Storey v. Storey

30 App. D.C. 41, 1907 U.S. App. LEXIS 5491

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 4, 1907
• Docket: No. 1755
• Status: Published

Opinion

Mr. Justice McComas

delivered the opinion of the Court:

These proceedings in the supreme court of the District of Columbia holding a probate court must be affirmed, because they were regular and the rulings of the court below were right.

James Storey, who was about sixty-five years old, on February 4, 1902, executed this last will, and died on December 18, 1905. William E. Jordan, who prepared this paper, testified that James Storey came into Jordan’s office, and gave his name as James Storey, and gave him the data wherefrom he prepared the paper. Jordan had seen Storey two or three times before, in a store near by, and knew him by sight. It appears that Storey, accompanied by a granddaughter, since dead, came in a Dayton wagon to the office of Jordan and Richardson. Jordan prepared notes for the will from the directions given by James Storey. Miss Shryock, the typewriter of this firm, was present, and Jordan dictated the paper to her. When it was prepared, he read it to Storey. Jordan then called in liOuis J. Smith, and in the presence of these three witnesses, the name James Storey having been written by Jordan, Storey executed the will by making his mark,, and declared the paper to be his will, and Jordan, Smith, and Miss Shryock signed it as witnesses. Richardson, the partner of Jordan, came in at that time, and put the will in an envelope, and sealed it, and wrote words upon it (exactly what, the record does, not disclose), indicating it was the will of James Storey, and delivered it to the testator, who had given that name as his own. Storey carried the will away with him. Miss Shryock remembered that Storey came into the office along with a lady, and detailed the circumstances, telling how Storey gave directions to Jordan, and how Jordan dictated the will, and how she wrote it on the tpyewriter on three sheets of paper, which she positively identified as the will propounded. She also identified the writing on the back of the envelope as the handwriting of Richardson of the firm of Jordan & Richardson.

Louis J. Smith, the other witness, testified that the man who was introduced to him as James Storey signed the will by making his mark, and declared it his will, in his presence and in the presence of each of the other witnesses.

Newton Cornwell, of Prince George’s County, Maryland, a son-in-law of James Storey, with whom the latter lived for about thirteen years, and until two years before his death (at which time Storey moved to Washington), testified that a month before Storey left the witness’s house he told the witness that he, Storey, had made a will, and that after his death he wanted Cornwell to go to his, Storey’s, bureau drawer, and get his will and carry it into Washington to his children. On Christmas morning after Storey’s death, Cornwell found the sealed envelope in the bureau drawer, as Storey had told him, and carried it to the house of Mrs. Johnson, where gathered together Mr. and Mrs. Cornwell, James Storey, Mrs. Johnson, and Mrs. Branson, the children surviving the testator. Mrs. Johnson opened the envelope and read the will at that time. The witness identified it. Mrs. Johnson confirmed Cornwell’s statement, and added that she first learned she was executrix when she opened the envelope and read the will. The testator lived with her during the last two years of his life, and- told her, a month before he died, that he had left his will at home, in the house of her brother-in-law Cornwell, and in the bureau drawer. The will 'and the envelope in which it had been sealed, indorsed in Richardson’s handwriting, were fully identified at the trial.- We will not recapitulate the will. It is undisputed that the person who executed the will as James Storey had correctly named to Jordan, who wrote the will, his son James Storey and his daughters, and had given the names of the respective husbands of the daughters, and had correctly named all of his grandchildren, who were legatees. He had accurately described the three parcels of real estate which he owned, and there is no dispute that the specific gifts of personalty corresponded to articles belonging to James Storey. The court and jury below had no hesitation in finding the identity of the testator James Storey, and that this paper propounded was his last will. In our opinion, nobody could doubt it.

In the proceedings in the probate court, James Storey and Mary Johnson, the son and daughter of the testator, who were executors of the will, produced it and asked probate thereof. James P. Storey and Annie C. Storey, now Schley, the appellants, with Eli and James Kinchloe, made answer and objected to the probate of the will. Eli Kinchloe was appointed guardian ad litem for Herbert and Samuel Kinchloe, two resident infants, and Lemuel Fugitt, was appointed guardian ad litem for Eva M. Payne, a nonresident infant, against whom due publication had been made, and answered in the usual form. By order of the court, the caveatees, James Storey and Mary Johnson, were made plaintiffs, and these, together with Isabella Branson and Jane Cornwell, filed a waiver of notice of the trial of issues, and the caveators, James P. Storey, Annie C. Storey, Eli Kinchloe, James Kinchloe, and Herbert Kinchloe, and Samuel Kinchloe, by Eli Kinchloe, their guardian ■ad litem, and Eva M. Payne, by Lemuel Eugitt, her guardian ■ad litem, were made defendants. It is shown by the record that ;at the time the issues were framed and the trial fixed, and .at the trial, the caveatees were present in person and by their .attorneys. The caveator, James P. Storey, appeared in person .and by his attorney. The latter attorney endeavored to secure .a later day for the trial. A certain attorney had represented .all of the caveators, and, when that attorney was. disbarred, Lemuel Fugitt appeared as attorney. Fugitt and the attorney ■thereafter disbarred were both present at the time the issues were framed and the date of trial was fixed, and they then .•acted for the appellant James P. Storey.

We will not review the provisions of the Code relating to ■citation and notice. It is not necessary. There was such notice and waiver of notice and appearance in proper person and by attorneys of all the parties that the court below properly overruled the motion of James P. Storey, who alone urged this •objection. The trial proceeded, and, as we have said, resulted in a verdict sustaining the will upon all the issues.

The judgment of the court below is affirmed, with costs, .and the petition and other proceedings are hereby remanded to the court below for further proceedings.

Affirmed.