Cramer v. Crumbaugh

Mason, J., dissented in part, and delivered the following dissenting opinion: In the views expressed by the chief justice, upon the first four heads or divisions into which he has divided this case, I concur. Upon the fifth I dissent. I do not think there is sufficient evidence in the record to establish, that the testator had any knowledge of the contents of the paper at the time he affixed his signature to it as his last will and testament. If Crumbaugh had taken no beneficial interest under this will, all the presumptions and legal intendments would have favored the validity of the will, and I would not have hesitated to have pronounced it good.

While it is clear from the proof that the deceased intended to make a will, it is by no means clear to my mind, that the paper actually executed was the will which he wanted to make. Is it not manifest, that any other paper could as easily have been imposed upon the testator as the will he wanted to sign, and which he supposed he was signing? In other words, does the record furnish any evidence, or any facts, from which a reasonable presumption would arise, that the contents of this paper were known to Cramer, or that it was drawn in accordance with his directions? I do not intend to intimate that any particular kind of proof Is necessary, where the scrivener takes a benefit under the will, to show the actual knowledge of its contents by the testator; but in some way, other than the mere legal presumptions which usually favor duly executed testamentary papers, I think it should appear that the party signing the supposed will knew its contents.

The error in the court’s opinion in this case 1 conceive to ⁴⁹⁸ consist in the circumstance, that while it is conceded “that if a party,” (according to Baron Parke, in the case in 1 Curteis,) “writes a will under which he takes a benefit, that is a circumstance which generally ought to excite the suspicion of the court,” &c., yet, in fact, such a case is not sufficiently distinguished from the case of an ordinary will. The learned judge, whose opinion is relied on and cited by the majority of the court, when he says, “these are cases of wills, prepared by a legatee so pregnant with suspicion,” See., embraces the case now before us, and that without clear proof of the actual knowledge of the contents of the paper by the supposed testator, the will ought not to be sustained. In addition to the other suspicious circumstances attending this transaction, the fact that the legatee and scrivener, at his own instance, became the depository of the paper, ought to determine the case against him. At no time then had the testator'an opportunity of discovering whether a fraud had been practised upon him, (if such was the fact,) by referring to the paper.

Le Grand, C. J., delivered the opinion ofithis court. This is an appeal from an order of the orphans court for Frederick county, admitting to probate a paper purporting to be the last will and testament of a certain John Cramer. The appellant was the brother of the deceased and his heir at law. The probat of the will was objected to on several grounds: 1st.

Want of capacity on the part of the testator to make a will. 2nd. Undue influence exerted over him by Margaret Smeltz, one of the devisees. 3rd. Failure of the party to request, at the time of their so doing, the witnesses to attest it as his will. 4th. That he did not, at the time of his signing it, publish and declare it to be his last will and testament. 5th.

That there is no evidence he had any knowledge of its contents at the time he affixed his signature. There is not a particle of evidence furnished by the record of any influence being exercised over the testator by Mrs Smeltz, nor is there any adduced to show he was not of a ⁴⁹⁹ sound, disposing mind; but, on the contrary, the evidence of all the witnesses is positive and direct to the point, that he had sufficient capacity; in other words, was of sound mind, capable of making a valid deed or contract. If, therefore, there be any objection to the paper, as a testamentary disposition of property, it must be found in the circumstances attending its preparation, signing and attestation. It appears from the evidence that the will was written by the executor named in it, whose son and self were the principal objects of the testator’s favor and bounty.

These circumstances, in the absence of other proof, would very properly suggest suspicion as to fairness, in a case where the properly is given to those who are not allied by the ties of blood to the testator; but as the law concedes to a man of sound mind, the right to dispose of his property in any manner he may deem proper consistent with its policy, either by gift to take effect in presentí, or after his death, it is no valid objection to a will that the testator has given his property to strangers to his blood, provided he had the required mental capacity and was free from undue influence. Experience not uufrequently informs those, who have encountered the trials and vicissitudes of a long life, that kindness is to be received not only at the hands of those who are our kindred in blood, and that such, by their conduct, may forfeit all claim upon their bounty. The observation of every sensible man must notify him, that a person may have very satisfactory, and, to himself and the world, justifiable reasons for disinheriting his kindred, but which he would be unwilling to make matter of record. From a becoming and praiseworthy respect to the feelings of the living, a testator is properly dispensed from the necessity of assigning the motives which govern him in the selection of the objects of his bounty.

We mention the fact not because we wish to be understood as intimating, in the slightest degree, there is anything in the case before us showing that the appellant failed in any manner faithfully to respond to the obligations imposed by brotherhood, — for on Ihe subject of bis conduct to the deceased the record speaketh not — but to ⁵⁰⁰ announce the principle that the law contemplates as a possible cage, that kindred may, by their own actions, cease to have a hold on the affections or bounty of a relation. “It is not,” say the court, in Davis vs. Calvert, 5 Gill and Johns., 300, “of itself sufficient to avoid a will or testament, that its dispositions are imprudent, and not to be accounted for.” In the case now before us, we have no information in regard to the character of the previous intercourse between the testator and his brother, the appellant. And although “ a will or testament may, by its provisions, furnish intrinsic evidence, involving it in suspicion, and tending to show the incapacity of the testator to make a disposition of his estate, with judgment and understanding, in reference to the amount and situation of his property, and the relative claims of the different persons who should have been the objects of his bounty — such as a disposition of his whole estate, to the exclusion of near and dear relations, having the strongest natural claims upon his affection : a wife and children for instance, or other near relations, without any apparent or known cause, which alone would be a suspicious circumstance,” yet, it would not “furnish, per se, sufficient ground for setting aside the instrument.” 5 Gill and Johnson, 300. The substance of the testimony in regard to the preparation, execution and attestation of the will is this: The testator was in good health, and, prior to the day on which the paper was signed, had requested two of the witnesses to meet him at his house for the purpose of witnessing his will, specifying the day on which he desired them to call on him. One of the attesting witnesses, (Mr. Smith,) says, he went to Mr. Cramer’s house about eleven o’clock on the day the paper was executed; that when he got there, Mr. Crumbaugh was in an adjoining room writing; Mr. Cramer was in the room witness entered.

Witness remained an hour; Mr. Cramer went into the room once or twice in which Mr. Crumbaugh was writing. Witness went to his dinner and returned in about an hour, and was joined by the other witnesses. After they had been at the house some time, the appellee came into ⁵⁰¹ the room where they were, with the paper in his hand; “he laid the paper on the table, and said in the presence of Cramer and the witnesses, gentlemen, the will is now ready to be signed, or to be executed; Mr. Cramer, you will have to sign it first; Mr. Cramer took the pen and signed it; Mr. Crumbaugh then pushed or turned the paper to Mr. Potts, who was sitting at the same table, for him to sign it. Mr. Potts did so, then J signed, and then Mr. Hedges; during this time nothing was said by anybody.” * * * * “'When Mr. Crumbaugh was in the act of folding up the will, I was