
    IDA F. STOCKSDALE, Administratrix, vs. THOMAS S. JONES and FRANCES S. JONES, His Wife.
    
      Bills of particulars-, must be specific. Offers of additional evidence : opening statements of counsel. Wills: testcumentcury capacityj mental capacity; evidence, before and after.
    
    A bill of particulars ought to be specific, like an account filed under a’speedy judgment, act.
    A bill of particulars for “the money received by the defendants from the plaintiff’s intestate, to wit,” gives no information as to what was the nature of the claim.
    A party can not offer all of his evidence at once, and when he tenders that which is legal and material, it is the duty of the court to receive it, and it can not require him to state in advance what other proof is intended to be offered.
    Sometimes it is incumbent on a party to accompany an offer of evidence with a proffer to follow it up with other evidence; but that is only where it is not itself admissible, and in order to make it so that the other evidence has to be introduced.
    What is said in the opening statement of counsel can not of itself be taken as proffer of additional evidence.
    In will cases where the question is whether the alleged testator was capable of making a valid deed or contract at the time the will offered for probate was executed, evidence of his mental condition before and subsequent to the execution of the paper is admissible for the purpose of reflecting on the question.
    
      In a trial of issues of testamentary capacity, the only proof offered that the testator could not make a valid deed or contract was the record in the Orphans’ Court as to a caveat to the will; the said record threw no light upon the question of the testator’s capacity; and it was held, that a prayer taking the case from the jury presented no error.
    
      Decided June 20th, 1918.
    
    Appeal from the Circuit Court for Carroll County. (Moss, J.)
    The facts are stated in the opinion of the Court.
    The cause was argued before Boyd, C. J., Briscoe, Thomas, Urner, Stockbridge and Constable, JJ.
    
      Guy W. Steele, for the appellant.
    
      Theo. F. Brown and F. Neal Parke (with whom was Jno. Milton Reifsnider on the brief), for the appellees.
   Boyd, C. J.,

delivered the opinion of the Court.

The appellant sued Thomas S. Jones and Frances S. Jones on the common counts. There was a demand for a bill of particulars, and one was filed as follows: “To* money loaned to defendants by plaintiff’s intestate, to wit: on or about November 13, 1914, $500.00, on or about November 30, 1914, $1,800. And to interest thereon.” At a later term leave was granted the plaintiff to amend the bill of particulars and an amended one was filed. In place of the language used above it read: “To money received by the defendants from the plaintiff’s intestate, to wit;” and then follows the amounts as stated in the original bill of particulars. An exception was filed to that, which was sustained. The plaintiff then filed a second amended bill of particulars as follows: “The defendants are indebted to the plaintiff for money had and received from the plaintiff’s intestate for the use of the plaintiff’s intestate, as follows.” The amounts and dates are the same as those set out above. Issue was joined on the general issue pleas and a plea of the statute of limitations, and the case proceeded to trial, but the plaintiff entered a non pros as to Frances S. Jones. There are six bills of exception—the first five embrace rulings on evidence, and the sixth was to granting a prayer: “That under the pleadings and evidence in this case there is no legally sufficient evidence to enable the plaintiff to recover and the verdict of the jury must be for the defendant.” That prayer was granted, and verdict rendered accordingly. From the judgment entered thereon this appeal was taken.

The first point relied on by the appellant is the ruling of the Court on the exception to the amended bill of particulars. There can be no doubt about the correctness of that ruling. “To money received by the defendants from the plaintiff’s intestate, to wit,” etc., gave the defendants no information as to what the suit was about, or how it was claimed to have been received. It might have been a gift, a loan, or, as stated in Mueller v. Michaels, 101 Md. 188, in reference to-the particulars there filed in a suit under the Practice Act (“For cash money received from the plaintiff in the month of June, 1904, by the defendants in the sum of $2&5.00”), “It may have been received, in the payment of a debt due the defendants; it may have been paid to them under some mistake; it may have been received to be delivered to some third party; of it may have been received by the defendants as a stake to be held to abide the determination of some event. In what way the alleged indebtedness of the defendants arose out of the receipt of the money is left wholly a matter of speculation.” In Cairnes v. Pelton, 103 Md. 40, 44, it is said: “The office and legal effect of a bill of particulars is to inform the opposite party of the precise nature and extent of the claim which the plaintiff intends to rely upon under each and every count of the napr. and to confine his evidence to the claim thus stated.” That a hill of particulars ought to he specific, like an account filed under a Practice or Speedy Judgment Act, may at least he implied from section 24, subsection 107, of Article 75 of the Code, as amended by the Act of 1914, Chapter 378.

