Weems v. Weems

19 Md. 334, 1863 Md. LEXIS 3

Opinion

Cochran, J.,

delivered the opinion of this Court:

This appeal is from an order of the Orphans’ Court for Baltimore city, refusing to admit to probaira paper purporting to be the last will and testament of Gustavus Weems. The testator, whose estate consisted of personal property, left three brothers, Mason L. Weems, Theodore Weems, George W. Weems, the appellant, a sister, Margaret Jones, and George Weems, the son of a deceased brother, caveators and appellees.

The alleged grounds of objection to the probat of the will, were, that the testator was not possessed of a sound disposing mind at the time of executing the paper pro pounded as his will, and that he did not at that time know nor understand its provisions and contents.

Among the undisputed facts in the case, we find that the testator, who had become greatly enfeebled in body and mind, by long continued and severe illness, gave in-' StrUctions, on the morning of the 3rd of July 1859, for the preparation of his will; that the paper propounded as such was prepared in accordance with the instructions given, and executed by him late in the evening of the same day. The life of the testator terminated on the 6th of July, three days after the execution of that paper.

Evidence was taken on both sides, to show the physical and mental condition of the testator for some time previous to and at the time he executed the will.

Mason L. Weems, after executing a release of his wife’s legacy to the executor, was examined by him as a witness,14* under an objection taken by the caveators' to his competency, on the ground of interest. His opinion as to the testator’s testamentary capacity, offered as a part of his evidence, was also objected to, on the ground that the facts and circumstances upon which it was founded, were not seated. The competency of this witness depends upon the effect of his release of the legacy to the executor. In our opinion, the execution of that instrument must be considered as effecting an absolute and complete extinguishment of all right to the legacy under the will. At law, the right of a husband to release a legacy bequeathed to his wife, so as to bar her interest in it, is indisputable. Chamberlain vs. Hewson, 1 Salk., 115. Gray vs. Acton, Ib., 325. 4 Viner, 44. Shep., Touch., 333. This power of a husband over money to which the wife might become entitled by bequest, does not ajjpear to have been restricted in this State by any Legislative Act, until it was suspended by the 2nd sec. of Art. 45 of the Code, which provides that property bequeathed to a wife shall be held for her separate use. The provisions of the Act of 1853, ch. 245, operated to protect the property of a wife thus acquired from the creditors of the husband, but did not affect the husband’s marital rights or power over it. Schindel vs. Schindel, 12 Md. Rep., 294. We think the release of the legacy in this case, rendered the husband of the legatee a competent witness for the executor, and that his evidence must be admitted. The principle upon which the appellees objected to the opinions of the witness as evidence of the testator’s capacity, must be admitted, for in general, the mere naked opinions of persons not occupying the position of professional medical attendants, as to the testamentary capacity of a testator whose will may be controverted, are not admissible. Brooke vs. Townsend, 7 Gill, 27. Dorsey vs. Warfield, 7 Md. Rep., 73. But this is a case in which the principle relied on does not apply. The witness was the brother of the testator, and they, with the other brothers, had been and were engaged in conducting a joint business, though their interests might have been several. The intimacy of the witness with the testator having continued during the life .of the latter, and afforded opportunities for judging of the testator’s mind, and of changes occurring in its condition, it can scarcely be said that his opinion, being the result of actual knowledge, was not admissible. It is not necessary, however, to rely on these considerations alone, as the witness has stated in his testimony facts and circumstances sufficiently fortifying his opinion to render it competent evidence.

