Hunter v. Baker

Digges, J., delivered the opinion of the Court. Catherine Lee Rowland Thompson died near Hagerstown, in Washington County, Maryland, on October 10th, 1923. During the year 1917 the deceased was temporarily residing in the State of California, and on August 6th of that year-she made a last will and testament, in her own handwriting,, signed by her and witnessed by one witness. By this will she disposed of her property, consisting of personal property and real estate located in Washington County, Maryland..

At the time of her death she left surviving her a sister, Sallie K. Baker, her sole heir at law. By the provisions, of her will she bequeathed this sister the sum of fifty dollars; a niece, Esta Baker Kaylor, daughter of Sallie K. Baker,, five hundred dollars; and Mary F. Thomas five hundred dollars. The testatrix then, after providing for the erection of a monument, gave and devised all the rest of her estate,, real, personal, and mixed, to her two cousins, Jane H. Hunter and Alice A. Hunter, as tenants in common. By the sixth item of the will it was provided: “If after the-various bequests have been paid, my said two cousins, Jane H. Hunter and Alice A. Hunter, cannot divide the real estate to their entire satisfaction, I authorize and empower' and direct my aforesaid executrix to sell all such real estate that cannot be divided as aforesaid at either public or private sale and divide the proceeds of sale equally among my said two cousins, Jane II.

Hunter and Alice A. Hunter.’’ Jane II. Hunter was appointed executrix of the will. On October 23rd, 1923, Harry E. Baker, husband of Sallie K. Baker, was appointed administrator of the estate by the- ³¹⁰ Orphans’ Court of Washington County. The will was produced by Jane H. Hunter to the said Orphans’ Court and offered for probate in that court some time in the early part of December, 1923; whereupon the court fixed December 17th, 1923, as the time for a hearing with reference to the probate thereof; the date for the hearing being subsequently postponed to December 20th, 1923.

On the last mentioned date Sallie K. Baker, the heir at law, filed a caveat objecting to the probate of the will, and an order was passed by the court requiring Jane H. Hunter, the executrix, to answer the petition and caveat. This answer and the replication thereto were filed during the month of January, 1924. Ho further action appears to have been taken in the matter until July 25th, 1924, upon which date Jane H. Hunter, the executrix, and Sallie K. Baker, the sole heir, filed an agreement in writing, signed by both parties and their respective attorneys, in the following language: “Whereas, on or about the 11th day of December, 1923, Jane H. Hunter, party hereto, offered.for probate in the aforesaid court a certain paper writing purporting to be the last will and testament of a certain Catherine Lee Rowland Thompson, deceased, in which said paper the said Hunter was named as executrix, and to which said purported last will and testament a certain Sallie K. Baker, the only heir at law and distributee of the said decedent, did, on the 20th day of December, 1923, file a caveat or objection to the probating of said last will and testament and the proceedings relating to said offer of probate of said purported last will and testament and the caveat or objection thereto are now pending in the aforesaid court; And whereas, the said Sallie K. Baker and Jane H. Hunter, the executrix named in the said last will and testament, have agreed to mutually settle .and dispose of the respective contentions, relating to the probate or not of the aforesaid last will and testament; How, it is agreed, this 25th day of July, 1924, that the said paper writing purporting to be the last will and testament of the- said Catherine Lee Rowland Thompson, ³¹¹ deceased, shall not be admitted to probate, and that the aforesaid court shall refuse to admit said purported last will and testament to pro-bate, and that the costs in tlie aforesaid matter shall be paid out of the estate of the said decedent.” On the same day the following order was passed by the Orphans’ Court of Washington County: “There having been filed in this court for probate, on the 11th day of December, 1923, a certain paper writing purporting to be the last will and testament of Catherine Lee Rowland Thompson, deceased, and Sallie K. Baker having on the 20th day of December, 1923, filed a caveat to said paper writing, asking that this court refuse to admit said alleged will to probate, upon which caveat this court passed an order requiring Jane II. Hunter to answer and she having filed her answer on the 91 h day of January, 1924, to which answer replication was made by Sally K. Baker, and said Jane H. Hunter and Sallie K. Baker having this day filed in said proceedings a paper writing wherein it is agreed that said paper writing shall not be admitted to probate and that the court shall refuse to admit said purported last will and testament to probate, the court having read and considered all of the papers filed in said matter and said paper writing purporting to he the last will and testament of said Catherine Lee Rowland Thompson, deceased, bearing evidence on its face, that it had been destroyed before it was presented to the court, it is thereupon ordered, adjudged and decreed by the Orphans’ Court of Washington County this 25th day of eluly, A. D. 1924, that said paper writing is not the true last will and testament of said deceased and that probate of the same be and the same is hereby refused.

