Devecmon v. Devecmon

Question as to Testamentary intent; and whether a Will to pass Leasehold Estate must be attested as required by Art. 93, see. 301, of the Code — Leasehold estate not embraced hy the terms of secs. 298 and 301 of Art. 93 of the Code — How Terms for years may be created by Will— Terms for Years in esse. A paper propounded for probate as a will was in the hand-writing of the deceased, and complete in every respect, even as a will to pass real estate, with the single exception of the failure to execute it in the presence of witnesses. It was signed and sealed by the deceased with an attestation clause appended, and indorsed in his own hand-writing as his will. The estate of the deceased consisted mainly of personalty, — part being leasehold,— and a small amount of realty. By the terms of the paper the deceased disposed of the whole of his estate, real and personal, to one person whom he appointed his executrix. On a caveat to 'the admission of the paper to probate it was Hitu>: 1st. That a presumption arose from the attestation clause appended to the p'aper, that the deceased intended to execute it in the presence of witnesses, and that it was incomplete in his apprehension of it, even as a will to pass personal estate, until it was so executed. 2nd. That such presumption was strengthened by the instrument purporting to dispose of both real and personal property. 3rd. That such presumption is one of fact only and may be rebutted or repelled by extrinsic evidence. 4th. That any evidence that the deceased was prevented from completing the paper by death,or other sufficient cause, apart from a change of intention; or that he intended it to operate as his will in the form in which he left it, will repel the presumption against the paper and entitle it to probate, to have operation to the extent that the law will allow without other formalities than those that have been observed in its execution. 5th. That the whole inquiry in such case resolves itself into one of intention; and evidence of any act or declaration of the deceased, in respect to the paper propounded, is receivable for the purpose of showing what his real intention may have been in regard to it. ’6th. That notwithstanding by the terms of the instrument it is made applicable to both real and personal estate, if the evidence clearly shows that the deceased recognized and adopted the paper, in its present form, as his will to -pass his personal estate, and that a more formal and complete execution of it was intended solely for the purpose of making it operative as to his real estate, then the paper is not to be regarded as incomplete with respect to the personal property, but as to the real estate alone. TOi. That where the paper creates a common fund of real and personal estate, or where the disposition of real and personal estate is so blended that the intention of the deceased in respect to the one estate is made dependent upon the other, in such cases if the instrument cannot operate as to both estates by reason of defective execution, the Courts are strongly inclined to reject the paper in toto, and nothing short of the strongest proof of design on the part of the deceased will induce the Courts to admit the instrument to probate as to the personal estate alone. Although (he paper purported to dispose of both real and personal estate, it was all to one person, and the scheme of the will, as to the personalty, was in no manner affected by its failure as to the realty. The proof in the case was entirely conclusive in support of the paper as a valid diposition of personal estate Held: That the Orphans Court was right in admitting the paper to probate, as sufficient to pass chattels, both real and personal. Leasehold estate is not embraced by the terms of sections 298 and 301 of Art. 93 of the Code relating to wills. Terms for years cannot be created by will unless the instrument be executed with all the formalities required to pass real estate But terms for years in esse may be bequeathed by any will or testamentary paper which is sufficient to dispose of personal property.

Appeal from tlie Orphans’ Court of Allegany County. The case is stated in the opinion of the Court. Very little importance is to be attached to the declarations of the deceased, as to the disposition he intended or had made by the will of his estate. Pemberton vs. Pemberton, 13 Vesey, 301; Colvin vs. Fraser, 2 Hagg., 150; Daniel vs. Nockolds, 3 Hagg., 777. The will in controversy is not a good will, even of personal property, unless it can be shewn affirmatively that the testator intended it to operate in its unfinished condition ; the paper is upon its face incomplete and unfinished, and as such the presumptions of law are against it. In this case the presumptions are exceptionally strong against the will, because both real and personal property are devised ; (1 Williams on Executors, 60 ;) the testator was a lawyer, and well knew that as to a great part of the property undertaken to be devised, the will was absolutely void without witnesses; the presumption is strong, that he merely had this paper prepared to be executed, should he finally make up his mind to dispose of his property in that manner, a presumption further