Johns v. Hodges

• Decision Date: 04 May 1883
• Parties: HENRY V. D. JOHNS v. SARAH W. HODGES and Thomas Harris Hodges, Her Husband, and Others.
• Court: Maryland Court of Appeals

60 Md. 215

HENRY V. D. JOHNS v. SARAH W. HODGES and Thomas Harris Hodges, Her Husband, and Others.

Court of Appeals of Maryland

May 4, 1883

Appeal from the Court of Common Pleas of Baltimore City.

The following issues were raised in the Orphans' Court of Baltimore County, and by said court were directed to be tried in the Circuit Court for said county, between the appellees as plaintiffs, and the appellant as defendant. The issues were afterward removed from the Circuit Court for Baltimore County, to the Court of Common Pleas, where a trial was had:

1st. Whether the paper-writing, dated on the 1st of May, 1878, and purporting to be the last will and testament of John T Johns, was signed by said John T. Johns, or by some other person in his presence, and by his express direction, and attested and subscribed in his presence, by three or four credible witnesses?

2nd. Whether the said paper-writing, dated on the 1st of May 1878, and purporting to be the last will and testament of said John T. Johns, was executed by said John T. Johns, when he was of sound and disposing mind, and capable of executing a valid deed or contract?

3rd. Whether the execution by said John T. Johns, of said paper-writing, bearing date the 1st of May, 1878, and purporting to be the last will of said John T. Johns, was procured by undue influence, exercised and practiced upon said John T. Johns, and constraining his will therein?

4th. Whether the paper-writing, bearing date, on the 11th of June 1878, purporting to be a codicil to the last will of John T Johns, was signed by the said John T. Johns, or by some other person in his presence, and by his express direction, and attested and subscribed in his presence by three or four credible witnesses?

5th. Whether the said paper-writing, bearing date on the 11th of June, 1878, and purporting to be a codicil to the last will and testament of the said John T. Johns, was executed by the said John T. Johns when he was of sound and disposing mind, and capable of executing a valid deed or contract?

6th. Whether the execution of the said paper-writing, bearing date on the 11th of June, 1878, and purporting to be a codicil to the last will and testament of said John T. Johns, was procured by undue influence exercised and practiced upon said John T. Johns, and constraining his will therein?

7th. Whether the paper-writing, bearing date on the 9th of August, 1879, and purporting to be a second codicil to the last will and testament of the said John T. Johns, was signed by the said John T. Johns, or by some other person in his presence, and by his express direction, and attested and subscribed in his presence by three or four credible witnesses?

8th. Whether the said paper-writing, bearing date on the 9th of August, 1879, and purporting to be a second codicil to the last will and testament of the said John T. Johns, was executed by the said John T. Johns when he was of sound and disposing mind, and capable of executing a valid deed or contract?

9th. Whether the execution of the said paper-writing, bearing date on the 9th of August, 1879, and purporting to be a second codicil to the said last will and testament of the said John T. Johns, was procured by undue influence exercised and practiced upon said John T. Johns, and constraining his will therein?

10th. Whether the paper-writing, bearing date on the 20th of November, 1880, purporting to be another last will of said John T. Johns, was signed by said John T. Johns, or by some other person in his presence, and by his express direction, and attested and subscribed in his presence by three or four credible witnesses?

11th. Whether the said paper-writing, bearing date on the 20th of November, 1880, and purporting to be the last will and testament of said John T. Johns, was executed by said John T. Johns when he was of sound and disposing mind, and capable of executing a valid deed or contract?

12th. Whether the said paper-writing, bearing date on the 20th of November, 1880, and purporting to be the last will and testament of said John T. Johns, was procured by undue influence exercised and practiced upon said John T. Johns, and constraining his will therein?

13th. Whether the paper-writing, bearing date on the 18th of December, 1880, and purporting to be a codicil to the last will and testament of John T. Johns, or by some other person in his presence, and by his express dictation, and attested and subscribed in his presence by three or four credible witnesses?

