Whisner v. Whisner

• Court: Maryland Supreme Court
• Writing for the Court: BRISCOE, J.
• Citation: Whisner v. Whisner, 122 Md. 195, 89 A. 393 (Md. 1914)
• Decision Date: 13 January 1914
• Parties: WHISNER v. WHISNER et al.

89 A. 393

122 Md. 195

WHISNER v. WHISNER et al.

Court of Appeals of Maryland

January 13, 1914

Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.

"To be officially reported."

Will contest by Allen H. Whisner against Charles N. Whisner, as executor of J. Start Whisner, deceased, and others. From a decree admitting the will to probate, contestant appeals. Affirmed.

George A. Pearre and Ferdinand Williams, both of Cumberland, for appellant.

Austin A. Wilson and Albert A. Doub, both of Cumberland, for appellees.

BRISCOE J.

The record in this case brings up for review the rulings of the circuit court for Allegany county in the course of a trial on a caveat to the will of J. Start Whisner, who died in the city of Cumberland, on the 12th day of January, 1912. Under the caveat a single issue was sent for trial to the circuit court from the orphans' court, and this issue was "whether the paper writing dated the 7th day of December, 1911, purporting to be the last will and testament of John Start Whisner, was executed by him when he was of sound and disposing mind and capable of executing a valid deed or contract." Mr. Whisner was between 50 and 55 years of age at the time of his death, was unmarried, but left three brothers and one sister, as next of kin and his only heirs at law. The plaintiff below and appellant here is a brother, and the defendants below, and appellees here, are brothers and a sister. At the trial of the case, 10 exceptions were reserved by the plaintiff to the rulings of the court, nine of which relate to rulings upon testimony and the tenth to the ruling on the prayers. The action of the court, on these rulings forms the subject of this appeal. It appears from the tenth exception that the court below granted the plaintiff's second, third, and fourth prayers, but rejected his first. The defendants' second, third, and fourth prayers were granted, but their first, fifth, sixth and seventh were rejected. The court gave an instruction if its own, and it is stated that it was granted in place of the defendants' second and seventh prayers. The plaintiff thereupon excepted to the action of the court in rejecting the plaintiff's first prayer, and to the granting of the defendants' second, third, and fourth prayers, and the instruction given by the court in lieu of the defendants' second and seventh prayers. The tenth exception therefore embraces the rulings of the court upon the granted and rejected instructions, as set out therein. The answer of the jury upon the single issue of testamentary capacity submitted to them was in favor of the defendants, that is, that the testator's last will and testament dated the 7th day of December, 1911, was executed by him when he was of sound and disposing mind, and that at the time of its execution he was capable of executing a valid deed or contract.

The real controversy here then relates exclusively to the rulings of the trial court upon the testimony and the prayers, as embraced in the exceptions, set out in the record.

We will first consider the rulings of the court upon the testimony.

The first exception was to the refusal of the court to permit the caveator to offer in evidence "a paper spoken of as a farm account." This farm account does not appear in the record, and it would be impossible for us to determine whether the plaintiff was injured by its rejection, and whether it reflected upon the issue. The account itself, or so much of it as was necessary to enable the court to ascertain its legal effect, should have been incorporated in the record; and, as this was not done, the ruling of the court on this exception is not before us for review. 2 Poe on Pleading & Practice, 314; Wilson v. Merryman, 48 Md. 328; Oldenburg v. Dorsey, 102 Md. 176, 62 A. 576, 5 Ann. Cas. 841.

The second, third, and fifth exceptions embrace the rulings of the court, in refusing to permit the witness Allen H. Whisner, the caveator, to express his opinion as to the mental condition and the testamentary capacity of the testator on the 7th day of December, 1911, the date of the execution of the will. The identical question as embraced in these three exceptions was propounded to the witness in the course of his examination and re-examination, and is as follows: "Will you state whether in your opinion J. Start Whisner, at the time of the execution of his will, offered in evidence, dated the 7th of December, 1911, was of sound disposing mind, memory, and understanding, and capable of making a valid deed or contract?" While it is true this question was propounded to the witness at various stages of his examination, both in chief and on redirect, after cross-examination on the part of the defendants, yet we are unable to find that the witness had disclosed in his entire testimony such facts, and such adequate means of knowledge as qualified him, as a nonexpert witness, to express an opinion as to the mental condition of the testator at the time of the execution of the will. He was not an expert nor an attesting witness to the will, and he did not fall within the rule which allows this class of witnesses to testify as to the mental capacity of a testator without first stating the facts and circumstances on which the opinion was formed.

In the Berry Will Case, 93 Md. 560, 49 A. 401, it is said: "It has been distinctly ruled in this state, and is generally agreed, that mere opinion, unless it be the opinion of the subscribing witnesses to a will, or the opinion of a medical expert, is not competent evidence to prove mental capacity or incapacity." As to a nonexpert witness he may give his opinion. "If he has the means of knowing what that mental condition is, then after disclosing those means, so as to show, both that he possesses them, and that they are adequate, he may state the result, not as opinion, but as knowledge, precisely as he may do when questions of personal identity or of handwriting are involved. *** Facts must be stated so that it may be seen whether the conclusion deduced from them by the witness has any relation to, or can be fairly said to be dependent on, them." This is the undoubted rule as applicable to this class of testimony, and it will be found supported and followed by a long line of cases in this state, both prior and since the Berry Will Case. Waters v. Waters, 35 Md. 542; Brashears v. Orme, 93 Md. 442, 49 A. 620; Watts v. State, 99 Md. 36, 57 A. 542; Kelly v. Kelly, 103 Md. 548, 63 A. 1082; Grill v. O'Dell, 113 Md. 630, 77 A. 984.

As we are of opinion that there was no proper foundation laid to qualify this witness to express an opinion as to the testamentary capacity of the testator at the date of the execution of the will, the objection to the question on all three of the exceptions was properly sustained.

The fourth exception relates to the ruling of the court in allowing a comparison of a will dated August 30, 1908, made by the testator while living in the state of West Virginia with the will here in controversy. The two wills were identical in every respect except in the last will there was a pecuniary legacy of $1,000 to his sister. The evidence shows that the will of 1908 was in the handwriting of the testator, and was adopted and re-executed by the testator on the 7th day of December, 1911, with an additional bequest of $1,000 inserted into it, and with an attesting clause, so as to conform to the laws of Maryland. A part of the will as re-executed was the will of 1908, and in the handwriting of the testator, and the part that was added was typewritten. It is conceded that the testator was of sound and disposing...