Dietrich v. Morgan

⁵⁵⁴ Forsythe, J., delivered the opinion of the Court. The appellees in this case, Shirley C. Morgan and the Mercantile Trust Company, trustees under the will of Mary D. Wa.lsh, deceased, and the Most Reverend Michael J. Curley, Archbishop of Baltimore, filed a petition in the Orphans’ Court of Harford County, in which it is stated that the said appellees, on November 18th, 1939, filed a caveat to an alleged third codicil to the last will of the said Mary D. Walsh. The petition asked the Orphans’ Court to frame issues of fact, and send them to a court of law for trial. The petition suggested six issues, the first of which is as follows: “(A) Is the paper writing, dated July 27, 1937, purporting to be signed by the said Mary D. Walsh, and to be addressed to Frank B. Cahn & Company, testamentary in character?” The other suggested issues are not involved in this appeal.

An answer to the petition was filed by E. Alexander Dietrich, the administrator of James Walsh, deceased, a son of the said Mary D. Walsh. The answer excepted to the suggested issue A on the ground “that the issue, as framed, presented an issue of law, and not of fact, and therefore improper for the consideration of a jury.” Before the Orphans’ Court acted upon the petition of the appellees, the parties agreed that the suggested issue A “should be submitted to the Orphans’ Court for Harford County for determination, reserving to the appellees the same and all rights that they would have had if this agreement had not been made as to any of the other issues asked for.” In accordance with that agreement of the parties, the Orphans’ Court of Harford County, on March 21st, 1941, heard testimony, and by its order of March 26th, 1941, denied probate of the said paper writing of July 27th, 1937, as a third codicil to the will of Mary D. Walsh, and it is from that order this appeal is taken. ⁵⁵⁵ The said paper writing of July 27th, 1937, which had been offered as a third codicil to the will, and two codicils of Mary D. Walsh is as follows: “Bel Air, Maryland, “July 27, 1937. “Messrs. Frank B. Cahn & Company, “Equitable Building, “Baltimore, Maryland. “Dear Sirs: “Will you please transfer from my account with you to the account of my son, Mr. James Walsh, $40,000.00. (Forty thousand.) You can do this by selling such securities as you think most advisable for the purpose. “Thanking you, I remain, “Very truly yours, Mary D. Walsh. “Witnessed by: “Mary A. Sanford. “Anna S. Noel.” The only question presented by this appeal is whether the above paper writing is of such testamentary character as to entitle it to be admitted to probate as a codicil to the will of said Mary D. Walsh.

The Orphans’ Court of Harford County heard the . testimony of three witnesses, Anna S. Noel, Shirley Morgan and Dr. Thomas Payne Thompson. Miss Noel was a witness to the paper in question. She is a practical nurse and had been in attedance on Mrs. Walsh for about twelve days before her death, and remained until after the funeral. Miss Noel identified her signature as a witness to the paper of July 27th, 1937, and said she was asked by Mrs. Walsh, and James Walsh, to sign the paper as a witness; she did not read it, or know what she was signing.

Miss Noel then identified the signature of Mary A. Sanford, whose signature also appears on the said paper as a witness. Miss Sanford was out of the room at the time, but was ⁵⁵⁶ called in by James Walsh, and Miss Noel and Miss Sanford were asked by both “Mrs. Walsh and her son” to sign the paper as witnesses. Miss Noel said Mrs. Walsh, Miss Sanford and herself signed the paper in the presence of each other. Miss Sanford was not called as a witness, but it was stated she could not, at that time, be located.

It does not appear anywhere in Miss Noel’s testimony that she was told the nature of the paper she witnessed, nor that she heard it spoken of as a will, or as a codicil to a will. Dr. Thompson’s testimony was directed entirely to the physical and mental condition of Mrs. Walsh for several weeks prior to, and at the time of, her death. He said she was “exceptionally keen for a woman of her age,” which was eighty-four or eighty-six years of age when she died. The doctor was of the opinion that Mrs. Walsh’s “unusually good mental condition for her age” continued to the day before she died, on July 30th, 1937.

Mr. Morgan, one of the appellees, and co'-trustee, with the other appellee, the Mercantile Trust Company, testified that he is a partner in the firm of Frank B. Cahn & Company, the banking firm in which Mrs. Walsh had her money and securities. According to Mr. Morgan’s testimony, the paper here in question was sent by him to James Walsh, to be filled out as to the amount, and to be witnessed by a person other than James Walsh. The paper, it appears, was not prepared expressly for Mrs. Walsh, but it is a form letter in regular use by the firm of Frank B. Cahn & Company in handling accounts for their customers. The form letter was sent as a result of conversations, and letters, between the witness