60 Md. 440 | Md. | 1883
delivered the opinion of the Court.
The question for determination in this case, is whether the Orphans’ Court for Baltimore City erred in refusing probate to the following paper which was propounded as the last will and testament of Owen Kernan :
“Baltimore, July 20th, 1882.
“'In anticipation of my departure from the City of Baltimore, and to provide for possible contingencies, I hereby give, bargain and sell and transfer unto my daughter, Ann C. Kelleher, her personal representatives and assigns, all my machinery, horses, wagons, goods, chattels, and effects, which I now have, or may hereafter acquire, or possess, and all moneys, claims and demands to which I am or may be hereafter entitled, reserving to myself the use of the same, and the right to dispose of the same*442 otherwise, if I deem proper. Witness my hand and seal this twentieth day of July, 1882.
his
Owen -j- Kernan, [seal.] mark
“Witness: James McColgan.”
The maker was an old man, nearly eighty years old. He made the expected trip, returned safely, and died shortly afterwards. In Masterman vs. Moberly, 4 Eng. Ecclesiastical Reports, 108, it is stated to be the-“settled law that if the paper contains the disposition of the property to be made after death, though it were meant to operate as a settlement, or a deed of gift, or a bond; though such paper were not intended to be a will, nor other testamentary instrument, but an instrument in different shape ; yet if it cannot operate in the latter, it may nevertheless operate in the former character.” Courts do this to carry out the intention of the maker, who, having attempted to make disposition of his property after his death in a particular way, and by an instrument not called a will, but which will .not effect the maker’s purpose, except as a will, dies without making any other disposition of it. If the disposition necessarily takes effect after death, and the intention is clear, that will be held to be a will, which the maker supposed to be some other kind of paper. In such case it must appear certainly what the testator wanted to do, and that he thought he was effectually accomplishing it by the paper made, in order to justify the holding an instrument to be testamentary which was executed as and for something else; but if it so appears, many adjudged cases establish the law to be as stated. Habergham vs. Vincent, 2 Ves., Jr., 231, is a leading ca'se on the subject. In that case Justice Bulles, replying, in his opinion, to the argument that the maker did not intend to make a will, said, “ whether the testator
In Carey, et al. vs. Dennis and Wife, 13 Md., 17, this Court not only adopted the law as laid down by the Chancellor, and Justices Wilson and Beeler, who sat with him in Habergham vs. Vincent, but also Justice Beller’s language ; and held certain bonds for the payment of money by the maker — (professing to be executed for value received, and drawing interest from date ; which were not delivered to the obligees, hut to another to he delivered to the obligees after the maker’s death) — to be testamentary papers. This Court says in that case that the rule is, that “when an instrument does not operate inter vivos, hut is made to depend for its whole operation upon the death of the maker to consummate it, then it can only take effect as testamentary.” We refer to a few of the cases which support this doctrine. Cross vs. Cross, 55 E. C. L., 714; Cock vs. Cooke, L. R., 1 P. & D., 241. In Rehn vs. Coles, L. R., 2 P. & D., 362; Att’y Gen’l vs. Jones, et al., 3 Price, 369; Jackson vs. Jackson’s Adm’r, 6 Dana, 257; Morrill vs. Dickey, 1 Johns. Chan., 153; Watkins, et al. vs. Dean, et al., 10 Yerger, 321; Walker vs. Jones, 23 Ala., 448; McGee vs. McCants, 1 McCord, 517; Welburn vs. Weaver, et al., 17 Ga., 267; Johnson, Adm’r vs. Yancey, et al., 20 Ga., 707; Turner, et al. vs. Scott, 51 Pa. St., 126; Daniel vs. Hill, 52 Ala., 430; McBride, et al. vs. McBride, et al., 26 Grattan, 480. In the last mentioned case Judge Staples concisely states the law thus, “All the authorities hold, indeed it is very clear, it is not necessary to the validity of a will, that it should have a testamen
It is possible he may have thought the paper some kind of a valid instrument different from and other than a will; yet the intention -was clear to provide for his daughter in the event of his death; and he ini,ended that paper to carry the property to her, in such event. The case of Walker vs. Jones, 23 Ala., 448, is a case like this, in the fact that there was no delivery of the property conveyed by the deed, and not only the use was reserved during life, but the absolute right to exercise ownership over it was reserved. The instrument in that case was in the form of a deed, in the language of one, and was acknowledged as one before a justice of the peace; but it was held to be a will. The fact, in the present case, that the maker was about taking a trip away induced him to make the paper then; but because he slates his reason, viz., that it was in anticipation of the trip that he makes the provision against “possible contingencies,” does not warrant us in holding that the will was wholly contingent in respect to its operation, and that because he did not die during that trip, but returned and died afterwards at home, leaving this paper uncancelled, it can have no operation. From the moment he executed the paper he must have intended it to operate if he died afterwards and before starting away. It could not have had reference to death occurring only during that absence. In reserving a life estate to
In French vs. French, 14 W. Va., 459, the will was in these words: “ Let all men know hereby, if I get
Whether an instrument is to be considered as a will depends on the intention of the maker; and the intention
It follows, from what we have said, that the Orphans’ Court erred, and the paper propounded should have been admitted to probate.
Reversed and remanded.