McSherry, C. J.,
delivered the opinion of the Court.
This is an appeal from an order of the Orphans’ Court of Baltimore City. The order transmitted certain issues to the Court of Common Pleas for trial and refused to send up certain other proposed issues. Objection is made to the first of the four issues which were transmitted, because that issue, as framed, requires the jury to find whether the testatrix requested the witnesses to the will to sign it; and secondly, because the issue, which was one that related to the
factum
of the will, was not raised between the parties to the cause by the petition and answer.
The Code provides: “All devises and bequests of any lands, or tenements or interest therein, and all bequests of any goods, chattels or personal property of any kind * * * shall be in writing and signed by the party so devising or bequeathing the same, or by some other person for him, in his presence and by his express direction, and shall be attested and subscribed in the presence of the said devisor by two or more credible witnesses, or else they shall be utterly void and of none effect. ” That the testator must in some way request the subscribing witnesses to attest the will is obviously involved in this requirement. The validity of the will is made to depend upon the instrument being attested by two or more credible witnesses, and
it cannot well be perceived how it could be attested at all unless the testator directly or indirectly requested those persons who do attest it to subscribe their names to it as witnesses.. The law throws around testamentary papers the utmost precautions to prevent fraud and imposition, and it would seriously weaken these safeguards if it were held that no request at all or in any form by the testator to the subscribing witnesses were needed. But it is not meant by this that the testator should
ask
the witnesses to sign, because facts which are sufficient in law to constitute a legal request on his part are all that must be proved.
Higgins
v.
Carlton and Scaggs, 28
Md. 140;
Cramer
v.
Crumbaugh,
3 Md. 501. Whilst there must be a proper attestation which includes a request by the testator that the witnesses subscribe their names to the will, still the legal question as to what constitutes a sufficient request is left open by the issue, as was done in
Higgins' case, supra,
for the trial Court to define by appropriate instructions. In the case just referred to the caveators asked by their fifth prayer the following instruction : “ Unless the jury believe from the evidence, that the said paper-writing was attested by the subscribing witnesses at the request of the said John Higgins, they must find on the first issue for the caveators.”. This prayer was modified by the trial Court, and by the modification the jury were told that if they found certain enumerated facts those facts constituted a sufficient request on the part of the testator. In reviewing this ruling our predecessors said: “ The facts stated by the Court below, in the modification of the fifth prayer, are sufficient in law, if found by the jury, to constitute a legal request by the testator for the subscribing witnesses to attest his will. The testamentary law of this State does not require that a testator should ask them to attest it. His assent, either express or implied, is sufficient; provided, ‘ the act be done with his knowledge and not in a clandestine and fraudulent way. ’ * * * If the prayer had been granted by the Court, without the qualification an
nexed, the instruction might have misled the jury, in supposing that the law required the testator to
ask
the witnesses to sign his will — the word
request
being ordinarily understood in that sense. The Court was therefore right in stating facts, in its modification of the prayer, which, if found by the jury, were sufficient to establish in law the attestation of this will. 5
Har. & Johnson,
480; 3
Md. Rep.
501; 8
Md. Rep.
23. In
White
v.
British Museum, 6
Bing. 310, Tindal, C. J., says, that ‘in the execution of wills as well as of deeds, the maxim will hold good,
non quod dictum sed quod factum est, inspicitur.’ ”
The second objection to the issue is not more tenable than the first. The petition which assailed the will distinctly charged that “the said paper-writing is not the last will and testament of the said deceased, Rachel L. Gross, and that she, the said Rachel L. Gross, died intestate.” The answer of the executor denied that Rachel L. Gross died intestate and expressly averred “ that the paper-writing referred to in said petition is, in truth, the last will and testament of said Rachel L. Gross.” This averment and the denial of it raised an issue as to the
factum
of the will; and the first issue transmitted was strictly within the contention thus made by the pleadings. The averment of the petition and the denial of the answer could not have had relation to any other subject than the one embodied in the issue, because each of the other grounds relied on to show that the paper was not the will of the testatrix was specifically stated and was exclusive of this question as to the
factum
of the will. The other averments involved mental capacity, and the questions as to whether the will had been procured by fraud or by undue influence. Obviously, therefore, it was not in the contemplation of any of the parties to the proceeding that the allegations and denials with respect to the paper not being the last will of Rachel L. Gross, had relation to mental capacity, to fraud or to undue influence; and there can be no doubt that the issue intended to be framed to put to the jury the finding of the
factiim
of
the will ,was the one which was framed and is now objected to.
(Decided June 14th, 1900.)
Free access — add to your briefcase to read the full text and ask questions with AI
McSherry, C. J.,
delivered the opinion of the Court.
This is an appeal from an order of the Orphans’ Court of Baltimore City. The order transmitted certain issues to the Court of Common Pleas for trial and refused to send up certain other proposed issues. Objection is made to the first of the four issues which were transmitted, because that issue, as framed, requires the jury to find whether the testatrix requested the witnesses to the will to sign it; and secondly, because the issue, which was one that related to the
factum
of the will, was not raised between the parties to the cause by the petition and answer.
