Harris v. Pue

39 Md. 535, 1874 Md. LEXIS 30

• Court: Court of Appeals of Maryland
• Decided: February 20, 1874
• Status: Published

Opinion

Bartol, O. J.,

delivered tbe opinion of the Court.

On the 18th day of February, 1878, the appellee filed in the Orphans’ Court of Howard County, for probate, a paper-writing, as the last will of Christopher Harris, deceased, and at the same time filed therewith a paper signed by the appellant as follows:

“I, Ann Harris, widow of Christopher Harris, knowing that the paper-writing signed in lead pencil by my said husband, and filed with the Register of Wills of Howard County, by Charles R. Pue, Jr., on the 18th day of February, 1873, embodies the desires and wishes of my said husband, in regard to the disposition of his property after his death, do hereby request that the same may be admitted to probate by the said Court, and I renounce my right to administration, with the will annexed, in lavoi\ of said C. R. Pue, Jr.

“Witness my hand, this 18th day of February, 1873.

Ann Harris.”

“ Witness :

Joseph Hunt,

Wm. H. Scott.”

Whereupon the said Charles R. Pue, Jr., being examined on oath, touching the manner in which the said paper-writing or will, came into his hands and possession, and his answers being satisfactory to the Court, an order was passed admitting the same to probate without objection, and thereupon letters of administration, c. t. a., were granted to the appellee, who gave bond and qualified according to law.

On the first day of April, 1873, a petition was filed by the appellant, praying that the matter of the probate be again examined and heard, according to the provisions of the Code, Art. 93, sec. 320, that the letters of administration, c. t. a., be revoked and annulled, and for further relief. The petition alleges two grounds for relief.

First, That the petitioner, when she signed the paper filed with the alleged will, “did so in the lull trust and belief that the paper filed as the will of the deceased, set forth and contained the full testamentary scheme and purposes of her deceased husband, but in this respect she was misled and misinformed. And she has since learned, and avers and declares that said alleged testamentary paper does not set forth, or contain the testamentary scheme or purposes of her deceased husband; amongst other things in this, that it does not set forth and contain a legacy or bequest to the Rev. Hugh Griffin, of Howard County, of the sum of five hundred dollars. Also in this, that it does not set forth and contain a legacy or bequest to the Rev. Father Chappal, of St. Charles College, in Howard County, of the sum of two hundred dollars. And also, in this, that it does not set forth and contain a legacy or bequest to Hettie Shields, of Baltimore City, of the sum of one thousand dollars. All of which said legacies and bequests, the petition alleges, it was the settled testamentary scheme, purpose and disposition of the said Christopher Harris, to make, give and bequeath ; all of which was, and is well known to her, and all of which she believed were set forth and contained in the alleged testamentary paper, when she signed the pa,per filed therewith.”

Second. — The petition further alleges “that the Court had no rightful jurisdiction in the matter of probate, because the deceased at the time of his death, had no domicil in Howard County, and was not seized or possessed of any property real or personal within the limits of said County.”

The appellee in his answer to the petition, states that the appellant had “full knowledge of the contents of the paper-writing admitted to probate, and that letters of administration c. t. a. were granted to him at her request and with her approbation. He avers that he knows of no other testamentary scheme or purpose of the dt ceased, except that contained in said paper ; and submits that any such testamentary scheme or purpose can only be evidenced in the manner required and designated under the laws of the State. That the said paper-writing was prepared by the respondent at the request and earnest solicitation of the said deceased, in the presence of the said deceased, and that the same was read over to the said deceased by the respondent, and after an examination of the same by. the said deceased was signed by him. That a' copy of the said paper was likewise prepared by respondent at the same time and place, that is on the 15th day of January, 1873, and in the room of said deceased; that the said copy was prepared at the instance and request of the said deceased, and examined by him and by him signed and delivered to the respondent, with the solemn injunction that the respondent should, after the death of said deceased, carry out the purposes of said deceased as set forth and contained in said papers ; all of which was done in the presence and within the hearing of the petitioner.”

The answer further avers “that the deceased was seized of no real estate at the time of his death, and his personal property amounted to the sum of $3800, evidenced and secured by the promissory note of Gol. M. Benzinger of Baltimore City, in whose possession the said sum was at the time of the death of said deceased, and who still retains possession of the same ; and the said deceased was likewise possessed of a few articles of household furniture of very small value, which- he has delivered into the possession of the petitioner.