And it is further ordered that the costs of these proceedings he paid out of the assets of the estate of Catherine Lee Rowland Thompson, deceased.” There then followed an agreement between Sallie K. Baker and husband and Jane H. Hunter, making disposition of the ³¹² estate of the deceased. This agreement was entered into either on July 25th, 1924, or some subsequent date in July of that year, as the agreement recites: “It is agreed this day of July, 1924.” Alice A. Hunter, one of the principal beneficiaries under the will, predeceased the testatrix, and left surviving her, as her heirs and personal representatives, eight sisters and brothers, among whom were Jane H. Hunter, the executrix, and John S. Hunter, the appellant. In the division of the estate, as set forth in the agreement between the Bakers and Jane H. Hunter, the executrix and one of the devisees and legatees, it was provided that the costs of the proceedings in the orphans’ court be paid out of the estate; that Harry E. Baker, the administrator, be allowed commissions of three per cent, upoii the personal estate which had come into his hands; that after the payment of the costs and commissions and any debts for which the estate might be liable, including taxes, out of the balance Harry E. Baker and Sallie K. Baker should pay the two legacies, each of five hundred dollars, provided for in the will, to Mary F. Thomas and Esta Baker Kaylor, and the remainder of the personal estate should be divided between Sallie K. Baker and Jane H. Hunter, the former receiving fifty-five per cent, thereof, and the latter forty-five per cent. As to the real estate, it was provided that Sallie K. Baker should dispose thereof by public sale, and after paying costs and expenses of the sale, and taxes, the proceeds thereof, including the rents to the date of sale, should be divided between Jane H. Hunter'and Sallie K. Baker in like proportion as set forth in respect to the personal property.

This agreement provided that the sale of the real estate should be made on October 1st, which was done, and the property sold in three parcels and conveyed respectively, first, to Ray R. Reed and Bertha M. Reed; second, to the Hagerstown Shoe & Legging Company, and third, to George W. Hull, by deeds of Sallie K. Baker and husband duly executed and recorded among the land records of Washington County; the grantees in these three deeds being among the defendants made in the petition of the appellant, the other defendants being the heir at law of the deceased, and her ³¹³ husband, tie surviving legatees named in the will, and the heirs -at law and personal representatives of Alice A. Hunter, a deceased devisee and legatee named under the will. Subsequent to the order of the orphans’ court refusing probate of the will, Harry E. Baker, the administrator of the estate, filed his first and final account on August 11th, 1925, which was duly approved by the said court. On November 5th, 1926, the appellant filed a petition in the Orphans’ Court of Washington County, the facts above set forth being a substantial recital of the allegations of his petition, and praying that the order of the orphans’ court, passed July 25th, 1924, wherein the probate of the late will and testament was refused, be rescinded and annulled, and that said last will and testament be admitted to' probate. To this petition answers were filed by certain of the defendants, to which answers a general replication was filed and testimony taken; whereupon the orphans’ court, by order dated September 9th, 1927, dismissed the petition of the appellant.

