Barnes v. Syester

Tuck, J., delivered the opinion of this court. It has been regretted that more strictness has not been observed in the admission to probate of testamentary papers. To meet the apparent hardship of particular cases doctrines have been engrafted on the law, which have caused as much injustice in other instances as their introduction was designed to prevent, and, we think, it may be suggested as a probable consequence of some decisions, that, by the failure of courts to ascertain the real intent of the deceased, wills were made for persons who in fact had died intestate. Among the most difficult duties we have to perform is that of passing upon unfinished, imperfect, and informal papers, in the nature wills, and it is greatly increased when the intention of the maker is to be gathered from the varying, and often conflicting, statements of .witnesses, detailing declarations and-acts, of uncertain import, at different times, the correct interpretation which must depend on collateral circumstances into which the tribunal to decide the"question cannot enter. And, if, fora solution of the difficulty, resort be had to adjudged cases, we find eminent jurists differing in their conclusions, though drawn from the same or similar acts arid-.words,.according .to, the peculiar facts disclosed, at the time they were done or uttered, and, in some cases, invoking, not merely the fes gestee of the transaction, but, the conduct of the testator during his whole life, as far as it may appear to have had relation to the act in question. The decision of the present case is attended by [528] these embarrassments, called upon, as we are, (o pronounce for or against what is propounded as the last, will of a woman shown to have been of intelligence, strong mind and will, of good business habits, and specially instructed by' counsel as to the requisites to give full effect to such an instrument as the one before us, when she is no longer here to speak for herself. The paper in question was drawn by Miss Mason, and is effective to accomplish the purposes indicated, except that, though signed and sealed, it has no date, blanks being left for the purpose, and there is an attestation clause in the usual form, but no witnesses. The time of the writing may be inferred from extrinsic facts, and the signing does not appear to have been at any olhet time than when it was written. If done, at that time, it is plain that, if she designed the will to operate on all the property mentioned, she must have looked to the further act of supplying the dates and publishing before witnesses. It was endorsed as her will, and found near the top of her travelling trunk, in the room at a hotel where she was staying at the time of her death, which occurred two hours after a sudden stroke, during which she was unconscious. The trunk also contained other papers, her watch, jewelry and clothing. One witness proved that she had said, frequently, that all persons should make wills, and that she intended to make hers some of these days, and, another, that she said she had made hers, but whether this last declaration had reference to this paper or to one that she had executed some years before does not clearly appear. There is other evidence, from which it may be inferred, that she did not intend to die intestate, but the question before us is, whether she designed this paper to operate as her will, as to the properly which by the law it could effect, notwithstanding it might fail of effect as to other property. And, when we consider all the facts and circumstances belonging to the question, and the principles of law governing cases of the kind, we think that conclusion cannot be drawn with the certainty which the law requires when it is attempted to disinherit those, who, in the absence of a will, are entitled to take. If the present paper had not been signed by the party we [529] could not hesitate to reverse the order of probate, on the authority of Plater vs. Groome, 3 Md. Rep., 134. It is well settled that an instrument, like the present, is to be classed among unfinished testaments, on account of the attestation clause without witnesses, even where the party Isas signed it; that the presumption of law is against such papers; and, though a slight presumption, must be rebutted by extrinsic circumstances, in order to its being pronounced for. This doctrine is fully stated in the case of Beaty vs. Beaty, 1 Addams, 154, (2 Eccl. Rep., 60,) which in some respects was like the one before us, with the additional fact that the will was dated, and the testator had said that he imd destroyed his former will and made a new one. In Harris vs. Bedford, 2 Phill., 177, Sir John Nicholl said: “From the circumstance of there being no witnesses to the attestation clause, ihe court, is bound to presume that the deceased intended to do some further act— certainly the paper is imperfect—and the presumption against it must be repelled, either by its being shown that he intended it to operate in its present form, or that he was prevented from finishing it by the act of God.” In Modern Probate of Wills, 56, of unfinished or informal papers, it is said, “that the law on this subject is inflexible.” The same principle was recognized in 4 H. & J., 156, Tilghman vs. Steuart, and 3 Md. Rep., 134. It maybe observed also that the authorities treat