The witnesses, Weems, Leitch, and Dr. Wilson, offer not only their opinions as to the testator’s capacity at the time of executing the will, but state the particular circumstances and facts upon which their opinions were founded; and their evidence as to the condition of the testator at that time, is strongly supported by that of the other witnesses. The opinion of Dr. Wilson was formed after he had ex- aruined the testator for the sole purpose of determining his-mental condition, and that of Leitch by the testator’s answers to questions in regard to the disposition of his property by the will prepared under his instructions, put for the purpose of testing his understanding and memory. From the evidence of these witnesses, considered with that of Mrs. Hosting, we must conclude that the testator did not know nor understand the purport of the paper executed by him, and that from mental weakness and loss of memory, he was then incapable of making a rational disposition of his property, or of executing a valid will. His mind does not appear to have been subject to any hallucination or delusion, but the evidence shows that he was unable to remember in proper connection such facts as were necessary to the origination and execution of a rational testamentary purpose. This condition of the testator’s mind was unquestionably induced by the severity of the disease from which he was suffering. On the preceding day his illness had much increased, and from the evidence of -the physicians, we cannot doubt that at the time the will was executed, his increasing physical weakness had so involved and disturbed the operation of his mental faculties, that in contemplation of law, he was incapable of executing such an instrument. There is no evidence, however, that the testator’s mind was so impaired before the persons called to witness the execution of the will, had been assembled. Apart from the presumption of law, that the testator was possessed of a sound mind until the contrary was proved, we think it appears from the evidence of his antecedent condition, that he was capable of making a valid will until the latter part of the day on which the will was executed. Dr. Wilson, although he had seen the testator professionally some two or three hours before, was careful to confine his testimony as to the testator’s mental condition to the time when he was called to witness the will, and to state that the weakness of the testator, consequent upon his disease, had then become so manifest that he thought a conversation with him was necessary to determine whether his mind was in a fit condition to make a will. Nothing in the previous condition of the testator appears to have excited any suspicion of mental infirmity or unsoundness, while on the other hand the witnesses, with the exception of Mrs. Hosking, speak of his condition, which they inferred from liis conversation and conduct, as entirely rational. Leitch, who had for a long time been intimately acquainted with him, states that he received his instructions for having the will prepared, in a conversation which lasted some fifteen or twenty minutes, and that in his judgment the testator was then perfectly competent to make a valid deed or contract. The testimony of Mr. Hurst, and that of Mason L. Weems, also tends to prove the same fact. The latter says that he spent the greater part of Saturday night with the testator, and was with him on Sunday, and that he saw no change in the state of his mind until about two or three o’ clock of that day, when he first observed that he seemed to be “very weak and forgetful.” The evidence of Mrs. Hosking, as to the state of the testator’s mind on Sunday morning, is not supported by that of any other witness. The testator’s listlessness, whimsical questions, and complainings, undoubtedly gave rise to her opinion that his mind was impaired, hut those manifestations may have been only those of a mind in passive sympathy with physical suffering, and not such as would indicate its unsoundness when roused from that state to the consideration of important subjects.

Looking to the whole evidence, we conclude that the testator had sufficient strength and soundness of mind to dispose of his property by will when he gave instructions for preparing the paper propounded as his will, and that he actually intended to execute that paper when written as his will, which intention, in the absence of any circumstance or evidence to the contrary, we must presume, continued until he was deprived of the capacity to execute such an instrument by what is technically described as the “act of God.” Having determined from the evidence the material facts in the case, we have to consider whether, upon these facts, the paper propounded as the last will of Gustavus Weems, can be admitted to probat. It was objected in argument, that the admission of this paper to probat would be in violation of the purpose and policy ol the Act of 1810, ch. 34. We do not think so. The design oi that Act was not to restrict or defeat actual verbal bequests, but to declare and fix the extent and kind of evidence necessary to establish and make them effective. Taking into consideration the common infirmities of memory, and the tendency of witnesses to infer testamentary purposes from vague and uncertain words, and the fact that these circumstances tend to induce as well as afford facilities for setting up alleged verbal wills, in fraud of rightful distributees, the propriety of the Act is obvious; but it is difficult to perceive upon what ground either its purpose or policy, in requiring a given amount and kind of evidence to establish a verbal or nuncupative will, is violated by the probat of a written will prepared in accordance with the testator’s instructions, but not completed by him, because of his subsequent deprivation of the legal capacity to execute it. The present case in no respect seems to be within the purview of the Act upon which that objection of the caveators was taken, and it must therefore be determined upon principles which govern cases where the testamentary purpose of executing particular wills, is prevented by the “act of God.”

