Plater v. Groome

3 Md. 134 | Md. | 1852

Dissenting Opinion

Tuck, J.,

dissented, and delivered the following opinion :

If this were a new question I might, perhaps, agree that courts of justice had already gone too far in establishing imperfect and unexecuted papers as wills. I can perceive no difference in principle between this case and Brown vs. Tilden, 5 H. & J., 371. The authorities say, that a testamentary paper, prepared by another person than the testator, but at his request and according to his directions, will have the same effect as if written by himself. The question in such cases, is always whether it has been adopted by the testator as a testamentary disposition. There is no sufficient reason why an instrument, not signed but adopted by other acts, should not operate to pass personalty where land is also devised. when the same paper, if merely signed but not attested, would so operate. This point is fully discussed by Mr. Justice Johnson, in Tilghman vs. Steuart, 4 H. & J., 168.

In 5 H. & J. 372, the court said, that the “codicil was a valid disposition as soon as it was written, folded up, and put in a place of security.” This was done in regard to the paper under consideration. See also 1 Har. and McH., 509. In the case of Watts and Leroy, 4 Wend., 168, a will of realty and personalty was admitted to probate to pass the personalty, although it was not signed by the testator but was put away among his valuable papers.

I think that upon the authorities the order of the orphans court should be affirmed.

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Lead Opinion

Mason, J.,

delivered the opinion of this court.

Charlotte L. Edmondson duly executed her last will and testament, on the 22nd day of December 1849, by which the appellant, John R. Plater, was appointed sole executor. In November 1850, the testatrix, Mrs. Edmondson, caused a codicil to her will to be prepared by her counsel, R. B. Carmichael, Esq. This alleged codicil contains bequests of both personal and real estate. The will, codicil, note from Mr. Carmichael to the testatrix, and an old revoked will, were found, after her death, in a trunk where she kept money, valuable papers and other articles. The codicil never was formally executed nor signed, nor were the blanks filled up. Mr. Carmichael proves, that the codicil was prepared by him in conformity with the directions of Mrs. Edmondson ; and it is admitted as a fact in the case, that she was a lady of remarkable intelligence and strength of mind, familiar with the transaction of business, and had executed several instruments of writing. The codicil was admitted to probate as a valid testamentary paper, and we are required upon this appeal to decide whether it was properly thus admitted to probate.

It is clear that real estate could not pass under such a testamentary paper as the one now before us. A will to convey lands must be perfect on the face of it, and no defect in its execution can be aided or supplied by parol proof. It must not only be intended as his last will and testament by the testator, but must be executed with all the forms and solemnities required by law. It is equally true, that the same strictness is not required in a will of personal property.- But to constitute even a good will for personal property, the paper must be cither complete on its face, or it must appear, if incomplete or defective, that it was intended by the testator that it should operate as his will in its unfinished and imperfect state', or that he was prevented from completing the contemplated formalities by being overtaken by sickness or death, or some other casualty. In all cases of imperfectly executed testamentary papers like the present, it must appear that the deceased possessed the animum tesiandi at the time it was written, and that he intended and supposed the paper as it stood to be his will, without looking to anything further to be done in order to perfect it. Tilghman vs. Steuart, 4 Har. and John., 173. Upon these general principles, which we think are sustained by all the authorities, the present controversy must be settled.

We are then to inquire, from the facts and circumstances brought to our view, whether the codicil before us was supposed to be perfect by the testatrix, and was designed and regarded by her as sufficient to pass the property designated therein, in the condition in which it was found after her death.

It is not contended that the present paper is void merely because of its defective or imperfect character, but because of the absence of evidence, both intrinsic and extrinsic, to show that it was designed by the testatrix to be her last will and testament in the condition in which she left it. While we concede that the same will may be good for personal property and yet bad to carry real estate, still the fact that the will is thus imperfect, even in part, if known to be so by the testator, is a powerful circumstance to show that the deceased did not intend the- instrument to operate as a will for any purpose. It tends to show, that the paper, not being considered as complete, was therefore not intended to- operate as it then stood, even apon the personalty. The reasoning of Judge Martin in the case of Tilghman vs. Steuart, is equally applicable to this case. He says: “As this paper contains dispositions of real as well as personal property, it is fair to conclude, the testator intended it should operate equally upon the one as the other, and not that it should be a go'od will as to the personal and not the real estate. It is clear, that he could not intend it to operate as to his real estate, in its present unfinished form, because, from the paper itself, it appears that he knew other acts must be done before it could be operative for that purpose — the form of attestation, the three little marks for the witnesses, and the seal, leave no doubt in my mind upon this subject. Is it not equally clear that he intended, before this paper should be his will, other acts should be done to perfect th'e bequests of personal property?”