The answer avers that the deceased was at the time of his death a resident of Howard County, that he had resided therein for more than a quarter of a century, and always regarded the said County as his home ; that at the time of his death, he had only been beyond the limits of the-County for a short time and for a temporary purpose ; and that the petitioner, the day the deceased was buried, returned to said County, and has been in said County since residing,” &c., and prays that the petition be dismissed, &c.

The case was set down for hearing, and testimony produced upon both sides ; and the Orphans’ Court on the 19th day of June, 1873, ordered and adjudged that the petition be dismissed. From this order the present appeal was taken.

We have set out the averments contained in the petition and answer, at greater length than usual, in order that it may clearly appear what are the questions at issue between the parties, which we shall now proceed to consider.

As to the alleged want of the jurisdiction of the Orphans’ Court.

This objection, though made in the petition, has not-been pressed in the argument by appellant’s counsel. It appears from the evidence that the deceased, had made his home in Ellicott’s Mills in Howard County for some years; a few months before his death, he and his wife went to Mr. John W. Jackson’s in Baltimore County ; and remained there till his death. But the proof shows that the house of Mr. Jackson was regarded by the deceased only as a temporary home. He so stated'to Dr. Burns his physician, who testifies that he always claimed Howard County as his place of residence, and expressed his intention to return there as soon as he could find a place. Similar expressions by the deceased as to his domicil are proved by Dr. Thomas Owings and Edward H. Soper. On this subject there is no contradictory proof. The jurisdiction being established, the only question to be considered is whether the paper-writing was properly admitted to probate, as a valid will to pass personal property ? The deceased at the time of its execution was seized of no real estate, and the instrument, therefore, could have been intended only to operate upon personal jmoperty.

It was executed on the 15th day of January, 1873, and Mr. Harris died on the 13th day of February following; there is no question as to his testamentary capacity, though eighty-six years old, he appears to have retained his faculties unimpaired. Dr. Watkins, who saw him not more than two or three weeks before his death, testifies that “he was then of sound and disposing mind;” and Dr. Burns, who attended him in his last sickness, says, “he was of clear, strong mind; even in his last illness he was of clear mind; he was of sound and disposing mind up to the last moment I saw him ; I never saw him otherwise than of sound mind.”

The paper admitted to probate is as follows:

‘ ‘ Ellicott City, Jan. 15th, 1873.

“ Charles R. Pue will, at the death of myself and wife, distribute to each of the undersigned persons, the sums of money stated after each name, to-wit:

“To Rev. Father Griffin, -;

“ “ “ Father Chappal, -;

“ “ Hetty Shields,-;

“ “ Mrs. Phelia Kennedy, one hundred dollars.

“ “ St. Joseph Orph. Asylum, (Franklin Square,) two hundred and fifty dollars, ($250 00.)

“The amounts to be written hereafter to each of the three above named persons.

“Chas. R. Pue, Jr., to bury us and to see that all debts for funeral expenses be paid first, then to pay the above, and all money remaining thereafter to be kept for himself. Should I die first, Chas. R. Pue is requested to take charge and look after my wife’s welfare. Col. Benzinger will pay C. R. Pue, Jr., all money in his hands belonging to me at my death.

“ Christopher Harris.”

(Signed in lead pencil.)

Charles R. Pue, Jr., states in his testimony that the paper was written by him, on the request and at the dictation of Mr. Harris ; that he was sent for on that day by Mr. Harris, and went immediately; on arriving at the house he met Mr. and Mrs. Harris, (the appellant,) and while they were yet standing together, Mr. Harris took out of his inside coat-pocket two sheets of paper, saying at the same time, “Come, Charley, I want you to write my will now;” then asked for pen and ink, which were brought, then, after trying if he could write his name with a pen, and failing, because the pen caught in the paper, the witness remarked that he could sign with a pencil. The witness, after dating the paper, proceeded to write, word for word, as dictated to him by Mr. Harris, until he had written the $250 to the St. Joseph’s Orphan Asylum ; when Mr. Harris went on to give further directions, and the witness thinking he had overlooked the three blanks, asked him if he was not going to fill them up; he replied, “that could be done at anytime,” or something to that effect, saying, “1 don’t know what amount I will leave them; I am going to take care of you, and I don’t want to lessen that amount;” the witness then wrote the words, “The amounts to be written hereafter to each of the three above named persons.” Mr. Harris then went on and finished dictating the will. The witness then read it to him, and asked him if it was right? he said it was ; then the paper was handed to him requesting him to read it himself. He then took the paper up in his hand, and pointing to the other sheet of paper, said, “write me one after this,” referring to the paper he had in his hand. The witness asked him what he wanted with two wills, he said that he lost one, it had been destroyed on him, and he would beep one himself, and wanted witness to keep the other, so that if the one he had was lost, the witness would know, upon his death, what to do. While he was reading the paper he had in his hand, witness went on to write one just like the one he was reading, from memory. After he had finished reading, witness compared them and found he had omitted “Col. Benzinger will pay to Charles R. Pue all money in his hands at my death belonging to me.” These words were added. He then signed the papers. The witness then folded and put the paper he had last written in his pocket; Mr. Harris took the one first written and put it in his pocket. When the witness was taking leave of him he said to witness “keep that will safe. ’ ’

