Devecmon v. Devecmon

Alvey, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans' Court of Allegany County, admitting to probate a paper purporting to be the last will and testament of William Devecrnon, deceased, who died on the 4th of April, 1875. The paper was admitted to probate as valid and sufficient to pass chattels, both real and personal. The record presents two questions for determination. 1st, Whether the paper in question, dated the 15th of July, 1867, is a good and valid testamentary disposition of the persona] estate of the deceased ; and, 2ndly, whether, if the paper be sufficient to pass the personal estate, chattels real or leasehold estates will pass, without the formalities prescribed by statute for devising lands and tenements. — 344 — 1. The paper propounded and admitted to prohate is conceded to be wholly in the hand-writing of the deceased, and is complete in every respect, even as a will to pass real estate, with the single exception of the failure to execute it in the presence of witnesses. It was signed and sealed hy the deceased, with an attestation clause appended, and indorsed in his own hand-writing, as his will. By the terms of this paper, the deceased devised and bequeathed to the widow of his deceased brother, Thomas Devecmon, the whole of his estate, real and personal; and appointed such sole devisee and legatee his executrix, and revoked all former wills. The estate of the deceased consists mainly of personalty, — part being leasehold estate; the real estate left by him being valued at from four to five thousand dollars. The only objection made to the admission of this paper to probate, as a will of personal estate, is founded upon the presumption that, as there is an attestation clause appended, the deceased intended to execrrte the pai)er in the presence of witnesses, and that it was incomplete in his apprehension of it, even as a will to pass personal estate, until the paper was so executed. Such presumption against the paper doubtless exists, and that presumption, in this case, is strengthened, because the instrument purports to dispose of both real and personal property. But such presumption is one of fact only, and may be rebutted or repelled by extrinsic evidence. Any evidence, therefore, that the deceased was prevented from completing the paper by death, or other sufficient cause, apart from a change of intention ; or that he intended the paper to operate as his will in the form in which he left it, will repel the presumption against the paper, and entitle it to probate, to have operation to the extent that the law will allow without other formalities than those that have been observed in the execution of the paper. Hence, the whole inquiry, in such cases, resolves itself into a ques — 345 — tion of intention, and evidence of any act or declaration of the deceased, in respect to the paper propounded, is receivable for the purpose of showing what his real intention may have been in regard to it. And, notwithstanding by the terms of the instrument it is made applicable to both real and personal estate, if the evidence clearly shows that the deceased recognized and adopted the paper in its present form, as his will to pass his personal estate, and that a more formal or complete execution of it was intended solely for the purpose of making it operative as to his real estate, then the paper is not to be regarded as incomplete with respect to the personal property, but as to the real estate alone. It is true, where the paper creates a common fund of real and personal estate, or where the disposition of the real and personal estate is so blended that the intention of the deceased in respect to the one estate is made dependent upon the other, in such cases, if the instrument cannot operate as to both estates by reason of defective execution, the Courts are strongly inclined to reject the paper in loto, and nothing short of the strongest proof of design on the part of the deceased will induce the Courts to admit the instrument to probate as to the personal estate alone. But such is not the case before us. For, although the paper purports to dispose of both real and personal estate, it is all to one person, and the scheme of the will, as to the personalty, is in no manner affected by its failure as to the realty. The proof in the case is entirely conclusive in support of the paper as a valid disposition of personal estate. It is proved that the paper was carefully kept locked up, among the most valuable papers of the deceased, and was frequently shewn and referred to as his will. The disposition of his property, as made by this paper, is in exact conformity to all his declarations of intent made upon the subject. These declarations were repeatedly made through a series of years, down to the last moment that he re — 346 — tained the power of speech. Not only did he declare his purpose of so disposing of his property, but he assigned 'the motive by which he was actuated in making such disposition. The deceased was an intelligent attorney, and well understood what formalities were required to make his will effectual as to the different species of property owned by him. He intended, as the evidence shows, to have published his will in such manner and form as would make it effectual to pass his real estate; hut that he delayed until it was too late. He understood perfectly well, however, that the paper in its present form was sufficient to pass his personal estate, and he so declared, and that it was his will, and that it would be allowed full effect- as such, so far as his personal estate was concerned. There is no difficulty or question as to the identity of the paper to which these declarations referred, and they would seem, according to all the authorities, to be abundant to establish his intention that the paper in question should stand and operate as his will as to his personal estate; and we therefore think that the Orphans’ Court was right in admitting the paper to probate. 