14th. Whether the said paper-writing, bearing date on the 18th of December, 1880, and purporting to be a codicil to the last will and testament of said John T. Johns, was executed by said John T. Johns, when he was of sound and disposing mind, and capable of executing a valid deed or contract?

15th. Whether the execution by said John T. Johns of said paper-writing, bearing date on the 18th of December, 1880, and purporting to be a codicil to the last will and testament of said John T. Johns, was procured by undue influence exercised and practiced upon said John T. Johns, and constraining his will therein?

The jury found on the first, third, fourth, sixth, seventh, ninth, tenth, twelfth, thirteenth and fifteenth issues for the defendant, and on the other issues they found for the plaintiffs.

The ninth prayer of the defendant, to the rejection of which exception was taken and included in his second bill of exceptions, is as follows:

9. That even if the jury believe from the evidence that the testator, John T. Johns, was, for many years, a man of very intemperate habits, and addicted to the excessive use of liquor from time to time, and that when under the influence of liquor, or recovering from its effects, he was incompetent to make a will, and that he suffered from nervousness, melancholy and depression of spirits, and that he had, or that he believed that he had, an hereditary weakness, taint or tendency to insanity, and to intemperance, or to either, and that he entertained a violent antipathy to Horace Love and his family, and to those nearest to said testator in blood, even should the jury believe that such antipathy was for a fancied and unreal cause; and if they believe that he made and destroyed a number of wills before making those involved in this suit; and that he had a suicidal mania, and at last committed suicide; and if they believe all the other facts as to the habits, manners, actions, conversations, opinions and beliefs of said Johns on any and all subjects, and all other facts of any kind, offered in evidence by, or relied upon by the, plaintiffs, as tending to prove that said Johns was of unsound mind; nevertheless, unless the jury believe from all the evidence in the case, that at the several times at which the said Johns executed the wills and the codicils thereto, mentioned in the issues now on trial, he was in fact of unsound mind, and not capable of making a valid deed or contract, then their verdict must be for the defendant on the second, fifth, eighth, eleventh and fourteenth issues.

The case is further stated in the opinion of the court. The defendant appealed.

The cause was argued before Miller, Stone, Alvey, Irving, and Ritchie, JJ.

R. R. Boarman, James A. Buchanan and Charles Marshall, for the appellant.

Stewart Brown, Arthur W. Machen and I. Nevett Steele, for the appellees.

Ritchie J., delivered the opinion of the court.

On the issues submitted to the jury in this case they found for the defendant in those relating to the execution of the several alleged wills and codicils of John T. Johns, and in those presenting the question of undue influence; and found for the plaintiffs as to those presenting the question whether, at the time of their execution, the said Johns was of sound and disposing mind, and capable of executing a valid deed or contract.

After the verdict was rendered, the defendant, discovering that two of the jurors were under twenty-five years of age, on the ground of this want of proper age and his previous ignorance of it, filed a motion for a new trial, and also a petition that the court refuse to certify the verdict of the jury to the Orphans' Court, because void and illegal.

The court refused to grant a new trial and also to grant the petition, which it treated as in the nature of a motion for a new trial upon the ground that the objection was not taken in time.

In the course of its opinion upon the point presented, the court forcibly remarks: "It was competent for the defendant to have made the proper inquiries, and after having satisfied himself on the subject, to have made the objection before the juror was sworn, but this he neglected to do. He waited until he had lost his case. If a party to a suit may omit to make such inquiries until after a verdict has been rendered against him, and may then set it aside on discovery and proof of the existence of a good cause of challenge against any one of the jury, it would introduce an additional element of uncertainty in the administration of justice, and lead in many cases to great and unnecessary delay and expense."

The defendant could not but regard the court's dealing with the petition as a motion for a new trial, as giving it a liberal effect; for if taken to operate as a motion in arrest of judgment, as such a motion must be based on matter appearing in the record, the alleged disqualification not appearing therein, it could not have been entertained.

These applications to the court being an appeal, in effect, to the discretion of the court to grant a new trial, the exercise of the court's discretion is not a subject of review in this tribunal.

If however, the petition not to certify the verdict to the Orphans' Court was a proper proceeding, or could be considered a...