Lungren v. Swartzwelder

Miller, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Washington County, admitting to proba,te the following paper as the last will and testament of Peter Swartzwelder : “Hagerstown August 11th 1875 — what I oiven is as “ follows: “Brick house on the publick — with six store-rooms, from “William Householder’s property, on the publick square, “ to Samuel Rouskuep hat store, on West Washington “street “ Hagerstown Lyceum Stock, Thomas Harbine (Presi- “ dent) 4 Shears $5 $ har. Hagerstown Lyceum Stock, William M. Marshall (C 20 shears “ Prest. “ “ “ 20 do “ do “ do “ ■ “ “ 20 do “ . do “ “ “ 10 do “ shears Waynsborro’ Turnpik Company at $25.00 “ shear “4 shears Hagerstown and Sharpsburg Turnpike at “ $25 shear — 487 — “ Northe-n Pacific Railroad bonds ($7000) seven tliou- “ sand dollars “ First National Bank Stock, Hagerstown Ma-yland 28 “shears. “ Hardware store No 1 on Corner of the publick Square. “Hagerstown Gaslight Company 25 shears (I). Artzs, “ Presid-nt) Seventy dollars on each shear has bin paid. “ To Franklin Swartzwelder Heard two thousand dol- “ lars out of thepr. eeads of the sale of hous- on the pub- “ lick square. “Sarah Swartzwelder of Cuberlend, Myland, b-other “ Isaac’- widdow one thousand or perhaps tu thousand “ dollars, after the sal- of property on the square ££ House whare I now live on West Washington Street No 82, to be sold. £ £ My houses to be sold and the proceads paid over to the respective parties named in my will, perhaps J. W. if he qits dukg. ticker. “I appoint for my administreatirs Harry Swartzwelder “ of Cunbeirtand Mayland, and Franklin A. Heard, of “ Hagerstown Maryland.” Peter Swartzwelder.” The case was tried in the Orphans’ Court upon testimony which appears in the record, and their order is before us for review upon facts as well as law. The legal principles which control Courts in the decision of such cases have been so often and so clearly stated by the authorities in our own State, that it is quite unnecessary to reiterate them here. The whole subject has been elaborately discussed in Tilghman vs. Stewart, 4 H. & J., 156; Boofter vs. Rogers, 9 Gill, 44 ; Plater vs. Groome, 3 Md., 134; Barnes vs. Syester, 14 Md., 507; Harris vs. Pue, 39 Md., 535 ; Mason vs. Poulson, 40 Md., 355, and Devecmon vs. Devecmon, 43 Md., 335. It appears from the proof that the paper before us was written and signed by the deceased and there is nothing — 488 — to show it was signed on a different day from its date. He died about the 14th of December, 1875, aged about seventy-two years and had never been married. He bad been engaged in the hardware business, was an intelligent, prosperous and good business man, and left real estate consisting of a dwelling house and warehouses in Hagerstown, valued at about $80,000, besides personal property. After the date of this paper and during the autumn, his health was feeble, but he was still able to go to his store and attend to his business. His mental faculties remained unimpaired, and he was capable of executing a valid deed until at least a few days before his death. As respects his mental and hodily condition, there is no proof tending to show he was prevented by sudden sickness, or anything which the law would pronounce an act of God, from perfecting it or executing a formal will capable of passing his real as well as personal estate, for more than three months after the date of this paper. It cannot therefore be upheld as a will upon that ground. It was found in his safe at his store, in a pocket book, with some notes and certificates of bank and other stocks. But this fact of itself does not make it a will. The place of deposit and the care with which it was kept, are merely circumstances to be considered and weighed with all the- other facts of the case, in solving the question whether the party in-tended it as his will or not. In the absence of proof to the contrary we must assume the paper was written and signed on the day it bears date. The questions then for us to determine are, did he write it animo testandi, that is, did he then intend the paper as it stood, to be his will without alteralion and without looking to anything further to be done in order to perfect it? or did he afterwards recognize and adopt it as his will ? To give a satisfactory answer to these questions we must first look to the paper itself and the intrinsic evidence it furnishes. What is it and what does it profess — 489 — to be ? It no where on its face professes to be the will of the writer. The major part of it is simply a statement of what he owned, in form and in fact an inventory, or a schedule of his property. That is followed by three clauses indicating who should receive portions of it, (and as to one of these he had not made up his mind as to the amount, and as to another, was undecided whether he would give him anything) by a will to be thereafter executed. He would give to one $2000 out of the proceeds of the sale of his house. To his brother’s widow he would give one or perhaps two thousand dollars, after, that is, out