McGarvey v. McGarvey

Murphy, C. J., delivered the opinion of the Court. Maryland Code (1974), § 4-102 of the Estates and Trusts Article (formerly Art. 93, § 4-102) provides that “every will shall be ... attested and signed by two or more credible witnesses in the presence of the testator.” A provision requiring witnesses to attest to a will has been part of the statutory law of this state since 1798 (see ch. 101 of the Acts of 1798), and a will not attested by the requisite number of subscribing witnesses is invalid. See Van Meter v. Van Meter, 183 Md. 614, 616 , 39 A.2d 752 (1944); Shane v. Wooley, 138 Md. 75, 77 , 113 A. 652 (1921). The issue in this case is whether a person convicted of attempted subornation of perjury may ²¹ validly attest to the execution of a will offered for probate in Maryland.

Appellant Raymond C. McGarvey, Jr., personal representative of the estate of Helen McGarvey Saul, offered for probate in the Orphans’ Court of Montgomery County a document executed on July 15, 1969 purporting to be Mrs. Saul’s last will and testament. Appellee Joseph J. McGarvey filed a caveat contesting the validity of the alleged will on multiple grounds, one of which was that one of the two subscribing witnesses, Raymond C. McGarvey, Sr. (McGarvey, Sr.), who was convicted in 1935 of attempted subornation of perjury in the District of Columbia, was not competent or credible to act as an attesting witness to the will. The caveator based his challenge on the provisions of Maryland Code (1957), Art. 35, § 1, in effect in 1969, which provided that “no person who has been convicted of the crime of perjury shall be admitted to testify in any case or proceeding whatever ....” 1 After the issues raised by the caveator were certified to the Circuit Court for Montgomery County for a jury trial, the appellee filed a motion for summary judgment on the issue of whether McGarvey, Sr.’s conviction rendered him an incredible or incompetent witness not qualified to act as an attesting witness to the will. The court (Frosh, J.) granted the motion, thereby denying probate to the alleged will.

It held that a credible witness is one “who is competent to testify at the time that the attestation of that person was made,” and noted that an individual convicted of perjury is not a competent witness in Maryland. Relying upon State v. Devers and Webster, 260 Md. 360 , 272 A.2d 794 , cert. denied, 404 U.S. 824 (1971), the court held that subornation of perjury is in substance the same as perjury; it concluded that McGarvey, Sr.’s conviction of attempted subornation of perjury was “by Maryland standards ... the same as a conviction of perjury” and that the witness was therefore not competent to attest ²² to the execution of the will. The caveatee appealed to the Court of Special Appeals. We granted certiorari prior to decision by that court to consider the important issue raised in the case.

We think the lower court erred in concluding that attempted subornation of perjury was the equivalent of perjury under the statute. We shall not, however, reverse the judgment on that ground since the statute has no application whatsoever to attesting witnesses to a will. The matter of disqualification of such witnesses is controlled entirely by the common law which we today hold does not bar a person convicted of any crime, including perjury, from performing the limited function of acting as a subscribing witness to a will, as opposed to testifying in court in proof of the will. In Shaffer et al. v. Corbett, 3 H. & McH. 513 (1797), the Court considered whether, under the common law rule that interest in a will would disqualify a beneficiary from testifying about it, an attesting witness who was the husband of a devisee under the will was a “credible” witness for the purpose of proving the will.

In reaching its determination that the witness could testify to prove the will if both he and his wife released their interests under it, the Court initially confronted the question of whether the witness met the requirement of “credibility” so that his attestation to the will could be considered in deciding whether the necessary number of attesting witnesses had been obtained. Since a question of a person’s credibility as a witness could not arise until he was sworn as a witness, the Court declared that the statutory requisite that an attesting witness be “credible” was a misnomer, and that word “must be rejected as superfluous.” Id. at 531 . Otherwise, it said, the jury would be required to conduct an inquiry into the credibility of every witness to a will before the court could admit the will to probate. Citing Blackstone’s Commentaries, the Court in Shaffer stated that any person who is not “infamous, insane, or so young as to want discretion” is capable of being an attesting witness to a will.

Id. It said that “[ejvery person who attests a will as a witness must be competent to attest the will at the ²³ time of attestation,” id. at 532 , so that an event occurring subsequent to attestation would be irrelevant in establishing the competency of a subscribing witness and the facial validity of the executed will. The Court concluded that the devisee’s husband was a “credible” (i.e. competent) witness to attest the will, since at the time of attestation he was not under any disability resulting from his wife’s being named as a beneficiary in the will. This was so, the Court reasoned, because until the time of the testator’s death no interest would arise under the will, but only the mere possibility of a gift that would be insufficient to render an attesting witness incompetent.

But, the Court continued, once the testator died, the interest of the witness would vest and he would not then be competent to testify in court to prove the will unless he renounced his interest under it. The Court held that, upon the execution of a release of his and his wife’s interest under the will, the husband was a credible witness for the purpose of proving the will. Id. at 535 . In Estep v. Morris, 38 Md. 417 (1873), the Court was asked to consider whether a subscribing witness to a will who was appointed under it as executor and guardian of several infant beneficiaries was a “credible” or competent witness to attest to and prove the will despite his interest in it.

In concluding that the word “credible” was surplusage as applied to attesting witnesses, the Court noted that “the common law required no particular or special qualifications in persons, to enable them to be attesting witnesses to wills,” id. at 425 , but noted the existence of common law disqualifications for infamy, interest, insanity, and infancy. The Court observed that ch. 109, § 1 of the Acts of 1864 (later codified as Art. 35, § 1 and now as §§ 9-101 to 9-105 of the Courts Article) removed some of these disabilities. That statute provided: “No person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest, from giving evidence, either in person or by deposition,... in any suit, action or proceeding, civil or criminal, in any court, ... notwithstanding that such person may or shall have an interest in the matter in question and notwithstanding that such ²⁴ person offered as a witness may have been previously convicted of any crime or offense; but no person who has been convicted of the crime of perjury shall be admitted to testify in any case or proceeding whatever----" (Italics supplied.) Estep pointed out that under the statute, persons who took an interest under a will were rendered competent to prove the will as witnesses after the testator’s death, since the common law incompetency by reason of interest had been eliminated from the law. As in Shaffer, the Estep Court emphasized the difference between competency to attest to a will and competency to testify in proof of the will, and the effect of that distinction when an attesting witness would gain some interest under the will: “We think it clear that, at common law, there could be no incompetency of subscribing witnesses to wills at the time of attestation, on account of interest in or under the will, but that persons who took an interest under the will, were incompetent to prove the will, after the death of the testator, solely because they were interested in establishing the will at the time they offered to testify, and that all incompetency by reason of such interest, has been removed by the Act of 1864, ch. 109.” Id. at 427 (emphasis in original).

While this statement makes it clear that ch. 109 removed interest from the category of disabilities which,