From that order the appeal here was taken. The record discloses that Susan E. H. Williams, ai sister and heir of Alice A. Hunter, on September 22nd, 1925, filed a petition in the orphans’ court, similar to the one filed by tho appellant in this ease, and asking for the same relief. Before the petition of Susan E. H. Williams was heard, an agreement was readied between her, on the one part, and Sallie K. Baker and Jano H. Hunter on the other, whereby Mrs. Williams received a sum equivalent to that to which she would have been entitled as heir at. law of Alice A. Hunter under the terms of the will. Whereupon the orphans’ court passed an order on January 4th, 1926, that the proceedings under tho Williams petition should cease, and that upon the court being satisfied that there had been paid by the respondents to the petitioner, Mrs. Williams, the sum ascertained by the auditor of the court which would he due her under the provisions of the alleged will of Catherine Lee Howland Thoinpson, deceased, if said will had been probated and the estate had been distributed in accordance with its provisions, and that they, the said respondents, had paid the costs, so far in ³¹⁴ .curred in these proceedings, there should be passed a further order dismissing the petition of Mrs. Williams. .There is also’ in the record an opinion of the court, stating its reasons for passing the last above mentioned order*, in which it was said: “As further proceedings in this matter would be involved, should Mrs. Williams be successful in what she has prayed for, and there would he an interference with the rig’hts of others who have obtained possession of the estate of Mrs. Thompson through the administrator, and in the view of the offer now made to settle this litigation, in the opinion of the court, further proceedings would be futile, inasmuch as they would result in the obtaining by Mrs. Williams of nothing more than she will obtain under this offer of settlement, the court is of the opinion that further proceedings in this case should cease and will pass an order that, upon being satisfied of the payment of the amount as ascertained by the auditor of this court, the register of wills, which would be due to Mrs. Williams had said alleged will been admitted to probate, and also being satisfied of the payment of the costs already incurred in these proceedings, they will pass a further order dismissing the petition of Mrs. Williams.” As will be seen, the facts presented by the record are somewhat involved, and we have deemed it necessary to set out at some length these facts.

The important questions of law raised by the appeal are, in our opinion, two: First, was the order of the orphans’ court passed on July 25th, 1924, refusing probate of the alleged last will and testament of Catherine Lee Rowland Thompson, valid, and, second, if not, has the appellant been estopped by his failure to act for more than two years after the passage of that order? The contention of the appellee is that- both of these questions should he answered in the affirmative. We will consider them in the order stated. A preliminary question arises in the case as to whether the paper writing’ alleged to be the will bore evidence on its ³¹⁵ face of its invalidity: First, because there was only one witness to the will, and, second, because when presented to the orphans’ court it bore evidence of its having been torn in several pieces and these pieces pasted together by the use of transparent paper.

In respect to the witnessing of the will, it is agreed that it was executed in compliance with the laws of the State of California, where the testatrix was residing at the time of its making. The question in this respect, then, is: Is a will executed in conformity with the laws of the temporary domicile of the testatrix valid in this state when it does not conform to the law of Maryland as to execution? Section 344 of article 93 of the Code provides: “Every will or other testamentary instrument executed without this state in the mode prescribed by law, either of the place where executed or of the testator’s domicile, or according to the forms required by the law of this state shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the law of this state, provided, said last will and testament is in writing and subscribed by the testator; and if the testator was originally domiciled in Maryland, although at the time of making the will or at the time of his death he may be domiciled elsewhere, the said last will or testamentary instrument so executed shall be admitted to probate in any orphans’ court of this state.” Under the provisions of this section, the execution of the will being in conformity with the law of California, and being in writing, signed by the testatrix, it was a valid will so far as the execution thereof is concerned. The legal effect of the paper, as offered for probate, being torn, depends upon whether or not its mutilation was done by the testatrix with the intent thereby to revoke and cancel the will.

Section 333 of article 93 of the Code provides: “No will in writing devising land, tenements or hereditaments, or bequeathing any goods, chattels or personal property of any kind, as heretofore described, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, ³¹⁶ or by burning, canceling, tearing or obliterating tbe same, by the testator himself or in bis presence, and by bis direction and consent; but all devises and bequests so made shall remain and continue in force until tbe same be destroyed by burning, canceling, tearing or obliterating tbe same by tbe testator or- by bis direction, in manner aforesaid, unless tbe same be altered by some other will or codicil in writing, or other writing of tbe devisor signed as hereinbefore said in tbe presence of two or more witnesses declaring tbe same.” It can only be revoked in tbe manner prescribed by tbe statute. Woodstock College v. Hankey, 129 Md. 683 ; Sewell v. Slingluff, 57 Md. 548 ; Byers v. Hoppe, 61 Md. 211 ; Wittman v. Goodhand, 26 Md. 106 . Tbe will in this case bad been subjected to such treatment as would revoke it, provided tbe tearing bad been done by tbe testatrix while of sound and disposing mind, and with tbe intent that her act should operate to revoke tbe will. It bad been torn, one of tbe methods provided by tbe statute for revoking a will; but it does not follow that every will which is presented in such condition should be refused probate, for it may well be that tbe tearing was done by some person other than tbe testator, of, if done by tbe testator, that it occurred accidentally, with no intention to revoke, or was •done when tbe testator lacked tbe mental capacity which tbe law requires for such an act.