2. The next question is, whether the paper, being sufficient to pass personal estate, will pass leasehold estate, or whether leasehold estate is embraced by the terms of sections 298 and 301 of Article 93 of the Code, in regard to wills. By the first mentioned section, it is provided that all lands, tenements and hereditaments, which might pass by deed, or which would, in case of the proprietor’s dying intestate, descend to or devolve on his heirs, or other representatives, except estates-tail, shall be subject to be disposed of by will; and by the last of the. above mentioned sections, it is declared that all devises and bequests of any lands or tenements devisable toy law, shall be in writing, signed by the testator, or by some other person in his presence, and by his express direction, and be attested and subscribed, in the presence of the devisor, by three or four credible witnesses, or else they shall be utterly void. — 347 — It is contended for the appellant, that the terms of these sections of the statute, are comprehensive enough to embrace leasehold estates, and that the same reason and policy of the law that require certain formalities to be observed in devises of freehold estates, equally apply to devises or bequests of leasehold estates. But, whatever may be thought of the reason or policy of the law upon the subject, it is quite clear, we think, that the terms of the statute do not include leasehold estates, as those terms are defined and explained by Coke and Blackstone. Co. Litt., 4a to 66; 2 Blacks. Com., 16 to 19. Under the term chattel is included every species of property which is not of a freehold nature ; and a lease for a term of years, while a chattel real, is but personal estate, though it be for a term of a thousand years ; and it devolves, not on the heir, but on the personal representative of the deceased, and is assets in his hands. 2 Kent’s Com., 342; Code, Art. 93, see. 220. At the common law, a party had testamentary power over his personal estate, including terms for years, (Co. Litt., Har. & B’s Ed., 111b., note 1; 1 Wms. on Ex’rs, 1,) but not so as to his freehold estates in land. The testamentary power over the latter was given by the Statute of 32 Henry 8, ch. 1, explained by 34 and 35 Henry 8, ch. 5, usually called the Statutes of Wills. These Statutes applied only to freehold estates of inheritance in fee-simple. Freehold estates held by one person during the life of another, denominated estates pur autre vie, were made devisable by the 12th section of the Statute of Frauds. 29 Car. 2, ch. 3. If the estate pur autre vie be not devised, but devolve upon the heir as special occupant, it is made assets in his hands as by descent; but if such estate be not limited to the tenant and his heirs, then it passes, like personal property, to the executor or administrator, and becomes assets in his hands. 4 Kent’s Com., 26; Code, Art. 93, sec. 220. Where such an estate is limited to the — 348 — tenant and his heirs, it is not an estate of inheritance nor a descendible freehold, as the heirs do not take by descent, hut by force of the gift or grant that created the estate. Doe vs. Luxton, 6 T. Rep., 289. Hence, in the section 298 of Art. 93 of the Code, were employed the terms, “descend to or devolve on his or her heirs or other representatives.” It is to be observed, that this section 298 of Art. 93, just referred to, is but the substantial embodiment of the Statute of Wills, as enlarged by the operation of the Statute 12 Car. 2, ch. 24, (which abolished the military tenures, and converted the Knight service lands into common socage,) together with the provision of the Statute of Frauds, with respect to the power of devise of estates pur autre vie; and that the section 301 of the same Article, is almost a literal transcript of the 5th section of the Statute of Frauds, prescribing the formalities for devises of lands and tenements. These latter terms, “ lands and tenements,” found in the 5th section of the Statute of Frauds, as also in the section 301 of Art. 93 of our Code, have been determined to include every kind of perpetual inheritance arising out of land, or in any degree connected with, or exercisable within the same. Habergham vs. Vincent, 2 Ves., Jr., 232; Buckeridge vs. Ingham, 2 Ves., Jr., 652, 664. But it has been held, from the earliest period since the passage of the Statute of Frauds, that the formalities prescribed by the 5th section for devises of lands and tenements do not apply to bequests of estates for years. Terms for years, however, cannot he created by will, unless the instrument be executed with all the formalities required to pass real estate; because the interest, in right of which the testator creates the term, is real estate, and creating the term is a partial devise of it. Co. Litt., Har. & B’s Ed., 111, b, note 3; Whitchurch vs. Whitchurch, 2 P. Wms., 236; S. C., Gilb. Rep. in Eq.; 168. But terms for years in esse, being but chattel interests, may be bequeathed by any such — 349 — will or testamentary paper as is sufficient to dispose of personal property; and such, we suppose, lias been the general understanding upon the subject. (Decided 14th December, 1875.) As we find no error in tbe order appealed from it will be affirmed, but without costs to tbe appellee in tbis Court. Order affirmed.