Lindsay v. Wilson

Boyd, J., delivered the opinion of the Court. The bill was filed in this case by the appellee to require the appellant to specifically perform a contract to purchase certain real estate in the city of Baltimore. The appellee is the widow of Marshall Gulian Wilson and she claims title to the property through the will of her husband, which was executed ²⁶⁵ in France, where Mr. Wilson was domiciled at the time the will was executed, although he was a native of Maryland and was still a citizen of this country. The will was written in the French language and was entirely in the handwriting of the testator, but was not witnessed.

The heirs at law of Mr. Wilson intervened in this Court, by its permission, and counsel for them were permitted to argue the case. It is not denied that the will was executed according to the forms required by the laws of France, and the personal property left by the testator has been distributed to the appellee by the administrator cum testamento annexo of the estate. It is contended, however, that the will is not sufficient to pass the real estate of the deceased, which he acquired after the will was executed. The principal questions presented for our consideration are: 1st.

Isa holographic will, not witnessed but executed in accordance with the laws of the country in which it was made, by a citizen of this State domiciled in that country, valid to pass real estate in this State ? and 2nd. If that be admitted, did this will pass the real estate in question ? i. It must be conceded that at common law, and as a general principle of international comity, the lex loci rei sitce governs the formal execution, validity, etc., of wills of real estate, but it cannot be denied that a State can alter the general rule and provide by statute that such a will may be valid to pass real estate, if executed according to the laws of the place of its execution. Our first inquiry, therefore, will be directed to ascertaining how far the general rule has been changed in this State.

The Act of 1798, ch. 101, required “All devises and bequests of any lands or tenements, devisable by law" to be in writing, signed by the party (or some one in his presence and by his express direction), and to be attested and subscribed in the presence of the devisor by three or four credible witnesses. That language was continued in the Code of i860 (sec. 301 of Art. 93) and was the law of this State until 1884, when, by ch. 293 of the Acts of Assembly of that year, material changes were made by the Legislature. Prior to that ²⁶⁶ time' wills of personal property were not required to be witnessed, but by the Act of 1884, sec. 301, was amended so as to read “All devises and bequests of any lands or -tenements, or interest therein, and all bequests of any goods, chattels or personal property of any kind as described heretofore, shall be in writing and signed by the party so devising or bequeathing the same, or by some other person for him, in his presence and by his express direction, and shall be attested and subscribed in the presence of the said devisor by two or more credible witnesses, or else they shall be utterly void and of none effect.” That is now sec. 317 of Art. 93 of the Code of 1904. Section 306 as amended by the Act of 1884 provided that “no nuncupative will shall hereafter be valid in this State,” but authorized soldiers in actual military service, and mariners at sea to dispose of movables, wages and personal estate.

Section 307, as passed by the same Act (1884), provided that “Every will and other testamentary instrument made out of this State by a citizen thereof shall be held to be valid, if the same be made according to the forms required by the law of the place where the same was made, or by the law of the place where such person was residing when the same was made, and the said will, when so executed, shall be admitted to probate in any Orphans’ Court of this State.” By ch. 544 of the Acts of 1888, that section was amended by striking out the words “by a citizen thereof,” and in other respects remained as enacted by the Act of 1884. The Act of 1894, ch. 151, amended that section and is the present law of the State on the subject, being sec. 327 of Art. 93 of the Code of 1904, and will be referred to more particularly later on. In Olivet v. Whitworth, 82 Md. 258, we had occasion to consider this statute, as enacted by the Act of 1888, and we held that a holographic will, executed by Mrs. Olivet at Geneva in January, 1893, together with a holographic codicil executed at Nice in February, 1893 (neither of them having been witnessed), was a valid execution of a power reserved in a deed of trust, to nominate by her last will and testament the person or persons to wdiom certain money held in trust should ²⁶⁷ go after her death — thereby settling the question in this State in so far as personalty is concerned, but no real property was involved. We cannot understand, however, how any distinction can be made under this statute between real and personal property; since the Act of 1884.

The same formalities were required by that Act in the execution of wills of personal property as in those of real estate, and by sec. 301 it was declared that unless executed as therein required, “they shall be utterly void and of none effect.” Manifestly then a bequest of personal property, or a devise of real estate, not attested by two or more credible witnesses, was under that section utterly void, and the only provision that saved the will under consideration in Olivet v. Whitworth, from being so declared was sec. 307, as enacted by the Act of 1884 and amended by the Act of 1888. Inasmuch as the Legislature provided in sec. 307, that “Every will, and other testamentary instrument, made out of the State shall be held to be valid” if executed as therein stated, it cannot be said that some wills so made shall be valid, and others so made shall be invalid, without ignoring the express language of the statute. Section 307 was unquestionably intended to exempt a will made out of the State (if made according to the forms required by the law of the place where it was executed, or where the testator was residing) from the requirements of sec. 301, and as the Legislature saw'fit to require the same formalities in the execution of wills of personal property as in those of real property, the Court would not be justified in holding that sec. 307 was applicable to wills of personalty alone when the manifest intention of the Legislature was to apply it to both classes. It was suggested at the argument that other sections of Art. 93 tended to sustain the position of the heirs at law, and sections 344 and 347 of that Article (Code of 1904) were mentioned.

