Hoppe v. Byers

Miller, J., delivered the opinion of the Court. The single issue transmitted for trial in this cáse was whether a certain paper-writing propounded for probate on the 19th of September, 1881, by Eliza Ann Byers, wife of John G. Byers, as the will or testament of John Henry Hoppe, was written or signed by him, or signed by some other person in his presence or by his express direction ? Mr. Hoppe died in January, 1881, at the age of eighty-one years, leaving personal estate valued at about $121,000, and real estate worth about $38,000. He left a widow and ■ six grandchildren, children of a deceased son who had died in December, 1811, his sole heirs-atdaw.

It also appears from the record that Eliza Ann Byers, whose maiden name was Geatty, had lived with Mr. Hoppe in his family from early childhood until her marriage in 1853. In January, 1815, she and her husband resided near Littlestown, Penn., about fourteen miles from Westminster, where Mr. Hoppe lived, and on the 9th of that month he wrote a letter on one side of a half sheet of foolscap paper which was enclosed in an envelope addressed to John G. Byers, and was put in the post-office on the 11th of the same month. That letter is as follows : “Westminster, Jan’y 9th, 1815. “This is to inform you and your wife that John T. Diffenbaugh called on me and stated that your wife, Eliza Ann Byers is coming to her out of the estate of Anna Geatty, deceased, according to the first and final account thereof, settled by Andrew Reese Durbin, deceased, executor of said Anna Geatty, in the Orphans’ Court of Carroll County, Feb’y 10th, 1813, amount due Eliza Ann Byers, wife of John Byers, the sum of $31.30. John T. Diffenbaugh, as executor of Andrew Reese Durbin, is about making settlement in the Orphans’ Court, of Durbin’s estate, of the funds in his hands to be distributed among the creditors of said deceased.

I have pose-d a notice as you will see and read, ³⁸³ as given in the newspapers in our town; you will give this notice your and your wife’s attention, for the purpose of getting your dividend, and I now propose to you, and your wife, to meet me in Taneytown, on Wednesday, the 13th of January, 1875, at the Hotel of Elliott, in Taneytown, at 10 o’clock, A. M. On which day I have a sale to cry for Isaac E. Pearson, trustee of David Sentz’ property. I have prepared your claim for you to sware before me as Justice of the Peace, and when done, I wfill file your claim with the Register of the Orphans’ Court, so you may get your dividend out of the estate of Durbin. By attending-to this, will save you trouble and expence ; I hope to see you at Taneytown on the day above named ; we are all reasonably well; hoping these may find you all well, “Yours in haste, respectfully, J. Henry Hoppe. “John Gf. Byers and Eliza Ann Byers.” This letter is admitted to be in the hand-writing of Hoppe.

At the bottom of the page and at the corner are the words “Turn over,” and then on the reverse or opposite side of the same half sheet, is found the alleged testamentary writing as follows: “Ann, don’t worry yourself about this matter, as you see you are almost cut out on every side by your father and your mother, but you have been a faithful daughter to me, and have obeyed me, and you have seen a great deal of trouble ; don’t worry yourself, but take things easy, and do the best you can for the present. I have prospered, and have accumulated a great-of money together, and I intend to do what I please with it. And, Ann, after my death you are to have forty thousand dollars; this you are to have, will or no will; take care of this letter until my death. Ann, keep, this to yourself. “ J. Henry Hoppe. “To Eliza Ann Byers.” ³⁸⁴ The caveators, who are the widow, heirs-at-law, and administrators of Hoppe, insisted that all this writing, including the words “ Turn over ” on the first page of the letter, was an out and out forgery.

At the trial of this one issue of forgery vel non the jury found a verdict for the caveatees, Byers and wife. In the course of the trial a single exception was taken hy the caveators, and as counsel do not agree as to the question raised and presented for review hy this exception, it becomes necessary to state it somewhat at length. It appears then that the caveatees first offered in evidence the disputed instrument, and proved by a competent witness that the same was in the hand-writing of Hoppe. The caveators then proved by Dr, Herring that neither the paper nor the signature to it was in Hoppe’s handwriting.

They then offered to prove by the same witness that in October, 1880, Hoppe said he would have to make a will, and was. examining his papers with that view; that about two weeks before his death he sent for witness and said he was about to make his will and wanted Parke to write it when he got it arranged in his mind, and that he wanted witness and Longwell to he his executors. The caveatees objected to the admissibility of these declarations, when the Court suggested that the question he reserved until it should appear whether any further, and if so, what declarations of the deceased would he offered on each side, when argument on the question of their admissibility would be heard, and the Court would indicate its opinion, and any declarations on either side might be introduced in conformity therewith. In the further progress of the case and after the caveators had given testimony hy other witnesses to prove that this paper was not in the hand-writing of Hoppe, and was not signed hy him, they offered to give in evidence other declarations of Hoppe, but the caveatees again objected. The Court then requested counsel on either side to put in writing the declara ³⁸⁵ tions they proposed to offer, and announced that it would then give its opinion on the general question of the admissibility of such declarations.