of the sale of property on the square. It then says his houses are to be sold and the proceeds “paid over to the respective parties named in my will,” that is, to the parties named in the will which I may or intend to execute, and then is added “perhaps J. W. if he quits drinking liquor,” that is, I may give J. W. a portion if he reforms his habits. There is no residuary clause, and nothing is said respecting any disposition of the stocks and bonds scheduled in the former part of the paper, and no disposition indicated, except by a will to be thereafter made, of the great bulk of the proceeds of his real estate. It seems to us impossible for any one to read this paper and say the writer of it intended it should be, and wrote it for his last will and testament. So far as it refers to any intended testamentary disposition of his property it indicates a mind in as hesitating and undecided a state as could well be imagined. It does not rise to the dignity of memoranda or instructions to a scrivener for the preparation of a will. He knew, or if he did not, he was informed by his attorney after the date of this paper, that three witnesses were essential to a valid will of real estate, and was furnished with the form of such an instrument, and yet so far as this paper contains any possible intimation of testamentary wishes, it refers to that species of property alone, and is not attested by a single witness. Unless — 490 — therefore we can find evidence of some acts or declarations clearly showing that he intended this paper as it stood to ■be his will, or subsequently recognized or adopted it as such, it cannot be admitted to probate. But when we turn to the record we find an entire absence of any such testimony. There is no proof that he ever, to his most intimate friends, declared this paper to be his will, or mentioned or referred to it in any way to any one.1 On the other hand it is proven that more than a month before his death, and more than two months after the date of this paper, he repeatedly declared to his pastor, his physician, and his legal adviser who were intimate with him, and conversed with him on the subject, that he had made no loill. To the first he said in addition, that it was a matter about which he had been thinking for several years and it ought to he done, and to the second that he would attend to it when he got down to his store. He told his legal adviser and friend that he wished only the form of a will, and when furnished with it and instructed as to the number of witnesses and mode of executing it, he thanked him, put it in his pocket and said “ when I get down to my store I will attend to this.” These declarations thus repeatedly made, are wholly inconsistent with and repel the idea that he thought he had already made a will by writing this paper. In short this case in all its circumstances differs widely from that of Harris vs. Pue, and Devecmon vs. Devecmon, in which the papers were sustained as wills. Here the paper itself and the acts and declarations of the writer concur in disclosing an absence of the animus testandi and of all subsequent recognition or adoption. But it has been strenuously argued that although the paper may not operate as a will disposing of property, it is yet good as a testamentary appointment of executors, and should therefore be admitted to probate. If the paper contained nothing but the clause relating to such appoint — 491 — ment there would he much force in this argument. But such appointment must also be made animo testan di, — it must he or form part of a testament. The intention in this respect must appear and he ascertained in the same way as it is with respect to dispositions of property. We must look to the entire paper, treating it as a whole, and to all the acts and declarations of the writer relating to it. Doing so, we find nothing to warrant us in separating this part of the instrument from those which precede it, or to justify the conclusion that the writer wrote this part with, and the others without the animus testandi. What he said to his friend and legal adviser confirms the view that he regarded this as well as the disposition of his property, about which lie was then clearly undecided, as something to he carried out and completed by a will to he thereafter executed. His legal adviser informed him that he should name in his will who his executor or executors should he, to which he replied, “I know that, as my executors will he my nephew Harry and Mr. Franklin Heard” and asked what he thought of them, and his counsel replied they would he very good men. This seems to us a clear declaration of an intention to name these parties as executors in the will, the form of which he wished his attorney to furnish him, and which he then intended to execute. In Barnes vs. Syester, there was a clear and definite appointment of an executor, hut as it formed a part of an incomplete and unfinished paper, this Court reversed in loto the order admitting it to prohate, and the same result must follow here. (Decided 10th May, 1876.) Order reversed.