the attestation clause as a more pregnant circumstance when drawn by the testator. Applying this rule of interpretation we do not consider the facts relied on by the caveatee as sufficient to repel the presumption, that, at the time of writing and signing the paper, Miss Mason intended to do some other act to give efficacy to it as her last will and testament; on the contrary there are circumstances having a very strong bearing the other way. She had real estate at the time the will was written, which must have passed to the executor for sale, in order to effectuate the intent as to those very legatees who appear to have stood in the tenderest relations to her; yet she did not give the paper that effect, by a formal execution per testes, and if she had then died the will could not have been [530] fully carried out. But she actually sold this very land, out of which alone, at that time, the legacies could have been satisfied. Did she by that act design to affect those bequests, and that the others should operate? It is impossible to say. The most we can do is to speculate about her intentions, and, that which appears to be as reasonable as any other, is that, as the treaty for the sale of the land commenced about that time, it was her purpose to postpone the consummation of the act, in order that when executed it should be so altered as to operate on all her property according to its then condition, because the will disposes of all she had, and shows an intent not to die intestate as to any of her property. Although the land acquired from Zeller, in exchange, on the sale of “Richmond” would have gone in aid of the legacies that were affected by the sale of that farm, yet the land in Iowa, obtained from Dr. Harvey, would not; and, as the Zeller land was disposed of (o Harvey, there was none in Washington county, on which the will could operate. Hence, we see that if the paper had been executed these transactions must have defeated the intent expressed in it, so far as the legacies were to have been paid by a sale of land. As, in all the varying conditions of her affairs, during the two years and more that elapsed between lite supposed writing and signing of the paper and her death, such as exchanging lands in Washington county, then for lands in another State, and buying land in a third State, probably with the proceeds of the Richmond farm, she never executed a will with the formalities that she was aware were necessary for the purpose of accomplishing what this paper shows she at one time intended, we think there was only a floating, unsettled purpose in her mind which she might or might not accomplish, in one way or another, as might be most expedient at the time of completing the act. If it had appeared that she signed this paper after the sale of the Richmond farm, when she must have known that it could not affect the land, there would have been ground for the 'presumption that she designed it to operate, in its then unfinished form, as far as by law it might, but, even then, the dates probably would have been supplied, so as to show the time of such change of intention. [531] (Decided July 30th, 1859.) Much reliance was placed on the fact that the will was found in her trank with valuable articles. Now, the place of deposit is always an important fact, but not a controlling circumstance. Mrs. Edmonson’s will was more carefully put away, and also that of David Steuart, (3 Md. Rep., 134, 4 H. & J., 168,) but the inference sought to be deduced was overcome by other other evidence. Is it oof. quite as probable that in the fluctuating state of her property the will was kept near her person in order that, when her affairs assumed a settled condition, che might make another, or execute that one in due form of law ? A travelling trunk cannot be considered the usual depository of a will, made and intended to operate as a final disposition of one’s affairs; they are commonly confided to the safe-keeping of others, or carefully put away. As we have said, her property was undergoing changes. She said to one witness that she intended to buy a farm and settle an Washington county, but on the day before her death, instead of selling and buying again, she agreed to exchange her land for land in Iowa, thereby parting with all the realty on which the will could have operated for payment of the legacies, when she had in personalty, exclusive of negroes, not more than enough to satisfy half these bequests. She probably intended to have made a will after the exchange of the title deeds, and, on that supposition, the place where it was found is the one where she would most likely have kept it. It was not even carefully put away, but lying open near the top, easy of access when wanted. Considering her mode of living, with trunks containing valuables at oilier places of deposit, it is more reasonable to suppose that she did not consider it as her final disposition of property. The law in such cases treats the paper as merely evidence of an inchoate intention -of what she designed, and we must dispose of it in the imperfect condition on which it is propounded for probate. We may thus defeat bounties which the deceased, doubtless had much at heart; but, though to be regretted, it cannot be avoided consistently with the principles of law to which it is the duty of the court to adhere. Order' reversed.