The witness testified that the signature to the paper admitted to probate is the signature of the deceased, that he saw him sign the same.

The duplicate paper was produced by the witness, also signed by Christopher Harris, in lead pencil. The papers are precisely of the same import, and almost literally the same.

These are the circumstances attending the execution of the paper as testified by Charles R. Pue, Jr.

From this testimony it appears that the will was written at the request, and by the dictation of Mr. Harris, and was signed by him in the presence of Mrs. Harris, the appellant.

These facts do not rest entirely upon the evidence of Charles R. Pue, Jr., but in many particulars are corroborated by the testimony of other witnesses, who are disinterested.

Dr. Burns, the attending physician, testifies that in January, Mr. Harris told him in the presence of Mrs. Harris, that “he intended to send for Charley to fix up his affairs,” that knowing it would be Mr. Harris’ last illness; witness afterwards reminded Mrs. Harris of the conversation of Mr. Harris with witness, (in her presence,) about sending for Charley and making his will; and she replied “that Charley came out the next day and made the will, and that every thing was in Charley’s hands,” that both Mr. and Mrs. Harris in speaking of Charles R. Pue Jr., always called him “Charley.” The same witness testifies that on the Monday after Mr. Harris’ death, when Mrs. Harris, (the appellant,) was at Mrs. Heavy’s, she sent for witness and told him “to make out his bill and send it to Charley, that every thing was in Charley’s hands.”

This evidence conclusively proves, that the appellant was cognizant of the making of the will, and confirms the testimony of Charles R. Pue, that it was written and executed in her presence. There is another fact which shows her knowledge of the existence of the will. Alfred W. Pue, a disinterested witness, who was present when the will was found, states that he went with his brother Charles to Mrs. Heavy’s, where Mrs. Harris was staying, and his brother stated to Mrs. Harris, “that the will was not found in the trunk where she said it was, but was found by mere accident in the bureau drawer, she replied, “oh! 1 put it there and forgot it.”

Mrs. Harris, in her evidence, states that she had never seen the will, and makes many other incoherent and contradictory statements, both with regard to the will, and the paper signed by her and witnessed by Hunt and Scott. But an examination of her evidence demonstrates that either from her extreme age, or her feeble health, her memory is altogether unreliable.

The facts to which we have adverted, prove that the paper was executed by Christopher Harris, at the time and in the manner testified to by Charles R. Pue, Jr.

The petition does not allege that the signature thereto is not the signature of Christopher Harris, and in addition to the positive testimony of Charles R. Pue, Jr., the genuineness of the signature is proved by several witnesses.

The paper remained in the possession of Mr. Harris, and in the afternoon of the funeral, was found in the room which had been occupied by him in the house of Mr. Jackson.

Upon this state of facts, the question whether the paper was properly admitted to probate, would seem to be of easy solution.

As said by Judge Buchanan in Tilghman vs. Stewart, 4 H. & J., 173, “to constitute the paper a will, it must appear that the deceased possessed animum testandi, at the time it was written ; and that he intended the paper as it stood to be his will, without looking to any thing further to be done in order to perfect it.” That is to say, if the deceased intended the paper in its present form, as dictated and signed by him, to operate as his will, notwithstanding the blanks; then it is a good and valid will of personal property. In such case the existence of the blanks does not defeat the will ; although the particular bequests to Father- Griffin, Father Ghappal and Eettie Shields being in blank, must fail for uncertainty ; the other bequests being clearly expressed, and being in no manner connected with., or dependent upon those in blank must have effect, if (as we think there is no reason to doubt,) such was the intention of the testator. This rule is clearly stated by all the judges in Tilghman vs. Stewart, 4 H. & J., 156. In this case the blanks have no significance or effect, except as some evidence tending to show that the deceased might have considered the paper as an unfinished and incomplete act, and might not have intended it to operate as a will until the blanks were filled up.

