Garner v. Garner

Bond, C. J., delivered the opinion of the Court. The appeal is by a caveatee of a will from the action of the Orphans’ Court in settling issues to be tried in a court of law. Issues requested by the appellees, the caveators, were allowed, while issues requested by the appellant were not. Isaac Garner, late of Dorchester County, in due form executed a will in the year 1919, and another, also in due form, in 1933, and in both, his widow, Augusta, or Gussie, Garner, appears named as sole legatee and executrix.

The second will contained no clause of express revocation of the first. There were no children. A brother of the decedent, and children of a deceased brother, now the appellees, filed the caveat to the second will when it was offered for probate on June 6th, 1933, and it has not been probated. The petition filed at that time attacked the will on all of the grounds usually advanced, those of lack of valid execution, lack of testamentary capacity in the testator, procurement of the will by undue influence and fraud of the legatee named, and lack of knowledge by the testator of the contents of the instrument; and issues were prayed for trial of all these grounds by a jury.

After an answer by the caveatee, and joinder of issue on the case so opened, the caveators, and appellees, filed a second petition presenting a more restricted attack. It was now alleged that in the year 1933, Garner, the decedent, took his previous will from his safe deposit box ⁴²⁵ with the purpose of making a new will, by which he intended to revoke the previous one, and, after some charitable bequests, to bequeath one-half of the residue of his property to his widow and one-half to the caveators and appellees, that he fell ill, and while he was ill his wife fraudulently procured his execution of the will as now offered for probate, again bequeathing all the property to her alone. The testator, it is alleged, could not read or write English, and the contents of the paper were not read to him, he was fraudulently led to believe he was executing a new, altered will as he intended, and to the witnesses the wife explained that he was republishing the old will. On these facts, it is contended, the second will represented the decedent’s intention only in so far as it revoked the earlier will, and in respect to the disposition embodied in it was contrary to his intention.

Two issues were prayed and granted for trial of these grounds of attack: “1st. Was the paper writing dated February 23rd, 1933, in so far as it purports to make testamentary disposition of the estate of Isaac Garner, procured by fraud exercised and practiced upon the said Isaac Garner ’ “2nd. Did Isaac Garner, by the paper writing dated February 23rd, 1933, revoke all wills and testaments which may have been executed by him prior to said date, and especially the paper writing purporting to be his will and testament and dated January 3rd, 1919’” The widow filed exceptions to the new petition, which were overruled, and then filed an answer and petition of her own, which prayed that issues be sent to the court of law on her behalf for trial of all the grounds of attack presented in the caveators’ first petition. Those issues were denied.

The appeal is from the overruling of the exceptions to the caveators’ second petition, as well as from the settling of the issues as stated. This court is of opinion that both of the issues submitted by the caveators should have been disallowed. The first seems to require the jury to make an unsubstantial, if not impossible, distinction between the disposition in ⁴²⁶ the will and the execution of it. The gift in it to the wife was the only one made, and if that should be avoided for fraud the whole will would be avoided.

Execution of the will could be no more than an authentication of that single gift. Danger of confusion from this might be slight, especially under cautionary instructions by the court to the jury, and perhaps, if there were no other ground of objection to the issue, it might be acceptable as a method of submitting the question of validity of the whole will. But there is another ground. The issue is designed to reserve the formal execution from attack to serve as evidence of revocation of the first will, which is the subject of the second issue, and that second issue, to which the first is subsidiary, cannot be allowed as stated.

Revocation of a will may be effected in only a limited number of ways, Page, Wills, sec. 453. This case is not concerned with revocation by subsequent conveyance of the property during life, or ademption otherwise, by change in the testators’ domestic relations, or by destruction or mutilation of the paper, and there remains of the method of revocation permitted only that “by some will or codicil in writing, or other writing declaring the same.” Code, art. 93, sec. 333. This is a re-enactment in Maryland of the provision of the Statute of Frauds, 29 Car. II, ch. 3.

Eschbach