No will can be revoked unless tbe testator has, at tbe time of revocation, tbe capacity to understand tbe nature and effect of tbe act, and such act must be free and voluntary, and tbe standard of mental capacity necessary to revoke a will is tbe same as that requisite for its execution. Bagby’s Executors and Administra- tors, p. 11; Rhodes v. Vinson, 9 Gill, 170 ; McIntire v. Worthington, 68 Md. 206 ; Preston v. Preston, 149 Md. 498 . While the paper presented to the orphans’ court by tbe executrix bore evidence of its having been torn, it also showed that Catherine Lee Rowland Thompson bad at one time made a will, in form capable of passing real and personal property in this state, and tbe orphans’ court should have required testimony under oath in respect to tbe method ³¹⁷ bv which she came in possession of the paper, evidence of the circumstances surrounding the tearing thereof, and the mental condition of the testatrix at that time, if the evidence showed that the testatrix had torn it. If the record showed nothing to the contrary, we would be bound to presume that the orphans’ court had performed its duty before passing the order refusing probate of the torn will; but the record does show that the executrix and custodian of the will had one or more conversations with the register of wills in respect to the offering for probate of tbe paper in question, and that the register of wills was told by the executrix that the will was torn “in a scuffle” between the testatrix and her cousin, Alice A. Hunter.

The register of wills testified that he thinks he communicated tiffs information to the orphans’ court. lie further testified as follows: “Q. Did she tell you how it became torn ? A. I don’t recall anything more than that she stated it had been done by the decedent, because I was particular to inquire into that question. I Avantecl to know who had destroyed this paper or tom it, before it was presented. Q. When was it tom by the decedent?

A. The time I cannot state. Q. She didn’t mention any approximate time? A. If they did say I don’t recall. Q. Did they say where ?

A. I don’t recali that. Q. Do you know what year ? A. I cannot fix that. Q. Or liow long before the death of decedent?

A. Ho. Q. Did they tell you anything about the state of mind of the decedent when it was torn? A. Yes, she intimated that it was her impression that when decedent destroyed the paper that she was not of sound mind. At least I have that impression.

Q. What was said that gave you that impression ? A. I don’t know of anything in particular that was said, but just my conversation that I held with Miss Hunter at that time. I told her it was my impression that it was not a will, but she insisted that she wanted to present it to the court for probate. I suggested that .she employ counsel, but she preferred to bring tbe matter to the court personally.” The witness first testified that the executrix was accompanied by her sister Lucy Hunter, later correcting himself by stating that she was accompanied by ³¹⁸ Mrs. Stigers instead of Lucy.

Before this correction he was asked: “Q. Did Miss Lucy take any part in this conversation ? A. I am inclined to think that -she did; I think T talked to both the ladies. Q. They both thought she was of unsound mind at the time she tore the will, the decedent ? A. I cannot say if both expressed that opinion, or whether expressed by one, or whether I gathered from the condition of affairs, or conversation.

I have no distinct recollection of how I got the idea, but I got it from some source that that was their idea. Q. Do you know whether or not, Mr. ILollyday, this will was torn by the decedent at the home of Miss Jane Hunter? A. I don’t know anything about the tearing of it except what the ladies- told. If they told me where it was torn I do not recollect it.

The only ideas that remained with me that I gathered from them was, that it had been torn by the decedent and had been pasted together by some other person. * * * Q. Can you give the date about when Miss Jane Hunter presented this will and made those statements? A. This paper was filed in this office for probate on the 11th day of December, 1923. I do not know whether or not I had a conversation with Miss Hunter prior to that date or not. I may have talked to her in regard to it before that date.

