46 A. 99 | Md. | 1900
This is an appeal from an order of the Orphans' Court of Baltimore City. The order transmitted certain issues to the Court of Common Pleas for trial and refused to send up certain other proposed issues. Objection is made to the first of the four issues which were transmitted, because that issue, as framed, requires the jury to find whether the testatrix requested the witnesses to the will to sign it; and secondly, because the issue, which was one that related to the factum of the will, was not raised between the parties to the cause by the petition and answer.
The Code provides: "All devises and bequests of any lands, or tenements or interest therein, and all bequests of any goods, chattels or personal property of any kind * * * shall be in writing and signed by the party so devising or bequeathing the same, or by some other person for him, in his presence and by his express direction, and shall be attested and subscribed in the presence of the said devisor by two or more credible witnesses, or else they shall be utterly void and of none effect." That the testator must in some way request the subscribing witnesses to attest the will is obviously involved in this requirement. The validity of the will is made to depend upon the instrument being attested by two or more credible witnesses, and *387
it cannot well be perceived how it could be attested at all unless the testator directly or indirectly requested those persons who do attest it to subscribe their names to it as witnesses. The law throws around testamentary papers the utmost precautions to prevent fraud and imposition, and it would seriously weaken these safeguards if it were held that no request at all or in any form by the testator to the subscribing witnesses were needed. But it is not meant by this that the testator should ask the witnesses to sign, because facts which are sufficient in law to constitute a legal request on his part are all that must be proved. Higgins v. Carlton and Scaggs,
The second objection to the issue is not more tenable than the first. The petition which assailed the will distinctly charged that "the said paper-writing is not the last will and testament of the said deceased, Rachel L. Gross, and that she, the said Rachel L. Gross, died intestate." The answer of the executor denied that Rachel L. Gross died intestate and expressly averred "that the paper-writing referred to in said petition is, in truth, the last will and testament of said Rachel L. Gross." This averment and the denial of it raised an issue as to the factum of the will; and the first issue transmitted was strictly within the contention thus made by the pleadings. The averment of the petition and the denial of the answer could not have had relation to any other subject than the one embodied in the issue, because each of the other grounds relied on to show that the paper was not the will of the testatrix was specifically stated and was exclusive of this question as to the factum of the will. The other averments involved mental capacity, and the questions as to whether the will had been procured by fraud or by undue influence. Obviously, therefore, it was not in the contemplation of any of the parties to the proceeding that the allegations and denials with respect to the paper not being the last will of Rachel L. Gross, had relation to mental capacity, to fraud or to undue influence; and there can be no doubt that the issue intended to be framed to put to the jury the finding of thefactum of *389 the will, was the one which was framed and is now objected to.
There was no error committed in rejecting the issues proposed by the executor. These were, first, what part or parts of the will (if any), were procured by undue influence; and, second, what part or parts of the will (if any), were procured by fraud. There was no averment in the pleadings to found either of these proposed issues on. It was not alleged that part of the will was invalid; it was assailed as a whole; and it was not contended by the executor that only part of it was valid, for it was upheld by him in its entirety. There was, therefore, nothing in the pleadings on which to found the issues propounded by the executor. Issues sent from an Orphans' Court to a Court of law for trial "ought to be framed concerning the persons named andthe matters set forth in the petition and answer." Richardson
v. Smith,
It follows from what has been said that the rulings of the Orphans' Court must be affirmed.
Rulings affirmed.
(Decided June 14th, 1900.) *390