53 Md. 348 | Md. | 1880
delivered the opinion of the Court.
This is an appeal from the rulings of the Circuit Court for Montgomery County, on the trial of issues sent from the Orphans’ Court arising upon a caveat to the will of Lloyd Etchison, deceased. The appellant, on behalf of himself and other heirs of the testator, was caveator, and the appellee was caveatee. The verdict was rendered in favor of the latter on 30th day of March 1878. Exceptions were reserved by the appellant to the rulings of the Court ■upon the prayers, an appeal prayed on the 18th December 1878, and the bill of exceptions signed on the 26th day of March 1879, on which day it hears date.
A motion has been made to dismiss the appeal, for the reason that the hill of exceptions was filed and signed too late, being long after the lapse of the term, and there being, as alleged, no order of Court extending the time and no consent of counsel to such extension.
The rules regulating this subject have been stated in The Baltimore Building Association vs. Grant, 41 Md., 560, and Wheeler vs. Briscoe, 44 Md., 308; and need not he here repeated. In this case the affidavits of counsel have been filed showing the circumstances which caused the delay in signing the hill of exceptions, and the action .of the Circuit Court in the matter. The recollection of the counsel does not in all respects agree, and their state
The issues sent for trial were eleven in number; but three only, the first, eighth and ninth were involved in the Court’s instructions; these present the question- of the factum of the will, that is to say, whether it was duly executed and attested according to law, and the question of the testamentary capacity of the testator.
Upon the question of testamentary capacity the jury were fully and correctly instructed, by granting the first, second, third, fourteenth and sixteenth prayers of the caveator, and the first and eighth prayers of the caveatee, this last being conceded.
The only prayer of the caveator relating to this question, which was rejected, was the thirteenth; but as the proposition contained in this prayer was fully covered by the instructions granted, it was not error to reject it. There being no necessity or propriety in repeating the same instruction to the jury.
Upon the question of the execution and attestation of the will. It appears that it was signed by the testator, by making his mark, and was attested in due form, by three subscribing witnesses, J. M. Smith, L. W. Snyder and B. B. Crawford.
The testimony is, that the will was written by Dr. Crawford, one of the subscribing witnesses, “ at the request of the testator, and at his dictation;” that the testator sent for the other two subscribing witnesses to attest his will; that on the morning the will was executed, Dr. Crawford read the will over to the testator, who said “ it was exactly as he wanted.” Dr. Crawford then left the will with the testator, went into an adjoining room and called in the other two subscribing witnesses ; that the testator was raised up in bed for the purpose of signing the
Dr. Crawford, in the presence of the testator, asked the other witnesses to sign the will, the testator did not speak while they were in the room.
The witnesses united in testifying that the testator was at the time of sound mind and memory, and capable of executing a valid deed or contract. “It was not necessary that he should ask the witnesses to sign and attest the will, his assent either express or implied was sufficient; provided the act he done with his knowledge, and not in a clandestine or fraudulent way.” Higgins vs. Carlton, &c., 28 Md., 141.
Again, it was not necessary, as stated in the seventh and tenth prayers of the caveator, that all three of the witnesses should actually have seen the testator sign the will, it is sufficient if they were present when it was signed, or if the paper after being signed is acknowledged or declared by the testator in their presence to he his will, and he signed and attested by them in his presence. Code, Art. 93, sec. 301. In this case there was no verbal declaration hv the testator in the presence of the witnesses that the instrument was his will, hut that declaration is made in the paper itself) and the testimony shows that it was signed by the testator when the three witnesses were present, and was attested by them in his presence. This was a sufficient execution of the will. 2 Greenleaf’s Evidence, secs. 675, 676; 4 Kent’s Com., 516 m; 1 Redfield on Wills, 284; 1 Jarman, (Edit. 1861,) 102.
On this branch of the case, the jury were properly instructed by granting the second, fourth and fifth prayers
Finding no error in the rulings of the Circuit Court, they will he affirmed and the cause remanded.
Rulings affirmed, and cause remanded.