28 Md. 98 | Md. | 1868
delivered the opinion of this Court.
The record, in this case, shows that the appellee instituted an action of trespass queere clausum fregit, in the Circuit Court for Baltimore county, against the appellant, who pleaded “not guilty ” to the same. An agreement was made by the parties, that the appellant, under that plea, might make any defence
In the progress of the case, it was removed to Howard county, and at the trial, there- was testimony on both sides, and chiefly, as to the possession and occupancy of the loans in quo, by the respective parties. The evidence was conflicting, and might have proved a mixed possession, not exclusive on either side, according to whatever estimate the jury might have placed upon it. The action of the Court below which we are required to review, relates to the several propositions, embraced in the four exceptions, taken by the appellant; we will consider them in the order of their occurrence.
In the first exception, the appellee having proposed to introduce, as matter of evidence on his part, a paper writing purporting to be the last will and testament of James Greenfield, dated 1st of February, 1779, and certified to by the register, the 28th November, 1779, the appellant objected to its admissibility. The Court overruled the objection, and permitted the same, Avith the accompanying certificate of the register, to be given in evidence to the jury.
This document, not having the requisites prescribed by the Statute of Frauds, for the purpose of devising real estate, Avas not admissible for that purpose; nor can such a probate, made before the Register of Wills, give to it validity and effect, as the last will of James Greenfield, to transfer his real estate; nor can such a paper, nor such probate, from any lapse of time, be effectual to that extent.
The Act of 1715, ch. 39, Avhich confers poAver on the probate Judge “ to take probate or cause to be proved, any last will and testament, although the same coircerns title to land ” did not dispense A\Tith the requirements of the statute of 29th Charles II; but authorized him to proceed according to the laAArs of England, in force in the colonies. He Avas directed strictly to pursue the provisions of ktw, in taking probate of a AA'ill.
To admit such an instrument with its, apparent imperfections, referred to, as a competent and operative last will to transfer real estate, required to be made and attested under the Statute, with very precise and formal solemnity, would be in palpable violation of the law, and utterly subversive of the safeguards which its express provisions, its genius and policy, emphatically prescribe. In the case of Rhodes, et al., vs. Vinson, et al., 9 Gill, 171, the Court say, “the policy of the law, has thrown around last wills, as many if not more shields to protect them from frauds, imposition and undue influence, than any inode of conveyance known to the law; ” “can there be a doubt, in cases like the present, where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy requires the contents of such paper to be established by the clearest, the most conclusive and satisfactory proof? ”
In the case of Hall vs. Gittings, 2 H. & J., 112, referred to by the counsel for the appellee, where the will of George Holland was in question, the facts were very different from those relating to the instrument now under consideration. That will, made in 1683, was proved by an exemplification taken from the records of the Prerogative Office. It professed to have been “signed, sealed and delivered in presence of” three witnesses. It was proved by one of the witnesses, that the testator signed, sealed and delivered the same as his act and deed. Another witness proved her mark as a witness, and that the other witness was dead. It was not the case of a lost will, or of a true or imperfect copy, that had been recorded.
In our opinion the Court below erred in its ruling on the point involved in the appellant’s second exception, and the testimony, proposed by the appellant, ought to have been admitted.
The ajspellee having given in evidence the will of Keziah Dilworth, which was new matter on his part, the appellant was entitled to introduce testimony of declarations made by her, as to the extent of her claim, not for the purpose of proving title, but to rebut any influence the production of her will might have had upon the minds of the jury, by showing that she nevqr claimed any interest, in the locus in quo. Such evidence was strictly rebutting, and not obnoxious to fair objection, to meet the case presented on the other side.
It is unnecessary to say more as to the third exception, than to remark, that as this case will be remanded, the evidence proposed to be offered by the appellant, which was objected to as not being properly rebutting, at the time, he will have the opportunity to introduce as testimony in chief.
The ruling on the fourth exception, granting the appellee’s first prayer, must be reversed, because, we have decided, the probate of the alleged will of James Greenfield, was not admissible, and the jury could not, therefore, presume the existence of any will. The instruction was also erroneous, in confining the attention of the jury, to the question as to the possession of the appellee, without permitting them to consider the character of all the evidence on both sides, as
The second prayer would have been unobjectionable, but for the defects referred to in the first prayer, the facts in which are incorporated in it.
Judgment reversed and procedendo ordered.