Where a paper is-unfinished the presumption of law is strong against it, more especially where it is to alter a previously executed testamentary instrument; and if there be added to the paper the attestation clause, and the names of the witnesses be omitted, and the signature of the testator be wanting, and the blanks remain unfilled, these circumstances will raise a presumption, that the deceased had either abandoned his intention of executing the instrument, or that he never fully made up his mi-nd on the subject. This presumption, nevertheless, may be overcome by counteracting circumstances. Reay vs. Cowcher, 2 Haggard 249. Lovelass on Wills, 312.

The circumstance, too, of its being in the handwriting of another, instead of that of the testatrix herself, is a circumstance against the will. It is true that this fact, of itself, is not conclusive on the point, but in all cases where the paper is in the handwriting of another, the proof must be clear that it has been adopted as his own by the testator. In the present case we are required to infer this adoption from the fact, that the codicil was carefully put away with the will and other valuable papers of the deceased. It must be admitted, that this is the most material and strongest fact in the case to support the validity of the codicil. But its force is-greatly weakened, if not entirely overthrown, when taken in consideration with the additional fact, that a previous, but revoked will, was found in the same trunk. If its place of safe keeping was to indicate, in this instance, the intention of the testatrix as to one paper, it should also have the same effect as to the other; but it is clear that no such purpose could have influenced the testatrix in regard to the old will, because that she had solemnly revoked by her subsequent will.- It is true, that the codicil was prepared in conformity with her directions, but this is not sufficient without some evidence that it was subsequently adopted by her as her last will and testament.

Folded up with the codicil was a note from- the counsel of the deceased. That note contains directions to the testatrix that the will was to be executed and the blanks filled up, in order to give it validity. She was a woman, we are told, of strong sense and business habits. As such, she would have seen the necessity of following those instructions if her purpose was to complete her will. Yet she omitted to do so, and we must therefore infer, that she did not design to reach the object to which those directions pointed. Nor was she prevented from effectuating her purpose by being' overtaken by sickness, death, or some other unforeseen casualty. About fifteen months elapsed between the writing of the codicil and her death, thus affording abundant opportunity of completing it, if she had desired to do so.

Under all the circumstances of this ease we regard the present instrument as nothing more than a mere project, or plan for a will, which was never adopted or carried into execution.

The case of Brown vs. Tilden, 5 Har. and John., 371, does not conflict with the views herein announced. That case, though the strongest case we have found in support of the present codicil, differs in many striking particulars from the case before us. The first characteristic that distinguishes the codicil in Brown vs. Tilden, from the one we are now considering, is to be found in its recitals as to the necessity of making such an additional will. The testator having sold the bank stock, which in the previous wall he had given to one of his sons as his share of the estate,, it is plain, that without the subsequent eodicil, which was intended to make him equal with his other children, that son would have been undesignedly disinherited. This fact alone was sufficient to have stamped the instrument with the-animus testandi.

In other respects these two cases are different. The paper in the first case was in the handwriting of the testator, this was not. No instructions from a lawyer accompanied the first paper respecting its execution and indicating the necessity' efi its being completed before it could operate as a valid will. The codicil in the first case was confined to personal property exclusively, while the one before us related to both personal and real estate.

The strong language of the concluding paragraph of the opinion of the court in Brown vs. Tilden, must be taken as having exclusive reference to the particular facts of the case. When the court there say, u the codicil was a valid disposition as soon as it was written, folded up and put in a place of security they must be understood as referring only to the particular codicil involved in that case.

After what has already been said, nothing need be added as to whether or not the answer of the defendant was responsive to the petition.

The decree of the orphans court having been in favor of admitting the codicil to probate, we must reverse the same.

Decree reversed and petition dismissed, the costs to he paid out of the estate.-