution of the said paper was procured by fraud or misrepresentation? sixth, whether the said Higgins, at the time the said paper writing was executed, was capable of knowing its contents, and fully comprehending its import?

Subsequently at the instance of the appellees, the case was removed to the Circuit Court for Anne Arundel county, and upon trial had, the jury found for the caveatees on all the issues.

1 st Exception: At the trial, the factum of the will being put in issue, and the Court having decided that it was incumbent on the caveatees to prove the due execution thereof, the subscribing witnesses to said paper writing were examined: N. C. Stephen, one of the subscribing witnesses, testified that he "drew the will from a memorandum placed in his hands by Mrs. Higgins, the wife of the testator, at the suggestion of Mr. Higgins, he having applied to her for it." Upon cross-examination of this witness, he was asked to produce the memorandum referred to, which he did, and stated that there was a difference between the residuary clause in the will and the memorandum, and that in writing the will he did not pursue the memorandum exclusively. The witness was then asked, "if the memorandum differed from the will in any other respects?" To this question the caveatees objected, and the Court, (BERRY, J.,) sustained the objection, and refused to permit the same to be answered; and to this ruling the caveators excepted.

2 d Exception: The same witness having been asked, "why he made in the will the change from the memorandum, in reference to the devise of the land to Mrs. Ferrall," said, "he did not consult with the testator about the Ferrall land, or talk with him upon the subject, and that he, the witness, put it in the will." Being desirous to explain, he was proceeding to give his reasons for making this alteration, when the caveators objected, but the Court overruled the objection, and permitted the witness to assign his reasons. To this ruling the caveators excepted.

3 d Exception: Omitted, inasmuch as the Court declined to express any opinion upon the question there presented.

4 th Exception: The caveators upon cross-examination proved by Henry T. Scott, one of the subscribing witnesses to the will, that the testator did not ask him to attest the will; when the witness arrived the testator was a dying man, he died about half past ten by the clock, his voice was very tremulous when he signed the will; witness could not remember who asked him to come in to attest the will, but was positive that the testator did not ask any of the witnesses to subscribe their names. The witness was then asked if he heard the testimony of John T. Ferrall, as to the conversation of the testator when he, the witness, was not present in the room, but had been there just before, and was in and out of the room from time to time? to which he replied, yes. And he was then asked, "whether at the time mentioned by Ferrall, the said testator had the physical capacity to hold the conversation detailed by him?" The caveatees objected to the witness answering the said question, and the Court sustained the objection, and refused to permit the question to be answered; to this ruling of the Court the caveators excepted.

5 th Exception: Abandoned.

6 th Exception: The caveators asked Mrs. Higgins "if she had ever had a conversation with the witness Scott, in reference to the memorandum from which the will was drawn?" and being answered no, then proposed to ask Scott "whether he had ever had a conversation with Mrs. Higgins in reference to said memorandum, on the day of the execution of the will, and whether she did not say that the paper was prepared by her without the knowledge of the testator, and without his having read it or heard it read?" To this question the caveatees objected, and the Court refused to permit it to be answered. To this ruling the caveators excepted.

7 th Exception: Dr. Belt, a witness on the part of the caveatees, being asked, upon cross-examination by the caveators, upon what portion of the testimony of the witness Scott, he founded his opinion of Higgins' capacity? said it was from Scott's statement that Mr. Higgins had talked to the last, but he was unable to repeat any conversation detailed by the witness Scott, upon which he had based his opinion. The caveators as rebutting evidence, asked Scott the following question: Dr. Belt, in his examination, having stated that he predicated his opinion of Mr. Higgins' capacity to execute a valid deed or contract, upon what he saw or knew of him, and in part upon your evidence, now state whether or not in said evidence you stated that Mr. Higgins was irrational and wandering in his conversations or otherwise? To this question the caveatees objected, and the Court sustained the objection, and refused to permit the witness to answer it; to this ruling of the Court, the caveators objected.

8 th Exception: Upon all the evidence in the cause, the caveators offered a series of prayers, thirteen in number. The Court granted the first, second, fourth, sixth, seventh, eighth, ninth, tenth, twelfth and thirteenth. The third prayer was as follows: "Unless the jury shall believe from the evidence that the signature or mark of John Higgins to said paper, was attested and subscribed by three or four credible witnesses in his presence, they must find on the first issue for the caveators;" which was granted with the following modification: "And that the meaning of the language, 'credible witnesses,' is that at the time of the execution of the will, the subscribing witnesses were not incompetent to testify by reason of infancy, insanity or mental imbecility, or any other cause." The fifth prayer was as follows: "Unless the jury believe from the evidence, that the said paper writing was attested by the subscribing witnesses at the request of the said John Higgins, they must find on the first issue for the caveators;" which was granted with the following modification: "But it is a sufficient request on the part of the testator, if the jury find from the evidence aforesaid, that he sent for the witness Stephen, to write his will, and after the same was read to, and approved by him, he was asked by said Stephen, if he wished to execute the said will, at that time or next day, and replied the sooner the better, and desired them to wait for Mr. Gallant, as a witness, as he was younger than Mr. Carroll, and if the jury further find that, after the testator had made his mark, in the manner stated in the evidence, he was asked by the said Stephen if he desired him, Mr. Gallant, and Mr. Scott, all of whom were then present to attest his mark or signature to said paper, and that he said he did, or assented by a nod, and thereupon the said named parties did attest the same in his presence." The eleventh prayer which was refused by the Court was as follows: "The onus probandi is on the caveatees to establish the fact of the execution of the paper writing, and also that the said John Higgins was at the time of the execution of the said paper writing, of sound and disposing mind and capable of making a valid deed or contract." To the rejection of the eleventh prayer, and to the modification of the third and fifth prayers, by the Court, the caveators excepted.

9 th Exception: The caveatees then asked the Court to grant the following prayers:

1st. If the jury believe from the evidence that the said John Higgins affixed his mark to the paper writing, propounded as his last will, and that in doing so, he was assisted by the witness Stephen, by the request, or with the assent of said Higgins, and that thereupon the said Higgins was asked if he acknowledged the same to be his mark, or words to that effect, to which he assented, and that thereupon he was asked by the said Stephen, whether he wished the witnesses Gallant, Scott and himself to attest it as his last will and testament, or words to that effect, to which he assented, and thereupon said witnesses did attest the same, by subscribing their names thereto, by his request, in his presence, and in the presence of each other, said paper writing was then delivered by said Stephen to the testator, and that the testator then handed said paper writing to his wife, and requested her to take care of it; then the said paper writing was duly executed, provided the jury shall further find that at such execution, the testator was of sound and disposing mind, and mentally capable of executing a valid deed or contract.

2d. That the presumption of law is in favor of the sanity of the testator, and of his capacity to make a will, and the burden of proof is on the caveators to establish a want of testamentary capacity, in order to justify the jury in setting aside the will on...