Clagett v. Hawkins

Le Grand, C. J., delivered the opinion of this court. This is an appeal from an order of the orphans court for Montgomery county, revoking letters testamentary, which had been granted to appellant on the estate of James Hawkins Jr.? ³⁸⁶ on the 22nd of January 1856. The order appealed from is dated the 12th of May 1857. The record shows that James Hawkins died, on or about the 1st of January 1856, possessed of large real and personal estate, leaving a widow, (the appellee,) and a daughter, Ara J. Hawkins, since intermarried with William S. Offut, and several grandchildren, (the issue of a son and daughter who died before he did,) all of which grandchildren are minors.

In the fall of 1852, the deceased had draughts made of four papers; one purporting to be a will, including dispositions of real and personal estate, as therein mentioned, and three deeds in which he disposed of other portions of his real and personal estate, in trust for himself for life, with remainder to his daughter and grandchildren. These papers, he declared to the draughtsman, constituted a prospective settlement of his worldly affairs, and that it rvas made on consultation with his wife, who was satisfied with the arrangement; “that the reason he did not make his last will cover all the provisions of the deeds of trust, was, that his wife had consented to execute these deeds of trust in his lifetime, and thus his wish would be carried out without any interference from any source, and that when he delivered the said deeds of trust up, he would then execute the last paper, (the will,) and they would be satisfactory to himself.” On the 26th of October 1853, he and his wife united in the execution of two of the deeds. By the draught of his will he appointed the appellant and his wife his executor and executrix. This paper, unexecuted, together Avith the deeds, remained in his possession until his death, and they were all found wrapped up together in his secretary among his papers.

On the 10th of January 1856, Ara J. Hawkins, filed her petition, accompanied by the draught of the will, asking that the appellant and appellee named as executors therein, should show cause why the same should not be admitted to probate. This was answered by appellant, detailing the conversation had by him with the deceased, and by the appellee, claiming that one paper of the series should not take effect, unless the whole stood as a full disposition, as well of the realty as the personalty. On the 22nd' of January 1856, without any order in writing, the pa ³⁸⁷ per marked A, including BCD, (the deeds,) by verbal authority were, it is contended, admitted to probate by the endorsement of the register of an envelope containing all four papers, as follows: — “Will of James Hawkins, Jr., filed lltli January, William Thompson of R., Register. Rec’d by order of court January 22nd 1856, William Thompson of R., Register.

Recorded in Liber W. T. of R., No. 2, folio 251, William Thompson of R., Register.” On the 29th of the same month, the appellee filed her renunciation of letters of administration, and on the same day, letters were granted to the appellant with copies of exhibit A, including B C D, and depositions annexed, as a copy