But the proof in our opinion clearly shows that the deceased intended the paper as it stood, to operate as his will. No doubt at the time he dictated the will, he had an undefined intention of filling the blanks with some specific sums before his death ; but it is very evident from all the proof in the case, that “ he did not intend to die intestate, if the blanks were never filled.” The paper is not unfinished and incomplete, it disposes of his whole property, and names the residuary legatee. It.was signed by the testator, a duplicate was prepared at his request, signed by him, and delivered into the custody of Charles R. Pue, with the injunction to take care of that will, “so that if the one in his own possession should he lost, he, (Charles R. Pue,) would know upon his death what to do.” It is impossible to construe these acts of the deceased in any other way, than as expressing his settled purpose and intention that the instrument as executed, should operate as his will.

If to these be added the facts proved by Dr. Burns, to which we have before referred, that the deceased declared to him, in the presence of Mrs. Harris, his intention to send for Charles R. Pue to fix up his affairs; and that Mrs. Harris informed him afterwards, that Charles R. Pue had “ been out the next day and made the will, and that everything was in Charley’s hands.” And the further fact that the paper was kept unaltered in the safe custody of the deceased until his death ; the conclusion is, in our judgment, irresistible that the deceased intended the paper as it stood to operate as his will ; and that it was so regarded by the appellant.

In the consideration of this case, we have referred to the testimony of Charles R. Pue, as establishing many of the facts upon which the validity of the will depends. Although a beneficiary under the will, he is made by the Act of 1864, chap. 109, a competent witness to sustain it; as was decided at the last term in Estep vs. Morris, 38 Md., 417.

That decision was the necessary result of the broad and comprehensive terms of the Act of Assembly. It seems to us, however, that it would be eminently wise and expedient for the Legislature, so to amend or modify the Act, as to except from its operation parties who may be interested as beneficiaries under a will, and render them incompetent as witnesses to prove the same. Reason and good policy demand that there should be thrown around such instruments, the safeguard and protection which may be secured by requiring that they shall be evidenced by the testimony of disinterested witnesses.

As the law now stands, Charles R. Pue is a legal and competent witness, and his testimony is entitled to be considered by us in forming our conclusions upon the case.

There is much force in the argument of the appellant’s counsel, that upon principles of public policy, where a testamentary paper has been prepared by a party, who is the principal beneficiary under it, and is supported by his own testimony, the utmost care should be observed, and the circumstances attending the preparation of the paper ought to bé free from every ground of doubt or suspicion of fraud or unfairness. In the present case, however, no fraud or undue influence on the part of the appellee is charged or suggested in the petition ; nor is there in the testimony any ground for such a charge. The paper was not prepared in secret; but in the presence of the appellant, in the very words dictated by the testator, at a time when he was in the full possession of his faculties; was signed by him after he had carefully read it; kept in his possession, and after his death found in the place where the appellant herself had put it, as his will.

A. good deal of evidence was produced, with regard to the various and changing purposes expressed by the testator during his life, as to his intentions of disposing of his property; and proof was offered of several wills which had been made by him, in one of which, nothing was given to the appellee.

It is very obvious that this proof cannot affect or impair the validity of the paper before us ; if as we have said, it is clear from the whole evidence, it was executed by him as his last will, and was intended by him so to operate. It appears from the proof that between him and the appellee there existed the closest and tenderest relations, that the appellee had been taken in his infancy into his family, and reared by him and Mrs. Harris, who were childless, as if he had been their own child. That the testator had set him up in business, and always spoke of him as “his boy,” and expressed a just pride in his respectability and his success in life. These feelings towards the appellee, both on the part of Mr. and Mrs. Harris, continued up to the time of his death, as proved by several witnesses, especially by the physicians, and the nurse, and others who had the best opportunity of knowing his real sentiments towards the appellee; and although other witnesses have testified that he sometimes said he had done enough for Charley, and would give him nothing more; it is evident that such expressions proceeded from mere momentary feelings of pique, on account of some fancied slight or neglect on the part of the appellee, who continued to be the chief object of his confidence and affection, and of this the will before us was the most natural expression.

(Decided 20th February, 1874.]

Being satisfied after a careful examination of the case, that the paper was properly admitted to probate as the last will of Christopher Harris, the order of the Orphans’ Court will be affirmed.

Order affirmed.