Devoe ex rel. Devoe v. Singleton

Fowler, J.,

delivered the opinion of the Court.

Issues involving the validity of the will of the late William L. Wheeler were sent from the Orphans’ Court of Harford County to the Circuit Court thereof, to be tried before a jury, and during the trial three exceptions were taken by the plaintiffs to the rulings of the Court below as *71 to the admissibility of certain testimony. In regard to the first exception it is sufficient to say that even assuming that there was error in allowing the witness, Michael, to answer the question as to whether the testator was competent in the opinion of the witness to execute a valid deed or contract at the time of the execution of the will, yet the answer is absent from the record, and it is therefore impossible for us to know what it was. It may have been either injurious or beneficial to the plaintiffs. The answer of the witness not having been set forth in the bill of exceptions, it does not appear that the plaintiffs were injured thereby. In order to justify a reversal there must be both error and injury apparent from the record. Lawson v. Price, 45 Md. 123 ; Turnpike Co. v. Crowther, 63 Md. 558 ; Same v. State, 63 Md. 578 , and Commissioners of Calvert County v. Gantt, Tax Collector, not yet reported—see 28 Alt. Rep. 101.

In the case last cited we held that the refusal to allow a proper question to be answered is in itself a reversable error. “ If the question was in itself a proper and pertinent one,” says Robinson, C. J., who delivered the opinion of the Court, “ it was quite unnecessary for the defendant to state the purpose for which it was offered. The record does not, it is true, show what would have been the answer to the question, and this the record could not show, for the reason that the witness was not allowed to answer.” And these remarks apply to the second exception. The Court below refused on cross-examination to allow the same witness, Michael, after the will was read to him, to answer the question as to whether he thought the disposition of the property thereby made by the testator was an intelligent and proper one. Perhaps this question would have been proper on cross-examination if there were any testimony in chief on which to base it, but so far as the record shows there was none whatever, and the Court committed no error in refusing to allow the witness to answer.

What we have said in regard to the first bill of excep *72 tions applies also to the third, for it appears that the witness was allowed to answer the question objected to, but the answer is not set forth in this record.

(Decided November 22d, 1894.)

Rulings affirmed.