| Md. | Dec 20, 1866
delivered the opinion of this Court.
The paper exhibited as the last will of John Goodhand, ■deceased, was executed and attested in such form as to pass personal estate, and the property therein named being leasehold will pass under it, unless the caveat of the appellants be sustained.
The execution of the paper is not denied, but the objections to its validity, relied on by the appellants, are:
Eirst. That it was obtained by undue influence exercised over the testator by the appellee, who was his wife.
■Second. That it was obtained by fraud.
Third. That the paper was fraudulently concealed by the appellee after she had been directed by her. husband to destroy it, and is therefore inoperative as a will and void.
1st. As to the alleged undue influence: The proof shows, that at the time of executing the will, the-testator was of sound mind, and though not in robust health, was far from being in a weak or enfeebled condition.
The paper does not appear to have been executed in the presence of his wife, — -Mrs. Goodhand, the appellee, is the only witness who speaks on this point; she states that she knew nothing of the execution of the paper until it was handed to her by him signed and attested.
Both the witnesses, Tucker and Smith, who were called to support the caveat, state that the deceased declared to them his intention to make such a will, and informed them afterwards that he had done so. These witnesses state, that he said to them, in 1861, “he was greatly troubled by his wife in reference to making a will, that she desired him to make provision for her daughter, Ida.” But there is no evidence of any such undue influence exercised over him
In Davis vs. Calvert, 5 G. & J., 302, it is said : “That degree, therefore, of importunity or undue influence which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufficient to invalidate it.”
Sir John Niciioll, in the case of Kingleside vs. Harrison, 2 Phillimore, 551, observed, “that importunity, in its correct legal acceptation, must be in such a degree as to take away from the testator his free agency.”
This record certainly furnishes no evidence of any such importunity or undue influence in procuring the execution of this will.
On this point, the testimony of Wittman, one of the caveators, has been chiefly relied on in the argument. He states that Gfoodhand, after the execution of the will, told him what he had done, and said: “I had to do it, William, to have some peace ; if I did not she would worry me to death.” This testimony is excepted to on the ground that the verbal declarations of a testator, made after the execution of a will, are inadmissible to impeach its validity, and authorities have been cited in support of this position.
Without expressing any opinion on this point, which it is unnecessary for us now to decide, — in our judgment, the declarations of the testator made to Wittman, even supposing them to be legally admissible, are not sufficient, in the absence of other proof of duress, to invalidate the will in the face of the fact that the testator was of sound mind, and that he had the power of resisting the importunities of his wife, as is shown by the other evidence in the cause.
The second ground of objection, that the execution of the will was procured by fraud, is without any proof to support it.
Third. The allegation that this will was fraudulently
As to tbe declarations of tbe testator, it is cleár that they could not amount to a revocation of tbe will, which, undertbe Code, Art. 93, sec. 363, could not be effected except. By writing.
Both these witnesses state that the appellee, in 1865, spoke as if there -was no-will in- existence, and endeavored! to persuade them to prevail on her husband to make a will! in favor of her daughter, Ida. But this is explained by the fact that she considered the memorandum of the lOtln of January, 18-62, as inoperative as a will, and it is possible the testator was of the same opinion.
The witness, Smith, states that Mrs. Goodhand, in-January, 1866, told him her husband had made a will and liad directed her to destroy it, which she had neglected to-do, and was- troubled in consequence. And the inference of the witness was that she referred- to the-memorandum of the 10th of January, 1862.. It appears-, however, by the testimony of Mrs. Goodhand, Miss Sarah Snead and George H. Crane, that there was another will, a more formal paper,, which had been executed by the deceased, and which was-destroyed by him in February, 1866. This evidence explains the meaning of Mrs. Goodhand’s conversation with Smith, and effectually rebuts the inference that they referred to the memorandum of' January, 1862. This paper having been executed by the testator freely, without duress-, or undue importunity or fraud, and remaining unrevoked,, was properly admitted to probate by the Orphans’ Court.,
•Order affirmed.