strengthened by the fact that the attestation clause was affixed to the will; (3 Md., 144,) and by the fact that it was not a case of oversight or forgetfulness, as the disposition of his estate seems to have been a matter constantly in bis mind, especially so towards the last days of his life. Jin the case of Morsell vs. Ogden, 24 Md., 377, the doctrine as laid down by Justices Martin and Buchanan, in the case of Tilghman vs. Stewart, 4 H. & J., 165, is adopted as the true rule of law in Maryland. See Daniel vs. Nockolds, 3 Hagg., 777; 1 Williams on Exec’s, 60, 64 and 65; Tilghman vs. Stewart, 4 H. & J., 166, 173; Plater vs. Groome, 3 Md., 143 and 144; Morsell vs. Ogden, 24 Md., 382; Matthews vs. Warner, 4 Vesey, 186 and 197; Matthews vs. Warner, 5 Vesey, 23; Barnes vs. Syester, 14 Md., 527; Stokes vs. Perry, 1 Merivale, 507; Roberts on Frauds, 453; Coles vs. Trecothick, 9 Vesey, 249; Wade vs. Overton, 1 Merivale, 513; Walker vs. Walker, 1 Merivale, 503; Bragg vs. Dyer, 3 Haggard, 78; Roose vs. Moulsdale, 1 Addams, 129; Modern Probate of Wills, 32, 39, 41, 47, 51, 56, 57; Public Ad’mr vs. Watts & Leroy, 1 Paige, 368. Even if the paper propounded by the appellee is a good will of personalty, yet the order appealed from is erroneous, for it admits the will to probate, not only as to personalty, but as to leasehold property. The order is comprehensive and admits the paper as to personal estate and leasehold estate, which of course embraces all leasehold estate of every kind of which the deceased may have died possessed, whether the same be for a term, certain or uncertain. It is not denied that it has been long settled in England, .that leasehold property is not within the 5th section of the Statute of Frauds, but it by no means follows, that this Court will follow the same reasoning as to the construction of sec. 301, of Art. 93 of the Code. In England, at the time these questions were agitated, leasehold property was of little consequence, compared with the vast interests now involved in that species of property in Maryland, for there “ chattel interests in land on account of their original imbecility and insignificance were deemed personalty, and as such, were disposable by will.” In Maryland the same formal deed is required to convey leasehold above seven years, as is requisite for conveyance of the fee-simple. Apart from any reasoning in the 'English cases, and of the great interest now and not then attached to property of this kind, this question comes before this Court in a different aspect from any presented to the English Courts in the construction of the Statute of Frauds. The 5th section of the Statute of Frauds, is not now of force in Maryland; it has been superseded by sec. 301, Art. 93 of the Code, between which, and the law of which it takes the place, there is a very vital difference which can be best shewn by considering them separately. The 5th section of the Statute of Frauds, provides that “all devises and bequests of any lands or tenements, devisable either by force of the Statute of Wills, or by this Statute, or by force of the custom of Kent, or the custom of any Borough, or by any particular custom, shall be in writing, signed by the party devising the same * * * and attested by three or four credible witnesses.” It is clear that the words “devisable by the Statute of Wills, or by this Statute, or by the custom of Kent, &c.,” are words of limitation, and only such lands and tenements as were devisable by force of the Statute of Wills, &c., were within the meaning of the said 5th section of the Statute of Frauds — leasehold property was not devisable by any of the statutes or customs referred to, but was devisable at common law, consequently leasehold property was not within the meaning of the 5th section of the Statute of Frauds, This being the reasoning of Lord Hardwicks in Tufnell vs. Page, 2 Atyldns, 37. On the other hand, the 301st sec. of Art. 93 of the Code, provides, that “all devises and bequests of any lands or tenements devisable by laiv, shall be in writing, signed by the party so devising the same, * * * * and shall be attested and subscribed in presence of said devisor, by three or four credible witnesses.” Being identical with the 5th sec. of the Statute of Frauds, except that the words “devisable by law,” are substituted for the words, “devisable by Statute of Wills, this Statute, dec.” ■ And as the words “devisable by Statute of Wills, &c.,” qualified and limited the meaning of words, “lands and tenements,'” in said section of the Statute of Frauds, so precisely and certainly do the words “devisable by law,” qualify and make certain the meaning of the words “lands and tenements,” in our law; (Code, Art. 93, sec. 301;) and when it is ascertained what lands and tenements are devisable by law, it will be clear what character of tenements are within the meaning of the provision of the Code in question. ■ Art. 93, sec. 298, of the Code, provides, that “ all lands, tenements and hereditaments, which might pass by deed, or which would, in case of the proprietor’s dying intestate, devolve on his or her heirs or other representatives * * * shall be subject to be disposed of, transferred and passed, by his or her last will, testament or codicil, under