Bird v. Bird

Pattison, J., delivered the opinion of the Court. On March 30th, 1926, Claudius H. Bird, deceased, and his wife, Amelia E. Bird, executed their respective wills. The wills were placed in a sealed envelope and deposited in a safe deposit box held in their joint names at the Drovers’ & Mechanics’ branch of the Maryland Trust Company, and there they remained in that condition until Claudius Bird’s will was removed by Amelia Bird, his executrix, on July 2nd, 1931, after the death of Claudius Bird on June 29th, 1931. On July 6th, 1931, the will of Claudius Bird was admitted to probate.

On November 18th, 1931, a caveat was filed thereto on the ground that such will had been revoked by a later will executed by Claudius Bird. The only issue sent to the Baltimore City Court for trial was: “Whether the paper writing dated the 30th day of March, 1926, and purporting to> be the last Will and Testament of Claudius H. Bird, deceased, was revoked after the making and execution thereof?” The ease was heard upon this issue, -and, at the conclusion of all the evidence, the jury was instructed that there is no evidence in the case legally sufficient to entitle the plaintiff to a verdict on the issue presented, and that its verdict must be for the defendant, and its answer to that issue must be “No.” It is from that ruling that the appeal to- this court was taken. Before considering the evidence offered with the view of determining its legal sufficiency as tending to establish the ³⁵¹ fact that the will of March 30th, 1926, was revoked by the testator, we will inquire as to the law applicable to the revocation of wills and how they may be revoked. The Act of 1884-, chapter 293, section 302, now section 333 of article 93 of the Code of Public General Laws of this state, provides that: “No will in writing devising lands, tenements or hereditaments, or bequeathing any goods, chattels or personal property of any kind, as heretofore decribed, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same, by the testator himself or in his presence, and by his direction and consent; but all devises and bequests so made shall remain and continue in force until the same be destroyed by burning, cancelling, tearing or obliterating the same by the testator or by his direction, in manner aforesaid, unless the same be altered by some other will or codicil in writing or other writing of the devisor signed as hereinbefore said in the presence of two or more witnesses declaring the same.” By the above provisions of the statute, the will of Claudius Bird remained and continued in force until destroyed by “burning, cancelling, tearing or obliterating the same by the testator or by his direction,” unless revoked by “some other will or codicil in writing or other writing of the devisor signed * * * in the presence of two or more witnesses declaring the same.” In addition to the above statutory methods of revoking wills, there may also be an implied revocation, as it is termed, resulting in an alteration of the estate of the testator between the time when the will is executed and when it goes into effect.

Krieg v. McComas, 126 Md. 382 , 95 A. 68 . But this method of revocation is in no sense involved in this case. The claim of the caveator, the appellant in this court, is not that the will of March 30th, 1926, was destroyed, but that it was revoked by a later will which he claims was destroyed by the wife, Amelia Bird, with the knowledge and ³⁵² in the presence of the testator. We are therefore only to consider the evidence submitted with