Harris v. Pue

Bartol, O. J., delivered tbe opinion of the Court. On the 18th day of February, 1878, the appellee filed in the Orphans’ Court of Howard County, for probate, a paper-writing, as the last will of Christopher Harris, deceased, and at the same time filed therewith a paper signed by the appellant as follows: “I, Ann Harris, widow of Christopher Harris, knowing that the paper-writing signed in lead pencil by my said husband, and filed with the Register of Wills of Howard County, by Charles R. Pue, Jr., on the 18th day of February, 1873, embodies the desires and wishes of my said husband, in regard to the disposition of his property after his death, do hereby request that the same may be admitted to probate by the said Court, and I renounce my right to administration, with the will annexed, in lavoi\ of said C. R. Pue, Jr. “Witness my hand, this 18th day of February, 1873. Ann Harris.” “ Witness : Joseph Hunt, Wm. H. Scott.” Whereupon the said Charles R. Pue, Jr., being examined on oath, touching the manner in which the said paper-writing or will, came into his hands and possession, and his answers being satisfactory to the Court, an order was passed admitting the same to probate without objection, and thereupon letters of administration, c. t. a., were granted to the appellee, who gave bond and qualified according to law.

On the first day of April, 1873, a petition was filed by the appellant, praying that the matter of the probate be again examined and heard, according to the provisions of the Code, Art. 93, sec. 320, that the letters of administration, c. t. a., be revoked and annulled, and for further relief. The petition alleges two grounds for relief. First, That the petitioner, when she signed the paper filed with the alleged will, “did so in the lull trust and ⁵⁴¹ belief that the paper filed as the will of the deceased, set forth and contained the full testamentary scheme and purposes of her deceased husband, but in this respect she was misled and misinformed. And she has since learned, and avers and declares that said alleged testamentary paper does not set forth, or contain the testamentary scheme or purposes of her deceased husband; amongst other things in this, that it does not set forth and contain a legacy or bequest to the Rev. Hugh Griffin, of Howard County, of the sum of five hundred dollars.

Also in this, that it does not set forth and contain a legacy or bequest to the Rev. Father Chappal, of St. Charles College, in Howard County, of the sum of two hundred dollars. And also, in this, that it does not set forth and contain a legacy or bequest to Hettie Shields, of Baltimore City, of the sum of one thousand dollars. All of which said legacies and bequests, the petition alleges, it was the settled testamentary scheme, purpose and disposition of the said Christopher Harris, to make, give and bequeath ; all of which was, and is well known to her, and all of which she believed were set forth and contained in the alleged testamentary paper, when she signed the pa,per filed therewith.” Second. — The petition further alleges “that the Court had no rightful jurisdiction in the matter of probate, because the deceased at the time of his death, had no domicil in Howard County, and was not seized or possessed of any property real or personal within the limits of said County.” The appellee in his answer to the petition, states that the appellant had “full knowledge of the contents of the paper-writing admitted to probate, and that letters of administration c. t. a. were granted to him at her request and with her approbation. He avers that he knows of no other testamentary scheme or purpose of the dt ceased, except that contained in said paper ; and submits that ⁵⁴² any such testamentary scheme or purpose can only be evidenced in the manner required and designated under the laws of the State.

That the said paper-writing was prepared by the respondent at the request and earnest solicitation of the said deceased, in the presence of the said deceased, and that the same was read over to the said deceased by the respondent, and after an examination of the same by. the said deceased was signed by him. That a' copy of the said paper was likewise prepared by respondent at the same time and place, that is on the 15th day of January, 1873, and in the room of said deceased; that the said copy was prepared at the instance and request of the said deceased, and examined by him and by him signed and delivered to the respondent, with the solemn injunction that the respondent should, after the death of said deceased, carry out the purposes of said deceased as set forth and contained in said papers ; all of which was done in the presence and within the hearing of the petitioner.” The answer further avers “that the deceased was seized of no real estate at the time of his death, and his personal property amounted to the sum of $3800, evidenced and secured by the promissory note of Gol. M. Benzinger of Baltimore City, in whose possession the said sum was at the time of the death of said deceased, and who still retains possession of the same ; and the said deceased was likewise possessed of a few articles of household furniture of very small value, which- he has delivered into the possession of the petitioner. The answer avers that the deceased was at the time of his death a resident of Howard County, that he had resided therein for more than a quarter of a century, and always regarded the said County as his home ; that at the time of his death, he had only been beyond the limits of the-County for a short time and for a temporary purpose ; and that the petitioner, the day the deceased was ⁵⁴³ buried, returned to said County, and has been in said County since residing,” &c., and prays that the petition be dismissed, &c.

