59 Md. 475 | Md. | 1883
delivered the opinion of the Court.
The late. Judge Jeremiah Townley Chase died in 1828. He made his last will and testament in 1823. Between the date of his will and the time of his death he made six different codicils to his will; the will and codicils were made and executed in due form to .pass real estate, and were, soon after the death of the testator, duly admitted to probate.
The testator, at the time of his death, was seised of a parcel of ground, situate in Baltimore County, now in Baltimore City, containing about twenty-one acres of land; and which had, prior to his death, been leased to a certain Yachel Dorsey. By his will, he gave and bequeathed to his daughter, Hester Ann Chase, during her life, all the rents then due, or which might thereafter become due, on the lot of ground which he had so leased to Yachel Dorsey; and the estate in such lot, after the death of his daughter, Hester Ann, he devised to his grandchildren in fee simple,
By the second codicil, executed in May, 1824, he recited that because the sixty shares of Bank stock bequeathed to his daughter, Hester Ann, by his will, had been applied to the payment of a judgment recovered by the Bank against his son-in-law, he bequeathed to his said daughter the sum of $3000, in lieu and in the place of the shares of stock so bequeathed to her ; and he thereby declared that he revoked and annulled “all devises and bequests of shares of stock in the said Bank to the persons therein mentioned.” And by the sixth codicil, executed in 1826, he again revoked and declared void that clause in his will by which he bequeathed the sixty shares of stock in the Farmers’ Bank of Maryland to his daughter Hester Ann, and in lieu thereof, he devised to her all his right, title and interest in the twenty-one acres of land which he had leased to Yachel Dorsey, then deceased.
This devise of the Yachel Dorsey lot to the daughter Hester Ann, was allowed to stand unimpeached until several years after the death of the devisee, which took place in 1815. In 1859 she executed a lease of the lot of ground for ninety-nine years, renewable forever, to Thomas Winans, in consideration of $10,000, subject to an annual ground rent of $2,400 ; and in pursuance of a covenant in the lease, the reversion in fee was conveyed by the lessor, on January 5th, 1869, to Thomas, William J., and Ross Winans, in consideration of $40,000, making the aggregate consideration for the property $50,000. The grantees, and those claiming under them, have been in possession of the property ever since the date of the conveyances by the devisee, holding and claiming the property as their own.
The bill in this case was filed on the 26th of March, 1880, by some of the grandchildren of the testator, and others, against other of the grandchildren of the testator,
Before proceeding to consider the main questions, there is a preliminary question presented for determination.
After the answers were filed, but before the testimony was in, or the Judge below could know or see by examination what would be the state of the proof, whether doubtful or conflicting, and proper to be referred to a jury, the plaintiffs made application for issues to be framed and sent to a Court of law to be tried by a jury. This application was refused, and we think properly so.
An issue of fact from a Court of equity to be tried by a jury is not a matter of right, at any stage of the proceeding ; and in the exercise of a discretion it should only be allowed where the proof before the Judge creates doubt, by reason of conflict, doubtful credibility of witnesses, or where, from a mass of circumstances, it may be difficult to draw a proper conclusion; but it is never allowed as a substitute for the failure of proof, or for omitted evidence. Whitaker vs. Newman, 2 Hare, 300. Indeed there is no doubt that a Court of equity has the power and full right to decide every question of law or fact which may arise out of the subject-matter before it, and over which it has jurisdiction, and the trial by issue forms no necessary incident to the proceedings of such Court. It is resorted to simply
Here the Court had no means of ascertaining the nature and character of the proof proposed to be produced, at the stage of the proceedings at which the application for issues was made, and therefore could not determine upon the necessity or propriety of resorting to such mode of trial. The application was, therefore, properly rejected.
1. The first question intended to be raised by the bill is, Whether the sixth codicil to the will of the testator is. invalid, and should not therefore have been admitted to probate, by reason of the alleged incapacity of the testator ?
There has been no exception to the exercise of jurisdiction by a Court of equity in this case. But it is proper for us to say, in order that this case should not be regarded as a precedent for the exercise of jurisdiction in such cases in the future, that it is no part of the ordinary jurisdiction of a Court of equity to revise and correct the probate of wills. In regard to wills of real estate, if formally executed according to the requirement of the statute, unless it be in cases of trusts or equitable estates, or there be some legal impediment to the party’s right to maintain an action .of ejectment, such party must assert his right in an action at law. Where the law furnishes g,n ample remedy there is
But, as we have said, there is no exception taken to the jurisdiction in this case, and we are therefore not called upon to apply the principle to which we have referred. And coming now to the question of the supposed invalidity of the sixth codicil, hy reason of the alleged failure of the mental powers of the testator, upon careful examination of the record, we fail to find anything whatever to justify such a conclusion.
The will and the codicils were admitted to probate in 1828, soon after the death of the testator, and they have remained unimpeached and unquestioned to the time of the filing of this bill—a period of fifty-two years. Litigation arose soon after the death of the testator in regard to the liability of certain devises and bequests contained in the will and codicils, to contribution for the payment of debts (Chase vs. Lockerman, 11 G. & J., 185) ; but during the whole course of that protracted ££id important litigation, it does not appear that there was a suggestion intimated that, all the testamentary papers admitted to probate, (including the sixth codicil,) were not valid and beyond impeachment. After such a lapse of time, with, the readiest opportunity at all times to make contest of the now disputed paper, in the ordinary way of trial of such questions by caveat, it would seem to he doing violence to every presumption in support of the validity of testamentary acts, and of the rights acquired thereunder, to open the door to mere speculative opinions as to the mental condition of the testator. The lapse of time operates to secure from question and attack many of the most important acts of men, but none with greater fitness and force than testamentary acts, where their validity depends upon the
But if we disregard this presumption in favor of the codicil, and of the prima facie effect of the probate, and turn to the facts as proved, we find nothing to impeach the codicil. In support of that paper, we have the testimony of Dr. John Ridout; and though quite an aged person, he gave very clear and positive testimony of his personal knowledge as to the mental competency of the testator. On the other hand, we have two witnesses, not experts, who testify to certain impressions made upon their minds at the time, by certain acts and deportment of the testator. These impressions are of the most indefinite character, and would seem to he founded upon very slight and inconclusive grounds. While a non-expert is allowed to express his opinion as to the mental condition of the party whose act is involved, that opinion is worth nothing as evidence, unless supported by his own proof of facts sufficient to justify his conclusion. Here the facts detailed are wholly insufficient.
2. The remaining question is, -as to the effect of the devise of the property in controversy, as contained in the sixth and last codicil. It is contended that this devise in fee by the codicil, to the testator’s daughter, Hester Ann, was made in mistake or forgetfulness of the previous devises and bequests contained in the will and codicils, and that, as such last devise, if allowed effect at all, would have the effect to revoke the devise of the same property made by the will to the grandchildren, such last devise should not, upon established principles of construction, he allowed to operate a revocation of the first devise. This is a very strict rule, and is only allowed application in a
Upon the whole, we are clearly of opinion that there is no ground for the claim made in this case, and the pro forma decree of the Court below should be affirmed.
Decree affirmed.
