Home of the Aged of the Methodist Episcopal Church v. Bantz

Schmucker, J., delivered the opinion of the Court. This appeal brings to our notice for the second time the will of Theodore S. Bantz, late of Baltimore City. Mr. Bantz died in June, 1904, at an advanced age in Dr. Gundry’s Sanitarium for feeble-minded persons to which he had been sent in December, 1902, as a sufferer from senile dementia. At or shortly before his death his will, which had been executed in J892, was found in his secretary at his home in Baltimore City.

When the will was found there appeared on its face lines drawn with a pen through and across certain words and sentences but not in such manner as to entirely obliterate them or render them illegible. All of the persons named as executors in the will having predeceased the testator and he having left no children or descendants it was propounded in the condition in which it was found, for probate in the Orphans’ Court óf Baltimore City on June 15th, 1904, by his widow, the present appellee. The will was admitted to probate in common form and letters of administration, c. t. a., upon the estate issued to the ⁵⁴⁸ appellee. In September, 1906, the present appellant filed a caveat to the will asserting in substance that, although the testator was fully competent to make his will at the time of its execution, he began about November, 1898, to show symptoms of insanity which developed to such an extent that it became necessary on November 23rd, 1902, to confine him in an asylum, that the will was in the possession of Frederick Leist, Esq., from its execution until his death early.in 1902, and that for many years before his death the testator was incapable of validly making, revoking or cancelling a will and that if the lines on the will had been made by him they had no effect as a revocation of the portions of the will over which they were drawn.

The caveat further averred that the lines were not upon the will at the time of its execution and formed no part of it and prayed that the probate of the will with the lines on it might be revoked and it might be admitted to probate without the lines appeáring on its face. The appellee answered the caveat denying the jurisdiction of the Court and setting up among other defenses that of plene adminstravit. The caveator having demurred to the answer the Orphans’ Court upon a hearing of the matter passed an order dismissing the caveat upon the ground that they had no jurisdiction to determine the question presented by it. The caveator appealed from that order to this Court and we reversed the order and remanded the case in 106 Md. 147 , holding in our opinion that the issues raised by the, caveat related to the factum of the will and concerned its probate and not its construction and were therefore cognizable by the Orphans’ Court, which under our testamentary system has exclusive jurisdiction in granting or refusing the probate of wills.

When the case went back to the Orphans’ Court the appellee filed an answer denying the material allegations of the caveat and much testimony was taken by the respective parties and the matter was again heard by that tribunal with the result that a majority of the Court filed an opinion and order holding that Theodore S. Bantz died intestate and saying “That the erasures and cancellations made in the body of ⁵⁴⁹ the paper writing were made by the deceased with the intention of cancelling that portion of the instrument; it follows therefore that the remaining portions of said instrument must fail as a will because standing alone they would be unintelligible to the intention of the entire instrument.” The order also revoked the probate of June 15th, 1904, and the letters of administration then granted. From that order the present appeal was taken. To facilitate the consideration of the issues presented by the appeal we here insert a copy of the will, without its formal opening and conclusion, in which the cancelled portions appear in italics. It is as follows: “I, Theodore S. Bantz, of the city of Baltimore, in the State of Maryland, do make this my last will and testament, in manner following, that is to say: After the payment of all my just debts and funeral expenses, I give, devise and bequeath all my estate and property, real and personal wheresoever the same may be unto Joshua T. Young, my brother Edward Bantz, M. D. and Frederic Leist and the survivors or survivor of them in trust and confidence to hold the same for the term of my wife’s, Sallie C. Bantz, life, and after paying the taxes and necessary expenses thereon, to pay her out of the net income of my estate the sum of one thousand and ninety-five dollars per year during her natural life in quarterly installments of two hundred and seventy-three dollars and seventy.-five cents each; and the remainder of the income to be invested by them and held for the purpose of making good any -deficiency of the income to my wife Sallie C. Bantz so that she will receive one thousand and ninety-five dollars for every year during her natural life and at the death of my wife Sallie C. Bantz said trust shall cease and the property No. 724 West Lexington Street and No. 202 Myrtle Avenue shall go to my brother Edivard Bantz absolutely.

Five Thousand Dollars shall go to Charles G. Bowman, nephew of my first wife Cecelia Bantz and four thousand dollars shall go to in equal shares to Thomas Bowman Smith and Cecelia Bantz Smith children of George P. Smith and his wife Mary C. Smitfi and the rest and residue and remainder of ⁵⁵⁰ my estate shall go to the Home for the Aged of the Methodist Episcopal Church located at the southwestern corner of Fulton Avenue and Franklin- street for the purpose of a dormitory to be known as a Cecelia Bantz dormitory. I do further give to the trustees named in this my last will and testament and to the successors in said trust and to the survivors or survivor of them all powers which may be necessary for the preservation, direction, repair, management or profitable use of any property; real or personal devised by me and bequeathed by me and remaining under their or his control, until suchtimeas their respective duties and the duties of each one of them in relation to the said trusts and property shall be fully performed. I constitute and appoint Joshua T. Young, Edward Bantz and Frederic Leist to be the executors of this my last will aná testament (my brother Edward Bantz not to receive commission as trustee and executor as the provision made for him is to be in lieu thereof) hereby revoking all other wills and codicils by me heretofore made.” We have not put in italics, in the foregoing copy of the will, the words ‘‘Avenue and Franklin street for the purpose of a dormitory to be known as Cecelia Bantz dormitory,” which conclude the gift of the residue of the estate to the appellant, because the lines on the will did not pass through them. But an inspection of the original will, which was ex-, hibited to us upon the former appeal, showed diagonal lines drawn across the clause containing those words in such manner as to fairly indicate a purpose to include them also in the cancellation.

A careful consideration of the testimony appearing in the record leads us to agree with the Orphans’ Court in its first conclusion that the cancellations on the face of the will were made by the testator with the intention of revoking the can-celled portions of it. We are, however, unable to agree with that tribunal in its second conclusion that the other portions of the will were so interwoven, with the cancelled portions, that they cannot stand alone and the entire instrument must therefore fail as a will. The Orphans’ Court expressed no ⁵⁵¹ opinion upon the issue, much discussed before us, of the testamentary capacity of the testator when he made the cancellations, but in our opinion the testimony fails to overcome the well settled and salutary- presumption in favor of sanity and testamentary capacity to which every person is entitled under the law. Without reviewing at length the testimony appearing in the record, we observe that there is no direct evidence of the time when or the person by whom the cancelling lines were put upon the will.

It is shown by the evidence thgt the will was executed at the office of the testator’s counsel, Frederick Leist, Esq., in 1892, and was found among Mr. Leist’s papers early in 1902 after his death, but it does not follow that the will wa,s out of the testator’s possession during all of that time. In view of the fact, that Mr. Leist was his professional adviser whose office he is shown by the evidence to have visited every three or four months for four or five years prior to Leist’s death, the will should rather be regarded as having been under the testator’s control and practically in his possession during that time. It appears from Mr. A. DeR. Sappiugton’s testimony that he found the will among Mr. Leist’s papers when assorting them shortly after his death and sent it to Mr. Bantz, so that it is shown by the evidence to have been in the possession or under the control of the testator practically the entire time from its execution down until he went to the sanitarium, somtime after which it was found with the cancellations upon it by his widow and nephew locked up in his private secretary.

The only times when it was shown to have been beyond his control are the short periods between Mr. Leist’s death and the examination of his papers by Mr. Sappington and the brief possession of the