Hale v. Monroe

Stewart, J., delivered the opinion of this Court. The record, in this case, shows that the appellee instituted an action of trespass queere clausum fregit, in the Circuit Court for Baltimore county, against the appellant, who pleaded “not guilty ” to the same. An agreement was made by the parties, that the appellant, under that plea, might make any defence ¹¹² which could have been specially pleaded; and the appellee, could offer in evidence, whatever might be introduced, upon any replication to such pica. In the progress of the case, it was removed to Howard county, and at the trial, there- was testimony on both sides, and chiefly, as to the possession and occupancy of the loans in quo, by the respective parties.

The evidence was conflicting, and might have proved a mixed possession, not exclusive on either side, according to whatever estimate the jury might have placed upon it. The action of the Court below which we are required to review, relates to the several propositions, embraced in the four exceptions, taken by the appellant; we will consider them in the order of their occurrence. In the first exception, the appellee having proposed to introduce, as matter of evidence on his part, a paper writing purporting to be the last will and testament of James Greenfield, dated 1st of February, 1779, and certified to by the register, the 28th November, 1779, the appellant objected to its admissibility. The Court overruled the objection, and permitted the same, Avith the accompanying certificate of the register, to be given in evidence to the jury.

This document, not having the requisites prescribed by the Statute of Frauds, for the purpose of devising real estate, Avas not admissible for that purpose; nor can such a probate, made before the Register of Wills, give to it validity and effect, as the last will of James Greenfield, to transfer his real estate; nor can such a paper, nor such probate, from any lapse of time, be effectual to that extent. The Act of 1715, ch. 39, Avhich confers poAver on the probate Judge “ to take probate or cause to be proved, any last will and testament, although the same coircerns title to land ” did not dispense A\Tith the requirements of the statute of 29th Charles II; but authorized him to proceed according to the laAArs of England, in force in the colonies. He Avas directed strictly to pursue the provisions of ktw, in taking probate of a AA'ill. ¹¹³ The paper writing, offered in this case, is not proved to have been attested by three witnesses, nor does the certificate of the register, or probate, show that the provisions of the Statute, were complied with, in this respect. No presumption from its ag’e, and the fact of its having been recorded, in the office of the Register of Wills, and the proof certified to in regard to it, can make it effectual as a last will and testament, by which to dispose of real estate.

To admit such an instrument with its, apparent imperfections, referred to, as a competent and operative last will to transfer real estate, required to be made and attested under the Statute, with very precise and formal solemnity, would be in palpable violation of the law, and utterly subversive of the safeguards which its express provisions, its genius and policy, emphatically prescribe. In the case of Rhodes, et al., vs. Vinson, et al., 9 Gill, 171 , the Court say, “the policy of the law, has thrown around last wills, as many if not more shields to protect them from frauds, imposition and undue influence, than any inode of conveyance known to the law; ” “can there be a doubt, in cases like the present, where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy requires