O'NEAL v. Jennings

Morton, J., delivered the opinion of the Court. Johnsy Beal Jennings, by her last will and testament executed on June 2, 1972, left all of her estate but $1,007 to her sister, Jeromia O’Neal. The will was presented for probate in the Orphans’ Court of Baltimore City shortly after the testatrix’s death on January 28, 1981. Thereafter, Harris O. Jennings, a nominal beneficiary, filed a caveat to the will, alleging (1) improper form, (2) lack of testamentary capacity, and (3) improper attestation.

The Orphans’ Court, finding a lack of legal attestation, denied the will for probate. The Superior Court of Baltimore City, after a trial de novo, concluded likewise. From the order of that court refusing probate of the will, Jeromia O’Neal, personal representative and principal beneficiary under the will, appeals. Mrs. Jennings summoned her attorney, Tucker Dearing, to her home for the purpose of executing her will.

The will bears the signature of the testatrix. It includes an attestation clause which reads as follows: "Subscribed by Johnsy B. Jennings the Testatrix named in the foregoing Will, in the presence of each of us and at the time of making such subscription. The above Instrument was declared by the said Testatrix to be her last Will and Testament, and each of us, at the request of said Testatrix and in her presence and in the presence of each other, signed our names as witnesses thereto, at the end of the Will.” There followed what appears to be the signatures, as witnesses, of Henry Woods and Emma C. Fitzgerald. The Maryland testamentary statute provides that a will is void unless it is in writing and signed by the testator and is attested and subscribed in the presence of the testator by ⁶⁰⁶ two or more credible witnesses.

Md. Estates & Trusts Code Ann. § 4-102. While the witnesses need not see the testator sign the will, if they do not, the witnesses must be apprised by the testator’s verbal declaration or conduct or by the instrument itself that this is the act of the testator. Woodstock College v. Hankey, 129 Md. 675, 680 (1916); Conrades v. Heller, 119 Md. 448 (1913). Mr. Woods testified in Superior Court that Mrs. Jennings sent her niece, Bertha Crawley, to bring Mr. Woods to her house; that when he got there, Mrs. Jennings, Ms. Fitzgerald, Mr. Fitzgerald and Mr. Dearing were present; that when the signing took place, Mrs. Jennings "said she was making her will and she wanted us to sign these papers.” Emma C. Fitzgerald, who was unavailable for trial in either court but whose deposition was taken shortly before her death, acknowledged the signature as her own, acknowledged Mrs. Jennings’ presence, and acknowledged that she was asked by Bertha Crawley to sign something for Mrs. Jennings.

The Orphans’ Court and the Superior Court refused, however, to permit the will to be probated because Ms. Fitzgerald swore in the eight page deposition taken without the benefit of cross-examination that no one told her, nor did she know, the nature of the document she was signing and that she did not know a Mr. Woods and Mr. Woods was not with her when she signed the will. While the attestation clause here states that the attesting witnesses signed their names in the presence of each other, the law does not require the witnesses to observe each other attest the execution of the will. Woodstock College v. Hankey, 129 Md. at 680 . The only material inquiry remaining then is whether the will was properly attested by Ms. Fitzgerald; in particular, whether she was apprised of the fact that the document was a will.

Judge Delaplaine, speaking for the Court of Appeals in Van Meter v. Van Meter, 183 Md. 614 (1944), has aptly described the burden the caveator bears before he can establish improper execution in the face of an attestation clause. It was said, at 617-619: ⁶⁰⁷ "The rule is well established that an attestation clause reciting facts necessary for the valid execution of a will is prima facie evidence of the due execution of the will, if it bears the genuine signatures of the testator and subscribing witnesses. Woodstock College v. Hankey, 129 Md. 675, 681 , 99 A. 962 ; Bioren v. Nesler, 77 N. J. Eq. 560, 78 A. 201 . The presence of an attestation clause with a recital of the formalities required by law is desirable for the purpose of furnishing presumptive evidence when the subscribing witnesses are deceased or beyond the reach of process, and serving as a safeguard against the danger of imperfect recollection or