the following restrictions.” As a leasehold estate is a tenement which might pass by deed, or descend to the representative of the intestate owner, and further, as sec. 301, Art. 93, contains, or rather is one of the very restrictions comtemplated and referred to by sec. 298, Art. 93, the conclusion is fairly reached that leasehold estates are within the meaning of sec. 301, Art. 93 of the Code, and that such estate will not pass by virtue of the paper propounded by the appellee, as the last will and testament of William Devecmon. The objection to probating this paper as a will is that it purports to dispose of real as well as personal estate, and has the attestation clause for three witnesses, but has not been acknowledged before them and signed by them. If there is any case where a paper purporting to dispose of real and personal estate but not executed so as to pass the former, can be admitted to probate this we think must be such a case. The paper is all in the hand-writing of the testator, dated, signed and sealed ; its identity absolutely proved; repeated declarations from its date down to the testator’s death that it was his will, and that it was a good will of personal estate. No room is left to doubt of the animus testandi. What more does the law require? It is not necessary that a will of personal estate should be signed or even be in the hand-writing of the testator. This paper has certainly, so far as its execution is concerned, more than the law requires to make it a will of personalty. See Weems vs. Weems, 19 Md., 334; Brown vs. Tilden, 5 H. & J., 371; Boofter vs. Rogers, 9 Gill, 44; Harris vs. Pue, 39 Md., 535. The fact that the proposed paper includes real as well as personal property, and is not so executed as to dispose of the real property, merely raises a presumption that the deceased might not have intended the paper to operate as a will even as to the personalty until it was attested so as to be valid as to the real estate. But this is a slight presumption only and easily removed by proof to the contrary. Very slight circumstances have removed it in well decided cases, and none of them have such overwhelming proof of the intention of the deceased party that the will should operate in its imperfect state as the record in this case furnishes. Visitors of Free School vs. Bruce, 1 H. & McH., 509; Watts & Leroy vs. The Public Administrator, 4 Wend., 168; S. C., 1 Paige, 347; Jones Robinson vs. Kerr, 4 Devereux (L. Rep.,) 304; Fatheree and Wife vs. Lawrence, 33 Miss., 586; Guthrie vs. Owen, 2 Humph., 202; Brown vs. Tilden, 6 H. & J., 371; Buckle vs. Buckle, 3 Phil., 323; Doker vs. Goff, 2 Add., 42. Any declaration of the party that he intended the paper to operate as his will is a sufficient publication though imperfect on its face. Read vs. Phillips, 2 Phil., 122; Harris vs. Bedford, 2 Phil., 177; Bone & Newsam vs. Spear, 1 Phil., 345 In the cases in this Court where unattested and incomplete papers relating to real and personal property, have been refused probate as to the personalty, no direct evidence was furnished to the Court that the party adopted or declared the particular paper to be his will, or intended it to be operative in its unfinished state. It is objected to the order of this Court that it admits the will to probate as to “personal and leasehold estate.” It ought to be reasonably certain at this day that leasehold estate is personal estate. Leasehold is assets and goes to the executor or administrator. Co. Lit., 111 b.; 1 Lom. Dig., Tit. 7, ch. 1, sec. 18, 19; 2 Blk. Com., 16, 384; 3 Blk. Com., 144, 152; Hewitt’s Case, 3 Bland, 184; Williams vs. Holmes, 9 Md., 287; Guy’s Case, 5 Mass., 419; Reynolds’ Widow vs. Com’r of Starke County, 5 Ohio, 204; 7 Smedes and Marsh, 479; Neal vs. Hagthorp, 3 Bland, 561. The will in its efficient form was the invention of those wonderful legislators, the Roman people ; it was a most powerful instrument in modifying society by its plastic influence on proprietary right, and was therefore un'suited to the system of tenures established in England after the conquest and disappeared as to real estate until the Acts 32 and 34 Hen. 8th, restored it. But both testate and intestate succession to personalty always remained under the jurisdiction of the ecclesiastical courts ; and they always allowed and enforced wills of personal estate. And leasehold estate was always included in the term personal, and freely disposed of by will before as well as since the Statute of Hen. 8th, which has no reference to leasehold or other personal estate of any kind. The same distinctions as to what is real and what is personal, came from England with the colonists, and entered into and form a part of our system. The words, lands, tenements and hereditaments used in the sections of the Code, and previous legislation relating to wills, are the technical and apt words to describe real estate as contra-distinguished from leasehold and other personal. 2 Blk. Com., 16; Powell on Devises, 6 marg.; 1 Wms. on Ex., 1; 3 Lomax Dig., 7, 49, pl. 31; 1 Jarm. on Wills, 52 and 54 and Notes (1 Am. Ed.;) 1 Peere Wms., 575; 3 N. Y., 192; Rose vs. Bartlett, 3 Cro. Car., 393; 2 Kent’s Comm., 242; 3 Kent’s Comm., 401; Knotsford vs. Gardiner, 2 Atkyns, 450.