14 Md. 507 | Md. | 1859
delivered the opinion of this court.
It has been regretted that more strictness has not been observed in the admission to probate of testamentary papers. To meet the apparent hardship of particular cases doctrines have been engrafted on the law, which have caused as much injustice in other instances as their introduction was designed to prevent, and, we think, it may be suggested as a probable consequence of some decisions, that, by the failure of courts to ascertain the real intent of the deceased, wills were made for persons who in fact had died intestate. Among the most difficult duties we have to perform is that of passing upon unfinished, imperfect, and informal papers, in the nature wills, and it is greatly increased when the intention of the maker is to be gathered from the varying, and often conflicting, statements of .witnesses, detailing declarations and-acts, of uncertain import, at different times, the correct interpretation which must depend on collateral circumstances into which the tribunal to decide the"question cannot enter. And, if, fora solution of the difficulty, resort be had to adjudged cases, we find eminent jurists differing in their conclusions, though drawn from the same or similar acts arid-.words,.according .to, the peculiar facts disclosed, at the time they were done or uttered, and, in some cases, invoking, not merely the fes gestee of the transaction, but, the conduct of the testator during his whole life, as far as it may appear to have had relation to the act in question. The decision of the present case is attended by
If the present paper had not been signed by the party we
She had real estate at the time the will was written, which must have passed to the executor for sale, in order to effectuate the intent as to those very legatees who appear to have stood in the tenderest relations to her; yet she did not give the paper that effect, by a formal execution per testes, and if she had then died the will could not have been
If it had appeared that she signed this paper after the sale of the Richmond farm, when she must have known that it could not affect the land, there would have been ground for the 'presumption that she designed it to operate, in its then unfinished form, as far as by law it might, but, even then, the dates probably would have been supplied, so as to show the time of such change of intention.
Much reliance was placed on the fact that the will was found in her trank with valuable articles. Now, the place of deposit is always an important fact, but not a controlling circumstance. Mrs. Edmonson’s will was more carefully put away, and also that of David Steuart, (3 Md. Rep., 134, 4 H. & J., 168,) but the inference sought to be deduced was overcome by other other evidence. Is it oof. quite as probable that in the fluctuating state of her property the will was kept near her person in order that, when her affairs assumed a settled condition, che might make another, or execute that one in due form of law ? A travelling trunk cannot be considered the usual depository of a will, made and intended to operate as a final disposition of one’s affairs; they are commonly confided to the safe-keeping of others, or carefully put away. As we have said, her property was undergoing changes. She said to one witness that she intended to buy a farm and settle an Washington county, but on the day before her death, instead of selling and buying again, she agreed to exchange her land for land in Iowa, thereby parting with all the realty on which the will could have operated for payment of the legacies, when she had in personalty, exclusive of negroes, not more than enough to satisfy half these bequests. She probably intended to have made a will after the exchange of the title deeds, and, on that supposition, the place where it was found is the one where she would most likely have kept it. It was not even carefully put away, but lying open near the top, easy of access when wanted. Considering her mode of living, with trunks containing valuables at oilier places of deposit, it is more reasonable to suppose that she did not consider it as her final disposition of property. The law in such cases treats the paper as merely evidence of an inchoate intention -of what she designed, and we must dispose of it in the imperfect condition on which it is propounded for probate. We may thus defeat bounties which the deceased, doubtless had much at heart; but, though to be regretted, it cannot be avoided consistently with the principles of law to which it is the duty of the court to adhere.
Order' reversed.