Plummer v. Livesay

• Decision Date: 18 December 1945
• Docket Number: 46.
• Citation: 44 A.2d 919,185 Md. 450
• Parties: PLUMMER v. LIVESAY et al.
• Court: Maryland Court of Appeals

44 A.2d 919

185 Md. 450

PLUMMER v. LIVESAY et al.

No. 46.

Court of Appeals of Maryland

December 18, 1945

Rehearing Denied Jan. 18, 1946.

Appeal from Circuit Court, Harford County; Frederick Lee Cobourn Judge.

Caveat filed by Osborn Ray Livesay and another after probate of the will of Robert L. Livesay, deceased, opposed by Arlie L Plummer, executor of the last will of Robert L. Livesay deceased. The jury returned a verdict in favor of caveators the executor's motion for judgment non obstante veredicto was overruled, and the executor appeals.

Rulings reversed and cause remanded with directions.

W. S. James and Glasgow Archer, both of Bel Air (Archer & Day, of Bel Air, on the brief), for appellant.

J. Wilmer Cronin, of Bel Air (James H. Broumel, of Bel Air, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.

MARBURY Chief Judge.

Appellees, the only son and the grand-daughter (daughter of a deceased daughter of the testator) filed a caveat after probate of the will of Robert L. Livesay in the Orphans Court for Harford County. Eight issues were ordered sent to the Circuit Court for Harford County to be tried by Jury. At the close of the caveators' case, the seventh and eighth issues were withdrawn by agreement, and the Court directed verdicts in favor of the caveatee on all issues except the fourth. The case then proceeded on this issue, which was whether the purported will dated April 22, 1943, was executed by the testator when he was of sound and disposing mind, and capable of executing a valid deed or contract. At the end of the whole case, the caveatee filed a demurrer prayer to the fourth issue, but the Court refused this prayer. The jury brought in a verdict for the caveators, answering 'no' to the fourth issue. Thereafter the caveatee filed a motion N.O.V. which was overruled by the Court. Thereupon an appeal was taken to this Court.

In addition to the question raised by the demurrer prayer to the fourth issue, and by the motion N.O.V., appellants also have a number of exceptions to the rulings of the trial court on evidence. Three of these, which relate to the opinions given by lay witnesses as to the mental incapacity of the testator, have a direct bearing on the question whether the jury should have been instructed to find a verdict for the caveatee on the fourth issue.

The testator was a man of about 75 years of age who had moved to Harford County from North Carolina about 1920 and had purchased a 200 acre farm which he operated until he sold it in February 1943. He died on August 5, 1943, leaving a widow, who had been married to him about fifty years, four living children, a son and three daughters, the latter all married. He had also another daughter, who had died, leaving two children, one of them being one of the caveators. Until the Spring of 1942, the testator had been in good health, but about that time he was taken ill. The nature of his illness is variously described as high blood pressure, stroke, heart disease, and kidney disease. From that time on, his physical health was constantly deteriorating until he eventually died. In February, 1943, he sold the farm, and the following month moved to the farm of his grandson who was the son of the appellant, the executor of his will. The son had married and had a family of his own and was living in New Jersey. The other caveator had been brought up by the testator and his wife after the death of her mother, but had subsequently married. She lived on the farm until it was sold, but after that she did not live with her grandparents, but saw them quite frequently. By the will, one daughter who was the wife of the executor and the mother of the grandson at whose farm the testator was living, was given a bequest of $1000. The only son was given $100, the two grandchildren, who were the children of the deceased daughter, were given $100 each, and all the rest and residue of the estate was given to the three married daughters equally. The will contains a provision that the wife is given nothing because she has released all her interest in the estate for a consideration of $5000 which was paid her on the date of the execution of the will. The testimony shows that the agreement to do this was signed at the same time as the will and that the $5000 was paid to the wife.

If the evidence produced by the caveators was insufficient to permit the case to be considered by the jury, then, of course, all rulings other than those relating to this question, need not be passed upon. We, therefore, pass to the determination of this question, and those rulings on evidence directly related to it. These are those admitting the opinion of lay witnesses as to incapacity.