But we do not think they reflect upon the question before us. Section 344 simply makes provision for obtaining evidence of certain classes of wills out of this State. Section 347 authorizes any person interested in a devise or bequest of any property within this State, contained-in a will admitted to ²⁶⁸ probate and recorded in some other State or country, to procure a copy of the will with certificate of probate (properly authenticated), and file it in the office of the Register of Wills of any county or the city of Baltimore. The register is required to record it and a copy of that record is made evidence.

But we do not understand that either of those sections could be held to make any distinction between wills of real property and those of personalty since the Act of 1884 was passed, requiring them to be executed in the same way. Prior to the passage of the present law, validating wills made out of the State in accordance with the laws of the place where they are executed, of course wills of real property, in order to pass title to land in this State, were required to be executed according to section 301 (now 317) of Art. 93, but that does not throw any light on the question before us, as we must determine it according to existing laws. Nor can we see how section 329 of Art. 93, or section 79 of Art. 21, can aid us in reaching a proper conclusion. The former provides that every will “executed in due form of law” shall pass all the real estate which the testator had at the time of his death.

A will executed according'to section 327 is as much “in due form of law” as one executed as provided in section 317. The other statute referred to (sec. 79 of Art. 21) merely provides for deeds of conveyance- of lands in this State by executors of wills of non-residents, “executed with the formalties required for the passing of real estate by the laws of this State.” If it be conceded that that only referred to wills executed according to section 317 it would not reflect upon this case. That statute was originally passed in 1872, when no such statute as that now being considered was in force, and it presents a wholly different question. When-our legislators authorized foreign executors to thus sell real estate it was 'going quite far, but, as it was dealing with sales by them of real estate in Maryland, it was perfectly proper that the wills should be “executed with the formalities required for the passing of real estate by the laws of this State.” Whether or not that is broad enough to now include wills executed ac ²⁶⁹ cording to the laws of some other State is perhaps immaterial for the purposes of this case, but we do not want to be understood as intimating that it is not.

The Act of 1894, chap. 151 (now section 327 of the Code of 1904), makes the position of the appellee even stronger than it would have been under the Act of r888. That provides that “every will” made out of the State shall be held to be valid in Maryland (1) if “made according to the forms required by the law of the place where the same was made,” or (2) “by the law of the place where the testator was domiciled when the same was made,” or (3) “according to the forms required by the law of this State.” It will be observed that that Act gives the same effect to a will made out of the State according to the forms required by the law of the place where it is made, or by the law of the testator’s domicile, as to a will executed according to the forms required by the law of this State. In either case the statute declares the will “shall be held to be valid in Maryland — 'valid ’for what ? Unquestionably for all purposes of a will — to pass real estate, as well as personalty.

No one can doubt that it would be thus valid if executed according to the forms required by our law, and no rule of construction that we are aware of would justify the Court in holding that it would in such case be valid, but would be invalid if one of the other alternative methods authorized by the statuté be followed. That Act then provides that 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 will “then so executed shall be admitted to probate, in any Orphans’ Court of this State.” If the testator was not originally domiciled in Maryland, there is no provision in this statute for probate in this State, but then those interested in property (real or personal, as shown by the language of the statute) can procure a copy and have it recorded here under section 347 above referred to. The concluding part of this section will be considered under the second branch of this opinion. ²⁷⁰ It seems clear to us, therefore, that the statute now embodied in section 327 of Art. 93 is as applicable to wills of real estate as to those of personalty alone. We do not fear such results from that construction as was suggested at the argument.

Indeed there was perhaps more danger from wills made out of, or in this State, prior to 1884, than can possibly be feared now. As is well known, much of the most valuable property in the city of Baltimore, and some other parts of the State, is leasehold and as that is personal property under our decisions it passed by a will, or testamentary paper, sufficient to dispose of personal property. Devecmon v. Devecmon, 43 Md. 335 . As prior to 1884 it was not necessary to have witnesses to a will of that character, there was certainly as much, if not more, danger to be feared from such wills than from those -executed under the provisions of the statute now embodied in section 327.

As we have seen, the Act of 1884 making these radical changes in our laws applicable to wills expressly prohibited nuncupative wills, only making 'provision for soldiers in service and mariners at sea, and we. need not disturb ourselves about the suggested dangers of wills made in countries governed by uncivilized people, according to their forms. Our statute provides for wills made according to law, and it will be time enough to determine whether one made according to the customs of barbarians or savages is embraced in that term, when some person having property in Maryland attempts to follow such custom. But whatever the dangers may be, we must accept the law as it is, and follow what seems to us to be the clear intention of our law-makers. Counsel for the heirs at law have referred to statutes in a number of States and in' England to show that they provide that wills disposing of personal property, if made according to the forms of the domicile, are valid, while those devising real estate are still governed by the law of the situs, but that is a question for the respective Legislatures.

In Massachusetts, Connecticut and Wisconsin statutes very