The Code provides: “All devises and bequests of any lands, or tenements or interest therein, and all bequests of any goods, chattels or personal property of any kind * * * shall be in writing and signed by the party so devising or bequeathing the same, or by some other person for him, in his presence and by his express direction, and shall be attested and subscribed in the presence of the said devisor by two or more credible witnesses, or else they shall be utterly void and of none effect. ” That the testator must in some way request the subscribing witnesses to attest the will is obviously involved in this requirement. The validity of the will is made to depend upon the instrument being attested by two or more credible witnesses, and
it cannot well be perceived how it could be attested at all unless the testator directly or indirectly requested those persons who do attest it to subscribe their names to it as witnesses.. The law throws around testamentary papers the utmost precautions to prevent fraud and imposition, and it would seriously weaken these safeguards if it were held that no request at all or in any form by the testator to the subscribing witnesses were needed. But it is not meant by this that the testator should
ask
the witnesses to sign, because facts which are sufficient in law to constitute a legal request on his part are all that must be proved.
Higgins
v.
Carlton and Scaggs, 28
Md. 140;
Cramer
v.
Crumbaugh,
3 Md. 501. Whilst there must be a proper attestation which includes a request by the testator that the witnesses subscribe their names to the will, still the legal question as to what constitutes a sufficient request is left open by the issue, as was done in
Higgins' case, supra,
for the trial Court to define by appropriate instructions. In the case just referred to the caveators asked by their fifth prayer the following instruction : “ Unless the jury believe from the evidence, that the said paper-writing was attested by the subscribing witnesses at the request of the said John Higgins, they must find on the first issue for the caveators.”. This prayer was modified by the trial Court, and by the modification the jury were told that if they found certain enumerated facts those facts constituted a sufficient request on the part of the testator. In reviewing this ruling our predecessors said: “ The facts stated by the Court below, in the modification of the fifth prayer, are sufficient in law, if found by the jury, to constitute a legal request by the testator for the subscribing witnesses to attest his will. The testamentary law of this State does not require that a testator should ask them to attest it. His assent, either express or implied, is sufficient; provided, ‘ the act be done with his knowledge and not in a clandestine and fraudulent way. ’ * * * If the prayer had been granted by the Court, without the qualification an
nexed, the instruction might have misled the jury, in supposing that the law required the testator to
ask
the witnesses to sign his will — the word
request
being ordinarily understood in that sense. The Court was therefore right in stating facts, in its modification of the prayer, which, if found by the jury, were sufficient to establish in law the attestation of this will. 5
Har. & Johnson,
480; 3
Md. Rep.
501; 8
Md. Rep.
23. In
White
v.
British Museum, 6
Bing. 310, Tindal, C. J., says, that ‘in the execution of wills as well as of deeds, the maxim will hold good,
non quod dictum sed quod factum est, inspicitur.’ ”
The second objection to the issue is not more tenable than the first. The petition which assailed the will distinctly charged that “the said paper-writing is not the last will and testament of the said deceased, Rachel L. Gross, and that she, the said Rachel L. Gross, died intestate.” The answer of the executor denied that Rachel L. Gross died intestate and expressly averred “ that the paper-writing referred to in said petition is, in truth, the last will and testament of said Rachel L. Gross.” This averment and the denial of it raised an issue as to the
factum
of the will; and the first issue transmitted was strictly within the contention thus made by the pleadings. The averment of the petition and the denial of the answer could not have had relation to any other subject than the one embodied in the issue, because each of the other grounds relied on to show that the paper was not the will of the testatrix was specifically stated and was exclusive of this question as to the
factum
of the will. The other averments involved mental capacity, and the questions as to whether the will had been procured by fraud or by undue influence. Obviously, therefore, it was not in the contemplation of any of the parties to the proceeding that the allegations and denials with respect to the paper not being the last will of Rachel L. Gross, had relation to mental capacity, to fraud or to undue influence; and there can be no doubt that the issue intended to be framed to put to the jury the finding of the
factiim
of
the will ,was the one which was framed and is now objected to.
(Decided June 14th, 1900.)
There was no error committed in rejecting the issues proposed by the executor. These were, first, what part or parts of the will (if any), were procured by undue influence ; and, second, what part or parts of the will (if any), were procured by fraud. There was no averment in the pleadings to found either of these proposed issues on. It was not alleged that part of the will was invalid ; it was assailed as a whole ; and it was not contended by the executor that only part of it was valid, for it was upheld by him in its entirety. There was, therefore, nothing in the pleadings on which to found the issues propounded by the executor. Issues sent from an Orphans’ Court to a Court of law for trial “ ought to be framed concerning the persons named
cmd the matters set forth in the petition and answer.” Richardson
v.
Smith, 80
Md. 89. “An issue is formed by affirming a matter on one side and denying it on the other. This collision of statement is its very substance and essence.”
Little Sisters of the Poor et al.
v.
Cushing,
62 Md. 420. The record is totally devoid of any allegation that part of the will is void on account of fraud or undue influence. All the averments relate to the whole will and there could not be an issue framed under the pleadings as they stand to submit a question that was not in controversy. It would have been an error had an issue been made up on a subject not contested.
It follows from what has been said that the rulings of the Orphans’ Court must be affirmed.
Rulings affirmed.