Gross v. Burneston

McSherry, C. J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore City. The order transmitted certain issues to the Court of Common Pleas for trial and refused to send up certain other proposed issues. Objection is made to the first of the four issues which were transmitted, because that issue, as framed, requires the jury to find whether the testatrix requested the witnesses to the will to sign it; and secondly, because the issue, which was one that related to the factum of the will, was not raised between the parties to the cause by the petition and answer.

The Code provides: “All devises and bequests of any lands, or tenements or interest therein, and all bequests of any goods, chattels or personal property of any kind * * * shall be in writing and signed by the party so devising or bequeathing the same, or by some other person for him, in his presence and by his express direction, and shall be attested and subscribed in the presence of the said devisor by two or more credible witnesses, or else they shall be utterly void and of none effect. ” That the testator must in some way request the subscribing witnesses to attest the will is obviously involved in this requirement. The validity of the will is made to depend upon the instrument being attested by two or more credible witnesses, and ³⁸⁷ it cannot well be perceived how it could be attested at all unless the testator directly or indirectly requested those persons who do attest it to subscribe their names to it as witnesses.. The law throws around testamentary papers the utmost precautions to prevent fraud and imposition, and it would seriously weaken these safeguards if it were held that no request at all or in any form by the testator to the subscribing witnesses were needed. But it is not meant by this that the testator should ask the witnesses to sign, because facts which are sufficient in law to constitute a legal request on his part are all that must be proved.

Higgins v. Carlton and Scaggs, 28 Md. 140; Cramer v. Crumbaugh, 3 Md. 501 . Whilst there must be a proper attestation which includes a request by the testator that the witnesses subscribe their names to the will, still the legal question as to what constitutes a sufficient request is left open by the issue, as was done in Higgins' case, supra, for the trial Court to define by appropriate instructions. In the case just referred to the caveators asked by their fifth prayer the following instruction : “ Unless the jury believe from the evidence, that the said paper-writing was attested by the subscribing witnesses at the request of the said John Higgins, they must find on the first issue for the caveators.”. This prayer was modified by the trial Court, and by the modification the jury were told that if they found certain enumerated facts those facts constituted a sufficient request on the part of the testator.

In reviewing this ruling our predecessors said: “ The facts stated by the Court below, in the modification of the fifth prayer, are sufficient in law, if found by the jury, to constitute a legal request by the testator for the subscribing witnesses to attest his will. The testamentary law of this State does not require that a testator should ask them to attest it. His assent, either express or implied, is sufficient; provided, ‘ the act be done with his knowledge and not in a clandestine and fraudulent way. ’ * * * If the prayer had been granted by the Court, without the qualification an ³⁸⁸ nexed, the instruction might have misled the jury, in supposing that the law required the testator to ask the