Thereupon, and in compliance with this suggestion,'counsel for the caveators submitted a written statement showing that they proposed to prove the following declarations, all made since January, 1815, the date of the paper in dispute. 1st. By Dr. Herring, that a short time before his death, Hoppe stated to witness that he had not made any disposition of his property, but intended to make his will, and for that purpose had spoken to Mr. Parke, an attorney, to prepare a draft of his will, and that lie had selected his executors. 2nd. By Parke, that a short time before his death, Hoppe requested witness to prepare Ids will, and for that purpose stated to him the particular disposition he intended to make of his property, and that witness took down in writing the names of the beneficiaries, and the amounts stated to him by Hoppe ; that these memoranda in writing were made by witness in the presence of Hoppe, and were, by witness, read over to him, and he said the same were correct; that subsequently witness had a conversation with Hoppe, who again stated what disposition he proposed to make of his property, and that on neither occasion, nor at any other time, did he mention the name of Eliza Ann Byers as one of the beneficiaries under his will; that by these instructions, he gave small sums to nearly all of his relations, and left the balance of his property to his widow and grandchildren. 3rd. By various witnesses, that Hoppe stated, after the death of his son, he intended to leave his whole estate to his wife and grandchildren; that he frequently said, “who but my wife and grandchildren should inherit my property ? ” and that when his widow got her share, each of his grandchildren would have about $25,000; and further to prove that this estimate would absorb the whole estate. ³⁸⁶ 4th.

By Mrs. Hoppe, the widow, that her husband told her a few days before his death, that he had made no disposition of his property, and that the law made for him the only will he wished; that she would get a good part of his property, and the balance would go to his grandchildren. Counsel for the caveatees also submitted a written statement, by which they offered to prove : 1st. That just prior to the marriage of Eliza Ann, in 1853, Hoppe, whilst speaking of objections made by her father, Greatty, to her marriage, said she was Ms daughter, and he was able and would provide for her well, and that he did not care whether Greatty did anything for her or not. 2nd. That in 1860, after her marriage, he expressed his strong affection for her, recapitulated her filial devotion and services to him, and that he intended to give her a child’s share of his estate. 3rd.

That prior to the death of his son, he frequently complained of his son’s wastefulness and want of economy, and also that of his son’s wife and children, and said they should not spend all the money he had saved; that he would give a child’s share of his estate.to Eliza Ann. 4th. Various other declarations made by him at various times, to the same substance and effect. 5th. That after the death of his son, he declared his son’s children should not spend all his money after his death, in driving about in carriages; and that he had secured to Eliza Ann a share of his estate. 6th. That he declared he intended to give Eliza Ann a child’s share of his estate, which would be about $40,000, and that after the death of his son, he said to the same witness, that now he had done what he had said to witness he would do.

Tth. That in 1880, he said he had secured a child’s share, or a share of his estate, to Eliza Ann Byers. ³⁸⁷ Thereupon, after hearing argument, a majority of the Judges before whom the case was tried, announced the opinion of the Court to bo that any declarations of Hoppe would be admissible, provided their character and nature were such as might throw light on the matter of probability, whether he had or had not written and signed the paper in question, and that counsel might proceed under this view, and as the case progressed the Court would apply this view of the law to the particular declarations which might be offered on both sides. “And it was thereupon understood and agreed, upon both sides, that all such testimony be taken subject to exception, and exceptions vjere to he understood as reserved to all such proof of declarations by both sides.” The caveators then gave in evidence by several witnesses, declarations of the deceased substantially such as were stated in their written offer, and closed the case on their side. The caveatees then offered proof by other witnesses, tending to show that the paper, as well as the signature thereto, ivas in the hand-writing of the deceased. They then proved, by a number of witnesses, (whose testimony is set out in the exception,) declarations of the deceased such as were stated in their written offer. “ Thereupon the caveators, under the understanding and agreement hereinbefore mentioned, objected to the admissibility of all and each and every of the declarations of the said John Henry Hoppe hereinbefore set out as given in evidence by the caveatees, but the Court overruled said exceptions and admitted said declarations, to which ruling of the Court the caveators excepted.” Erom all this, it seems to us plain that it was the intention of the Court, as well as of counsel on both sides, that the declarations referred to should be admitted subject to exception, and that either party should have the right, after they had been proved, to except to the admissibility of each and all of such declarations offered by the other, ³⁸⁸ so that the question of their admissibility might be brought up for review.

This, in our opinion, is the true and proper construction of the exception, and it follows that the question before us is, was there error in admitting any or all of the declarations offered and proved on the part of the caveatees ? The question, as thus presented, is a new one in this State. In the case of Collins vs. Elliott, 1 H. & J., 1 , all the attesting witnesses to the will were dead, and the declarations of the testator that he had made a will, and of the attesting witnesses that they had witnessed a will made by him, were offered in evidence by the party claiming title under the will, but the Court held that such declarations could “ not be received to establish the will,” and that “ proof of the hand-writing of the testator and of all the witnesses was necessary ” in order to let in the will as passing title to the land in controversy. In a subsequent ejectment for the same land, it appeared that two of the deceased witnesses were marksmen, and it was held that where witnesses have put their marks there must be proof that such marks are the marks of the witnesses.

Collins and Wife vs. Nicols and Wife, 1 H. & J., 399. In Massey vs. Massey, 4 H. & J., 145 , it was decided that the declarations of a testator to the effect that he believed he had destroyed his will, were not admissible for the purpose of proving a revocation. As to these propositions there can be no question. Neither the execution nor the revocation of a will can be proved by the mere parol declarations of the alleged testator that he had made, or destroyed it, for that would be in direct conflict with the requirements of the statute on these subjects.

Many of the authorities cited in argument go no further than this, and it is not necessary to notice them more particularly, as they have little or no bearing upon the question before us. In the case of Griffith vs. Diffenderffer, et al., 50 Md., 467 , the question arose how