The case was set down for hearing, and testimony produced upon both sides ; and the Orphans’ Court on the 19th day of June, 1873, ordered and adjudged that the petition be dismissed. From this order the present appeal was taken. We have set out the averments contained in the petition and answer, at greater length than usual, in order that it may clearly appear what are the questions at issue between the parties, which we shall now proceed to consider. As to the alleged want of the jurisdiction of the Orphans’ Court.

This objection, though made in the petition, has not-been pressed in the argument by appellant’s counsel. It appears from the evidence that the deceased, had made his home in Ellicott’s Mills in Howard County for some years; a few months before his death, he and his wife went to Mr. John W. Jackson’s in Baltimore County ; and remained there till his death. But the proof shows that the house of Mr. Jackson was regarded by the deceased only as a temporary home. He so stated'to Dr. Burns his physician, who testifies that he always claimed Howard County as his place of residence, and expressed his intention to return there as soon as he could find a place.

Similar expressions by the deceased as to his domicil are proved by Dr. Thomas Owings and Edward H. Soper. On this subject there is no contradictory proof. The jurisdiction being established, the only question to be considered is whether the paper-writing was properly admitted to probate, as a valid will to pass personal property ? The deceased at the time of its execution was seized of no real estate, and the instrument, therefore, could have been intended only to operate upon personal jmoperty. ⁵⁴⁴ It was executed on the 15th day of January, 1873, and Mr. Harris died on the 13th day of February following; there is no question as to his testamentary capacity, though eighty-six years old, he appears to have retained his faculties unimpaired.

Dr. Watkins, who saw him not more than two or three weeks before his death, testifies that “he was then of sound and disposing mind;” and Dr. Burns, who attended him in his last sickness, says, “he was of clear, strong mind; even in his last illness he was of clear mind; he was of sound and disposing mind up to the last moment I saw him ; I never saw him otherwise than of sound mind.” The paper admitted to probate is as follows: ‘ ‘ Ellicott City, Jan. 15th, 1873. “ Charles R. Pue will, at the death of myself and wife, distribute to each of the undersigned persons, the sums of money stated after each name, to-wit: “To Rev. Father Griffin, -; “ “ “ Father Chappal, -; “ “ Hetty Shields,-; “ “ Mrs. Phelia Kennedy, one hundred dollars. “ “ St. Joseph Orph. Asylum, (Franklin Square,) two hundred and fifty dollars, ($250 00.) “The amounts to be written hereafter to each of the three above named persons. “Chas. R. Pue, Jr., to bury us and to see that all debts for funeral expenses be paid first, then to pay the above, and all money remaining thereafter to be kept for himself. Should I die first, Chas.

R. Pue is requested to take charge and look after my wife’s welfare. Col. Benzinger will pay C. R. Pue, Jr., all money in his hands belonging to me at my death. “ Christopher Harris.” (Signed in lead pencil.) Charles R. Pue, Jr., states in his testimony that the paper was written by him, on the request and at the ⁵⁴⁵ dictation of Mr. Harris ; that he was sent for on that day by Mr. Harris, and went immediately; on arriving at the house he met Mr. and Mrs. Harris, (the appellant,) and while they were yet standing together, Mr. Harris took out of his inside coat-pocket two sheets of paper, saying at the same time, “Come, Charley, I want you to write my will now;” then asked for pen and ink, which were brought, then, after trying if he could write his name with a pen, and failing, because the pen caught in the paper, the witness remarked that he could sign with a pencil. The witness, after dating the paper, proceeded to write, word for word, as dictated to him by Mr. Harris, until he had written the $250 to the St. Joseph’s Orphan Asylum ; when Mr. Harris went on to give further directions, and the witness thinking he had overlooked the three blanks, asked him if he was not going to fill them up; he replied, “that could be done at anytime,” or something to that effect, saying, “1 don’t know what amount I will leave them; I am going to take care of you, and I don’t want to lessen that amount;” the witness then wrote the words, “The amounts to be written hereafter to each of the three above named persons.” Mr. Harris then went on and finished dictating the will.

The witness then read it to him, and asked him if it was right? he said it was ; then the paper was handed to him requesting him to read it himself. He then took the paper up in his hand, and pointing to the other sheet of paper, said, “write me one after this,” referring to the paper he had in his hand. The witness asked him what he wanted with two wills, he said that he lost one, it had been destroyed on him, and he would beep one himself, and wanted witness to keep the other, so that