The most important question in this case is presented by the first bill of exceptions—whether the record from the Orphans’ Court of Carroll County was admissible in evidence. Jacob Webster Oaple executed a. last will and testament on September 14, 1914, and died November 10, 1915. On November 19th, 1915, Ida F. Stocksdale, his only daughter, filed in the Orphans’ Court a petition in which she said she had heard there was in existence a paper writing purporting to be his last will and testament, and asked the Court not to probate it until she had a reasonable time for an examination of it and the preparation and filing of a formal caveat thereto. On November 22nd Thomas S. Jones, the appellee, presented the will to the Orphans’ Court and declared that the instrument of writing was the true and whole last will and testament of said Caple; that he had found it among the private papers, of the déceased and did'not know of any other will or codicil. On November 26th Mrs. Stocksdale filed a caveat alleging testamentary incapacity, undue influence, fraud and other grounds, and on November 30th a summons was issued for the devisees, and legatees named in the will, including Frances S. and Thomas S. Jones, which was returnable December 14, 1915. All were returned sum-money and on December 14 the trustees of the Sandy Mount Methodist Protestant Ohnrch in Carroll County (to whom he had left $500.00 to be invested and tbe income to be used for the care of a lot in the church burying ground) and Lewis W. Caple, the executor named, appeared in open Court and verbally declined to take any action in the matter. The others did not appear or answer.

The will left Mrs. Jones $500 “for her care and trouble in nursing me and my wife during her illness” and Thomas S. Jones $500 “in consideration of his care and trouble in helping to nurse me an°d my wife during her illness, and also in caring for and feeding my stock.” Item 3 is—

“And, whereas, the said Thomas S. Jones and Frances S. Jones, his wife, have promised to board, wash and iron and care for me during the balance of my life, I do hereby bequeath to them the sum of Two Hundred and Fifty Dollars ($250.00) for each and every year or proportionate part thereof, that they may so board, wash and iron and care for me, in the event that I have not already paid them in my lifetime, the sum to be paid in full payment for said board, washing and care.”

By Item (4) he left $500 to the trustees of Sandy Mount Methodist Protestant Church, as stated above, and he gave his daughter $5.00 “and no more” in Item (5). By Item (6) he left all the rest and residue of his estate to his, two grandsons, Vernon W. Stocksdale and Howell Kelley Stocks-dale, and he then, appointed Lewis W. Oaple his executor.

Nothing’ was done until May 9 th, when a summons for witnesses was issued returnable on May 12th, when the Court heard testimony of witnesses produced on the part of the caveator. On May 26th, 1916, the Court met far the further consideration of the case and passed a decree in which, after reciting the proceedings, «amongst others that no party defendant had filed an answer, and “the Court being satisfied that at the time said paper writing was executed by the said Jacob Webster Caple he was not of sound and disposing mind and capable of executing a valid deed and contract, and that said paper writing is not the last will and testament of the said Jacob Webster Oaple, deceased,” the Court “adjudged, ordered, and decreed that the said Jacob Webster Caple died intestate, leaving as his next of kin and heir at law his only child, the petitioner, Ida F. Stocksdale, and that the probate of the said paper writing * * * be and the same is hereby refused.”

This exception shows that at the trial of the ease in the Circuit Court- the plaintiff’s attorney, in his opening statement to the jury, announced that “he proposed to show that during the lifetime of Jacob W. Caple, the defendants, Thomas S. Jones and Frances S. Jones., obtained money from him while he was not capable of making a valid deed or contract, and that ho would prove he was not capable of making a valid deed or contract by the records of the Orphans’ Court for Carroll County.” The plaintiff called the register of wills, who produced “the original papers in the matter of a caveat to the supposed will of Jacob Webster Oaple, and a transcript of the docket entries in that case before the Orphans’ Court of Carroll County,” which included the petition of Ida F. Stocksdale, of Nov. 19, 1915, the will and depositions of the subscribing witnesses., the caveat, the decree and the docket entries. The first exception is thus worded:

“Whereupon objection was made to them being offered in evidence, whereupon counsel for the plaintiff made the following offer: These papers offered in evidence, with a transcript of the docket entries in the matter of the caveat of Ida F. Stocksdale to the last will and testament of Jacob Webster Caple, deceased, are
“And the defendants renewed their objection to the introduction in evidence of said papers (but not on the ground that the original papers were offered and not a certified copy thereof), although coupled with the aforegoing offer of proof, and the Court sustained their objections and refused to allow said original papers and the transcript of the docket entries to he offered in evidence, to which ruling of the Court the plaintiff excepted,” etc.

