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 fifty and fifty-five 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, ten 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 *Page 203 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 of 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 *Page 204 this exception is not before us for review. 2 Poe on Pleadingand Practice 314; Wilson v. Merryman, 48 Md. 328;Oldenburg v. Dorsey, 102 Md. 176.
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 re-direct, 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 non-expert 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, 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 non-expert witness he may give his opinion, if he has the means of knowing what that mental condition is, after disclosing those means, so as to show, both that he *Page 205 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 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 Willcase; Waters v. Waters, 35 Md. 542; Brashears v. Orme,93 Md. 442; Watts v. State, 99 Md. 36; Kelly v. Kelly,103 Md. 548; Grill v. O'Dell, 113 Md. 630.
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 30th, 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 mind at the date of the first will, and as the provisions of the two wills were the same except the pecuniary legacy to his sister, it was competent, we think, for the appellees to show these facts by a comparison of the two wills. We find no error in *Page 206 the ruling upon this exception. Horner v. Buckingham,103 Md. 556.
We find no reversible error in the sixth exception. If the question had been so framed as to apply to and include all the facts and circumstances relating to the execution of the last will it would have been proper upon cross-examination, but it failed to do this and the objection to it, for this reason alone, was properly sustained; Brashears v. Orme, 93 Md. 451.
The testimony of the witness Charles N. Whisner, objected to in the seventh exception, was properly admitted. The witness was qualified to answer the question propounded to him, and under all the authorities his testimony was not mere opinion but knowledge, based upon an adequate statement of facts and was competent evidence in the case. Townshend v. Townsend, 7 Gill, 10;Weems v. Weems, 19 Md. 334; Williams v. Lee, 47 Md. 321.
Nor do we find any reversible error in the rulings of the Court, as contained in the eighth and ninth exceptions. These exceptions were taken to the refusal of the Court, to permit certain questions set out in the exceptions to be asked and answered by Charles N. Whisner, the executor, upon cross-examination.
(1) Q. Now please consider this: If he disposed of a note of two hundred and seventy-five dollars, by giving it to his brother, Allen H. Whisner and at that time the note had already been paid in full, do you think he understood that?
(2) Q. Didn't you yourself on the 23rd day of January, 1912, state in writing, that Mr. J. Start Whisner's will — that the change in Mr. Start Whisner's will was not the only trouble about, but on examination of the same, you found other things that were out of place, and that, therefore, you declined any further responsibility?
Neither of these questions, were proper questions, even upon cross-examination and the objection was properly sustained. The witness was not an expert, and was not competent to answer the first question. It would simply have *Page 207 been a matter of opinion without sufficient and adequate facts or knowledge upon which to base it, superior to that possessed by the jurors themselves.
If the object of the second question was to establish an admission of the executor, it also was inadmissible. No declaration made by an executor before his qualification can be received against him, as the representative of the estate or bind legatees, distributees or creditors. Berry v. Safe DepositCo., 96 Md. 65; Kelly v. Kelly, 103 Md. 554.
Besides this, the writing itself or paper referred to in the question was not produced or shown to have been lost, or a proper foundation laid for contradicting the witness. It is well settled where a previous inconsistent statement has been made in a writing, the witness cannot be cross-examined in reference to it, until the paper has first been shown to him, and he has admitted that he wrote it. Waters v. Waters, 35 Md. 532; 2 Poe'sPleading, sec. 280; 1 Greenleaf on Evidence, sec. 463; 2Elliott on Evidence, sec. 976.
This brings us to the rulings upon the prayers which are set out in the tenth and last exception. We agree with the Court below in its rulings, upon the prayers, and upon all the instructions that were granted.
The plaintiff's first prayer was clearly erroneous and was properly rejected. The prayer not only segregates a portion of the facts, and circumstances of the plaintiff's case, and some of the items of the will, but asked the Court to instruct the jury that if they found these segregated facts, their answer to the issue should be "no." It entirely ignored the theory of the defendants case, and all reference to the testimony on the part of the defendants tending to show testamentary capacity at the date of the execution of the will. Prayers of this kind have frequently been condemned by this Court, as both misleading and improper. McTavish v. Carroll, 7 Md. 352; Adams v.Capron, 21 Md. 186; Winner v. Penniman, 35 Md. 168; Brown v. Ward, 53 Md. 376.
The defendant's second, third and fourth prayers are free from objection and have been approved by this Court. Jones *Page 208 v. Collins, 94 Md. 403; Kelly v. Kelly, 103 Md. 548;Higgins v. Carlton, 28 Md. 118; Tyson v. Tyson,37 Md. 582; Taylor v. Creswell, 45 Md. 422.
We can perceive no serious objection to the legal proposition submitted by the Court's own instruction. It is stated by the appellant in his brief that the instruction was drawn and granted by the Court in the place of the defendant's second and seventh prayers. It is as follows: The jury are instructed that if they find, from the evidence, that J. Start Whisner wrote in his own handwriting, and signed and executed on August 30th, 1908, the paper dated on that date offered in evidence, as and for his last will and testament, and that he had at that time testamentary capacity, as defined in the other prayers in this case, then said paper, although not witnessed, was at that time under the laws of West Virginia, a valid last will and testament, and the jury is further instructed, that if they shall find that the paper offered in evidence as the will of J. Start Whisner, dated December 7, 1911, was executed by him when he was in possession of testamentary capacity as defined in the other prayers, in this case, then the provisions made for his niece and for his parents, in said will of December 7, 1911, are valid and legal dispositions of those portions of the testator's estate.
It is not objected that the plaintiff's case was injured by the Court's granting and submitting this instruction. It was qualified by requiring the jury to consider it, in connection with the other prayers defining testamentary capacity at the date of the execution of the will. We think the instruction is free from the criticism urged against it.
Finding no reversible error in any of the rulings of the Court, it follows that they must be affirmed.
Rulings affirmed. *Page 209