Upon the proof that this paper was drawn in accordance with the testator’s instructions, the objection that it was not read to and approved of by him at a time when he had capacity to understand and adopt it as bis will, does not, in our opinion, defeat its operation as a valid testamentary paper. It was drawn by the testator’s orders, and contains the particular bequests directed by him to be inserted, and although he may not have read or heard it read when he had capacity to understand and adopt it as his will, yet, if from all the evidence in the case, it is found to express his actual testamentary purpose, until he was deprived of that capacity, in principle, there would seem to be no objection to admitting it to prohat. Most of the cases of unexecuted testamentary papers propounded for probat, have turned on the proof of the fact, that an actual testamentary purpose was expressed or indicated by the paper propounded, and not upon the particular kind of evidence by which that fact might be established.

The reading and approval by the testator of the paper prepared under his instructions, would be conclusive evidence upon which the paper would be entitled to probat as his will, but it by no means follows that such reading and approval was necessary, if from other evidence in the case it is shown to be the will be intended to execute, during the continuance of his capacity to do so.

In the case of Plater vs. Groome, 3 Md. Rep., 143, the Court said, that to constitute a good will for personal property, “the paper must he either complete on its face, or it must appear, if incomplete or defective, that it was intended by the testator that it should operate as his will in its unfinished or imperfect state, or that he was prevented from completing the contemplated formalities by being* overtaken by sickness or death, or some other casualty.”

In the case of Allen vs. Manning, 2 Eng. Eccles. R., 391, 2 Addams, 490, note, the instructions and draft of a will were propounded, the latter of which was objected to on the ground that the testator had never seen it, but the objection appears to have been overruled, and tbe draft of the will, in place of the instructions, pronounced for by the Court. And where a legacy was inadvertently omitted from a properly executed will, the will was reformed in that respect, so as to admit payment of the legacy, upon proof that it was in accordance with the true mind and intention of the testator. Bayldon vs. Bayldon, 2 Eng. Eccles. R., 509. The judgment of the Court of Appeals, in the case of Barnes vs. Crouch, at June term 1834, strongly supports the conclusion to which we have arrived. It appears from the statement of the case in Dorsey’s Test. Law, 60, that the testator, Davis, gave verbal instructions as to the disposition of his property, and desired a magistrate to be called to prepare his will in accordance with them. The magistrate was called, and prepared the will in accordance with the instructions, as repeated to him out of the testator’s hearing, and then took it to the testator’s room, but it was neither read to nor executed by the testator, as he was then speechless and dying. That paper was then exhibited in the Orphans’ Court, and by its order admitted to probat, which order was afterwards affirmed by the Court of Appeals. • These facts are so far coincident with those in this case, that we can see no reason why the principle recognized in the determination of that case should not now govern us. It is true that the Court filed no opinion showing the particular grounds on which they affirmed the order of the Court below, but notwithstanding that fact, the case as finally adjudicated, in our opinion, constitutes a precedent and establishes a principle which we are not at liberty to disregard. In the present case, the verbal instructions of the testator were at his request formally and accurately expressed in the paper propounded as his will; and with evidence amply sufficient to justify the inference that the paper was prepared during the continuance of the testamentary purpose it expresses, though not completed for want of capacity to execute it, there is, in our view of the authorities referred to, no apparent reason why it should not be permitted to have effect as a valid will.

( Decided January 21st, 1863.)

Upon a careful consideration of the whole case, we must reverse the order of the Court below, and remand the case, the costs to be paid out of the estate, so that the paper propounded as the will of Gustaras Weems, may be admitted to probat, in accordance with this opinion.

Order reversed, and cause remanded.