Apparently it was intended to set out the papers and docket entries after the word “are” above, hut however that may he uo proffer to accompany or follow up the record from the Orphans’ Court, with evidence as to the mental condition of the deceased at the time the checks were given is disclosed in the Record in this case. What was said in the opening statement of counsel can not be said to be such proffer, although it does show the ground the appellant was relying on for recovery. What is said in an opening statement of counsel can not be treated as a proffer of additional evidence. Davis v. Calvert, 5 G. & J. 310, 38 Cyc. 1327. Nor do we find anything to justify the statement in the appellant’s brief that the Oourt refused to receive the record of the Orphans’ Court, “as well as any evidence showing the mental condition of the plaintiff’s intestate.”

The question, however, is whether any proffer of other evidence was necessary in order to introduce the Orphans’ Court record. .Sometimes it is incumbent on a party to accompany an offer of evidence with a proffer to follow it up with other evidence, but that is only where it is not of itself admissible and in order to make it so other evidence has to be introduced. As has been said in several cases in this Court, a party can not offer all of his evidence at the same time, and when he tenders that which is legal and material to the issue, it is the duty of the Court to receive it, and it can not require him to state in advance what other proof he intends to offer. Patterson v. Crowther & Boone, 70 Md. 124, 132; Met. Life Ins. Co. v. Dempsey, 72 Md. 288; Scaggs v. Reilly, 89 Md. 162, or, as was said in Taylor v. State, 79 Md. 130: “It was his unconditional right to pursue his own order in offering his proof; and it was the duty of the Court to admit any legal evidence material to the issue, although it would not be sufficient to rUpñntam, the issue on his part, unless followed up by other proof (italics ours). If it alone is not sufficient to sustain the case, the Court can on application so instruct the jury. Plank Road Co. v. Bruce, 6 Md. 457.

This record, if standing alone, would undoubtedly not be sufficient to prove that at the dates of the checks in November, 1914, the deceased was not mentally capable of making or giving them, but, as has often been held in will cases, while the question is whether the alleged testator was capable of making a valid deed or contract- at the time the will was executed^ evidence of his mental condition .prior and subsequent to the execution is admitted for the purpose of reflecting on that question. Davis v. Calvert, 5 G. & J. 300; Brashears v. Orme, 93 Md. 442; Harris v. Hipsley, 122 Md. 418. We entirely agree with the appellee that because a man is not- capable of making a will in September it, does not follow that he can not give valid checks in November. That depends upon circumstances, and in this case there is not even anything to show for what the checks were given. It is also true that there is no presumption that insanity, which is shown to have existed at one time, continued, unless it was proven to be of a permanent character, or the party was suffering from some disease which was progressive, or he had been regularly found insane by an inquisition which was still in force. Hut that does not. seem to us h> meet the whole question, and the record was in our judgment admissible. It was, however, not conclusive, and by itself was not even evidence of the mental condition of the deceased when the checks were given, or sufficient to show that he was incapable of giving valid cheeks at those times. Nor can we agree with the appellee that the case of Packham v. Glendmeyer, 103 Md. 416, is conclusive of the question now being considered. There a will executed in 1903 had been set aside on the findings of a jury that there was fraud, undue influence and incapacity to make the will. A will executed in 1902 was then offered for probate, to which a, caveat was filed, and the findings on the issues upon the will of 1903 and the judgment of the Orphans’ Court were offered in evidence at the trial of the issues as to the one of 1902. Some of the caveatees in the contest over the will of 1902 were not parties to the caveat of the will of 1903. The Court held that the finding of the jury upon the issue as to fraud under the will of 1903 was not admissible, and then said: “In regard to the testamentary capacity of the testatrix which was passed upon by the jury, in tbe proceedings referred to in the offer of evidence in question, what was determined as to that was her capacity vel .non at the very time of the execution of the will which was there in controversy. The finding had no relation to any time anterior; and was but the opinion of the jury upon evidence relating to the case in which it was adduced. Judgments and decrees as against those not parties to them are only ‘admissible to prove tern, ipsam, and the legal incidents and consequences thereof; but not to prove the facts upon which they are founded. Parr v. State, 71 Md. 220; Dorsey v. Gassaway, 2 Harr. & Johns, 402-409. The contention of the appellants here would give to the .findings of a jury a greater or larger effect in respect to their admissibility as evidence than the law gives to judgments and decrees.”

