Morsell v. Ogden ex rel. Morsell

Goldsborough, J., delivered the opinion of this Court. The appeal in this case is taken from a decree of the Orphans’ Court of Calvert County, by which the paper writing set out in the record, marked A, and purporting to be the last will and testament of Eliza Morsell, was admitted to probate. The objections urged by the caveators to the admission of this paper writing to probate are, that it “ was not executed by Eliza Morsell in her life time in due form of law, as and for her last will and testament, nor by her intended and declared as and for her last will and testament.” The caveatee, by his answer, does not deny the allegation of the caveators as to the non-execution of the paper writing, but says “that the said paper was intended as and for her last will and testament by said Eliza Morsell, and that the same is sufficient to convey the personal poroperty of the said deceased.” The provisions of the paper writing, marked A, are very brief, and may be concisely stated: The testatrix gives and devises to her brother, Quincy A. Morsell, 'certain enumerated slaves, together with all her property, real, personal and mixed, of which she might die seized and possessed, or in any way entitled to, during his natural life, in trust for the separate use of her niece, Elizabeth R. Morsell, daughter of said Quincy A. Morsell, he to have the management and control thereof, and to appropriate the income from the property towards the education, support and maintenañce of said Elizabeth ; and after the said Quincy’s death the whole property is bequeathed to Elizabeth, absolutely to her and her heirs, ³⁸⁰ to hold the same without the intervention of a trustee; and Quincy A. Morsell is appointed sole executor. The paper writing under consideration is not signed by Miss Morsell, nor are the blanks filled up; and though there is an attestation clause, no witness signed it.

She never saw it, but it was found in the possession of Mr. Williams the attorney who prepared it, and produced by him after the death of Miss Morsell. We are therefore left to determine, from the evidence presented in the record, whether a paper thus offered for probate is sufficient in law to convey personal property as contended for by the appellee. Mr. Williams, who prepared the paper, testifies that in the summer of 1862 he was called on by Mr. Quincy A. Morsell to prepare a will for his sister, Miss Eliza Morsell, leaving all of her property to her brother, the said Quincy, during his life, in trust for his child Betty, and appointing him executor. Miss Lizzy Gfamber testified that she resided in the house with Miss Eliza Morsell from June, 1863, to the 5th of January, 1864, when she died.

That about twelve days before her death Miss Morsell told witness that Mr. Henry Williams had prepared a will for her, but it had not been signed, and she was prevented by paralysis from executing it, and it was afterwards lost. That she at one time had a will prepared leaving all her property to her niece, Betty Morsell, child of her brother Quincy. Mr. Williams further testified that about four weeks before the death of Miss Morsell, Quincy A. Morsell gave him instructions to prepare a 'will similar to the first, which he did in about a week after receiving instructions. That he had not retained a copy of the first will, and prepared the second from two forms which he used in the preparation of the first, and that the second will, although not identical in language, was in effect the same.

That ³⁸¹ lie never had any conversation with the said Eliza on the subject of making her will, and never received any instructions directly from her, and does not think he ever