Lungren v. Swartzwelder

Miller, J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Washington County, admitting to proba,te the following paper as the last will and testament of Peter Swartzwelder : “Hagerstown August 11th 1875 — what I oiven is as “ follows: “Brick house on the publick — with six store-rooms, from “William Householder’s property, on the publick square, “ to Samuel Rouskuep hat store, on West Washington “street “ Hagerstown Lyceum Stock, Thomas Harbine (Presi- “ dent) 4 Shears $5 $ har. Hagerstown Lyceum Stock, William M. Marshall (C 20 shears “ Prest. “ “ “ 20 do “ do “ do “ ■ “ “ 20 do “ . do “ “ “ 10 do “ shears Waynsborro’ Turnpik Company at $25.00 “ shear “4 shears Hagerstown and Sharpsburg Turnpike at “ $25 shear ⁴⁸⁷ “ Northe-n Pacific Railroad bonds ($7000) seven tliou- “ sand dollars “ First National Bank Stock, Hagerstown Ma-yland 28 “shears. “ Hardware store No 1 on Corner of the publick Square. “Hagerstown Gaslight Company 25 shears (I). Artzs, “ Presid-nt) Seventy dollars on each shear has bin paid. “ To Franklin Swartzwelder Heard two thousand dol- “ lars out of thepr. eeads of the sale of hous- on the pub- “ lick square. “Sarah Swartzwelder of Cuberlend, Myland, b-other “ Isaac’- widdow one thousand or perhaps tu thousand “ dollars, after the sal- of property on the square ££ House whare I now live on West Washington Street No 82, to be sold. £ £ My houses to be sold and the proceads paid over to the respective parties named in my will, perhaps J. W. if he qits dukg. ticker. “I appoint for my administreatirs Harry Swartzwelder “ of Cunbeirtand Mayland, and Franklin A. Heard, of “ Hagerstown Maryland.” Peter Swartzwelder.” The case was tried in the Orphans’ Court upon testimony which appears in the record, and their order is before us for review upon facts as well as law.

The legal principles which control Courts in the decision of such cases have been so often and so clearly stated by the authorities in our own State, that it is quite unnecessary to reiterate them here. The whole subject has been elaborately discussed in Tilghman vs. Stewart, 4 H. & J., 156 ; Boofter vs. Rogers, 9 Gill, 44 ; Plater vs. Groome, 3 Md., 134 ; Barnes vs. Syester, 14 Md., 507 ; Harris vs. Pue, 39 Md., 535 ; Mason vs. Poulson, 40 Md., 355 , and Devecmon vs. Devecmon, 43 Md., 335 . It appears from the proof that the paper before us was written and signed by the deceased and there is nothing ⁴⁸⁸ to show it was signed on a different day from its date. He died about the 14th of December, 1875, aged about seventy-two years and had never been married.

He bad been engaged in the hardware business, was an intelligent, prosperous and good business man, and left real estate consisting of a dwelling house and warehouses in Hagerstown, valued at about $80,000, besides personal property. After the date of this paper and during the autumn, his health was feeble, but he was still able to go to his store and attend to his business. His mental faculties remained unimpaired, and he was capable of executing a valid deed until at least a few days before his death. As respects his mental and hodily condition, there is no proof tending to show he was prevented by sudden sickness, or anything which the law would pronounce an act of God, from perfecting it or executing a formal will capable of passing his real as well as personal estate, for more than three months after the date of this paper.

It cannot therefore be upheld as a will upon that ground. It was found in his safe at his store, in a pocket book, with some notes and certificates of bank and other stocks. But this fact of itself does not make it a will. The place of deposit and the care with which it was kept, are merely circumstances to be considered and weighed with all the- other facts of the case, in solving the question whether the party in-tended it as his will or not.

In the absence of proof to the contrary we must assume the paper was written and signed on the day it bears date. The questions then for us to determine are, did he write it animo testandi, that is, did he then intend the paper as it stood, to be his will without alteralion and without looking to anything further to be done in order to perfect it? or did he afterwards recognize and adopt it as his will ? To give a satisfactory answer to these questions we must first look to the paper itself and the intrinsic evidence it furnishes. What is it and what does it profess ⁴⁸⁹ to be ?

It no where on its face professes to be the will of the writer. The major part of it is simply a statement of what he owned, in form and in fact an inventory, or a schedule of his property. That is followed by three clauses indicating who should receive portions of it, (and as to one of these he had not made up his mind as to the amount, and as to another, was undecided whether he would give him anything) by a will to be thereafter executed. He would give to one $2000 out of the proceeds of the sale of his house.

To his brother’s widow he would give one or perhaps two thousand dollars,