The admissibility of opinions of lay witnesses as to the mental incapacity of a testator has been considered many times by this Court. The rule is that such opinions, if founded upon facts which would justify reasonable men in holding them, are admissible as being, themselves, facts. In order to render them admissible, therefore, there must be first shown to the Court both the pertinent facts upon which the opinions are based, and the oppotunity the witnesses had of observing the testator. It is not sufficient for a lay witness to show that he, or she, knew the testator for a period of time long enough to observe his conduct. This testimony alone does not justify the admission of the opinion of the witness as to his mental capacity. Such a so-called maked opinion can only be given by the witnesses to the will. All other lay witnesses must show sufficient facts to justify, in some measure, their views. If the underlying facts are not sufficient, then the Court will not permit the opinion to be given.

In the long line of cases establishing this rule, perhaps the best statement of it is to be found in the case of Johnston v Schmidt, 158 Md. 555, 149 A. 283. In that case the Court, speaking through Judge Digges, said, 58 Md. on page 568, 149 A. on page 288: 'When the issue is one of sanity or insanity, or the question of whether the testator was competent or incompetent, over a long period, to execute a will, a lay witness who has had the opportunity, and has become acquainted with the characteristics, habits, actions, conduct, and demeanor, gained through various business transactions over that period, has knowledge, and his statement of the result of such an association is more than an opinion. His observation of and contact with the testator has resulted in fixing an impression in his mind as to the testator's mental capacity as certainly as the handwriting of one may become knowledge to another, or the identity of a person may be testified to as a fact. The many and varied incidents covering a period of years, which result in this knowledge, could not be expected to be given in detail by the witness, and therefore his impression, which this court has said amounts to knowledge, and is not mere opinion, is permitted to be given to the jury on such an issue. Even if in exceptional cases such a witness was able to give all the facts which resulted in the impression equivalent to knowledge, it would be improper to require it because of the time such practice would necessarily involve. In such a case it is only necessary that the witness give what might be termed samples of the facts upon which he bases his conclusion, so that the court and jury may understand that it does not rest upon frivolous and inconsequential occurrences, but has a rational foundation. On the other hand, when the question is not one of sanity or insanity, but is one of incapacity shown to be due to the temporary dethronement of the mental faculties by the administration of opiates, the obscuration resulting from the near approach of death, or the like, witnesses can, without difficulty and without consuming much time, state in detail the facts as they existed, which, when stated, place the jury in equally as advantageous position to determine the capacity of the testator as the witness could possibly be, and therefore the opinion of the witness amounts to no more than saying that if he were on the jury he would find that the testator had capacity or lacked capacity, as the case might be.' In the earlier case of Kerby v. Kerby, 57 Md. 345, the Court said: 'The rule is now well established, that a sufficient foundation must be laid for an opinion, and that non-experts cannot be permitted to give it, without giving the facts and circumstances on which the opinion is based. Waters v. Waters, 35 Md. 531. This is to enable the jury or tribunal on whom devolves the duty of decision to judge of the value of the opinion expressed; for if the opportunity of forming a judgment has not been good, the opinion will be of little or no value.' The same idea is expressed by Judge Delaplaine in the late case of Doyle v. Rody, 180 Md. 471, where, at page 481, 25 A.2d 457, at page 462, he said: 'But a non-expert witness is qualified to express an opinion as to a testator's mental capacity only where the acts and circumstances, of which the witness had personal knowledge, are sufficient to form a basis for the formation of rational opinion. He must state the facts as far as he can and disclose what led to his conclusion. If the whole testimony of the witness fails to show facts sufficient to justify the conclusion reached by him, he should not be permitted to express an opinion.' The same idea was expressed by Judge Grason in the case of Finch v. Lee, Md., 40 A.2d 371, 374, where he said: 'An opinion expressed by one who knew a testator for years and had intimate relations with him in business and social affairs, is in the nature of knowledge, and received in evidence as such. * * * It can be...