It was left on that date and has remained here ever since. Q. Did you make any record of what they said ? A. I did not at that time; I was only talking in an ordinary conversation;, Miss Hunter wasn’t testifying as a witness.” In the beginning of his testimony this witness stated as follows: “Q. At the time this alleged will was brought to you by Miss Jane Hunter did you ask her the usual questions how she obtained that paper ? A. I questioned Miss Jane Hunter in regard to this paper writing; just the exact questions I asked her I don’t recall, but I did question her about it.

Q. What did she tell you about the paper ? A. The paper when brought to me appeared on its face, that it had been torn into a number of pieces and had been pasted together. I questioned Miss Hunter in regard to this matter, as to how the paper might have been torn, and was informed that it had been torn by the decedent. I then asked her who pasted it together, and was ³¹⁹ informed that it had been pasted together by some person other than the decedent, I don’t recall who she stated had done it, but I do know it was some one other than the decedent. * * * Q. Did you communicate the information you obtained to the court ?

A. I think that I did. Q. Did she say when it had been put together? A. No, I am not clear as to the time it had been pasted together; my impression is that it was very shortly after it had been torn to pieces, that the pieces had been gathered up and pasted together, but I am not so suro .about the time. Q. Did she tell you where the pieces were found ?

A. I have no distinct recollection of her stating where they were found; she probably told us, but I do not recall at this late date.” The witness Mrs. Stigcrs, who was present at the time of the conversation between the testatrix and the register of wills, in speaking of that conversation, testified: “Q. What, if anything, did Miss Jane Hunter tell Mr. Hollyday with reference to the tearing of this will ? A. She told him that it was torn. I don’t know just how much I can tell. And she was very much excited; that is, Catherine Lee Thompson was, my cousin.

Miss Hunter, she wanted to probate the will. Mr. Hollyday said she better get counsel. That was the time I was with her. I was only with her the one time, that is when she first presented it; and Mr. Hollyday, that is all he said.

Q. Did she say when this will was torn? A. Yes, she told him it was torn. Q. When did she say it was tom? A. After she came from 'California; directly after Kitty came from California and was in a high statement of excitement she got in the desk and other papers.

Q. Just relate what Miss Jane said to Mr. Hollyday? A. Miss Jane asked Mr. Hollyday about the will for probate and Mr. Holly-day took the will and read it and told her she needed counsel on it, and then he asked about the tearing of it and she told him, as near as I remember, that it was tom when Kitty Lee Thompson was in a high statement of excitement, gathering up things for fear something would happen to the Hunter family; she got my sister Jane’s papers, where the will was kept and some of my sister’s papers, and my sister Alice, in ³²⁰ getting them away from her and getting her quiet, they were torn and several other papers. Q. Did Miss Jane explain how the will was repaired as you see it now? A. Yes.

Q. What did she say to Mr. Hollyday on that occasion as to how it got tom ? A. In gathering up the things, she was in a high state-of excitement and my sister Alice in getting the papers from her, that is the way the will was tom ? Q. Can you remember the time at which she said it was tom ? A. Just before they took her to Sheppard-Pratt.

Q. Did Miss Jane tell Mr. Hollyday when the will was tom? A. That I don’t remember ; she may have, I don’t, remember that. Q. She didn’t fix' the time ? A. I never heard any time.

Q. Did she tell where-it was torn, at whose house it was torn ? A. At Tower Hill and in Jane’s room; Mr. Hollyday didn’t ask where it was. torn, but he asked how it was torn. Q. Did she tell Mr. Hollyday what was the state of mind of Catherine Lee-Rowland Thompson at the time she tore it? A. Yes.

Q. What did she say ? A. She was very much out of her mind. Q. At the time she tore the will ? A. At the time she tore the-will.” On cross-examination this witness stated: “Q. When, did this conversation t¿ke place with Mr. Hollyday and your sister Jane?

A. As I told you before, I think it was in the-fall sometime. It was the first time she brought the will to-the court; you must have it down. The first time I was with her and the only time. Q. Who were present at the interview between your sister and Mr. Hollyday ? ■ A. No one but' Mr; Hollyday and my sister and myself. * * * Q. Your sister didn’t say anything as to where this will was tom; she simply told how it was torn ?

A. She told him she got it out of' her desk; she was excited, and Alice tore it in getting it' away. Q. So as a matter of