It will thus be seen that the Court had in mind in that case that some of the parties to it were not parties toi the first proceeding. In this case both Mr. and Mrs. Jones were parties to the caveat and there would seem to be no doubt that they were bound by the decision made by the Orphans’ Court—that is to say, that the deceased was not capable of making a valid deed or contract on September 14, 1914. Of course, it was not conclusive against them as to the capacity to draw the checks, but it was admissible evidence as reflecting upon that, if there was other evidence tending to show the lack of capacity to give' the cheeks. The record offered in Packham v. Glendmeyer was not admissible against those who were not parties to it, and hence was necessarily rejected as to all, as the verdict of the jury would be as to the validity of the will of 1902, and it could not be said the record of the proceedings as to the will of 1903 was admissible as to some and not for other eaveatees.

In the discussion of the admissibility of judicial records in Reynolds on Trial Evidence, pages 52-61, the learned author points out that every record of a Court consists of two distinct parts, denominated in Best on Evidence, sec. 590, as “the substantaiive and judicial portions,” and lie explains them. lie says on page 55 that the judicial portions, of records, (the part in which the Court expresses; its judgment or opinion on the matter) are “admissible and conclusive as between the parties and their privies;,” and in further explanation of that it is stated that every judgment rendered by a Court, having competent jurisdiction over the parties and the subject matter is, as between the parties, “conclusive; proof of all facts actually decided by the Court, and appearing-from, the record itself to. he the ground on which the judgment was based, unless evidence was admitted in the action in which judgment was delivered, which is excluded in the action in which that judgment is intended to be proved, or vice versa." The case of Gridley v. Boggs, 62 Cal. 190, cited by the appellee, does not seemj to us to meet the question spoken of above. The parties sought to be affected by the determination in the former proceeding do not appear to have been parties, to that case. Moreover, the decision in Gridley v. Boggs seems to have been largely influenced by a statute in force in that State.

But notwithstanding what we have said, the difficulty in this case is that there was no evidence offered which could be said in any way to reflect upon the mental condition of the deceased, excepting that record. We can not understand why evidence was not introduced, if the appellant had it, but we find no evidence whatever in the Record which throws any light on that question, excepting so far as the Record may do so. The Record itself was not legally sufficient to show incapacity of Mr. Caple at the time the checks; were given, and hence we are forced to the conclusion that there was no error in the Court granting the prayer taking the .case away from the jury, even if the Eecord of the Orphans’ Court he considered and treated as in evidence, and as. a result of that conclusion there is no reversible error in rejecting the Eecord.

There can be no doubt about the correctness of the ruling in the second exception. The question whs.: “Now, Mr. Stem, that money was afterwards paid out?” Mr. Stem was the officer of the bank where the check was deposited by Jones, who had depositd it to his own crdit. In the appellant’s brief it is said that question was asked “to show the conversion by the appellee to his use of the $1,800,” but it was certainly not necessary for the plaintiff to introduce it to show a conversion, as that was already shown by the appellee’s depositing the check to1 his own credit in the bank. Moreover, it was later proven by the witness Benson that about December 1st, 1914, Jones paid him $1,800 and told him he got it from Mr. Caple, and therefore the appellant could not have been injured by the refusal of the Oourt to allow the question to be answered.

In regard to the questions in the third, fourth and fifth bills of exception, it is only necessary to say that they did not in any way reflect upon the competency of the deceased to give checks', or tend to show any right of the plaintiff to recover, and under our view of the instruction given, it would be useless to discuss them.

We have not thought it necessary to discuss the pleadings or the form of the bill of particulars, but whatever the theory of the latter was, there is no legally sufficient evidence to sustain it. The only difference between it and the ordinary count for money had and received is that the bill of particulars states that it was received from the plaintiff’s intestate. There is no evidence whatever to show that it was received for the use of the plaintiff’s intestate, which is a very material part of the count and in this case of the bill of particulars.

From what we have already said, it will be seen that in our judgment there was no error in granting the defendants’ first prayer. It follows that the judgment must be affirmed.

Judgment affirmed, the appellant to pay the costs.  