Rabe v. McAllister

Parke, J., delivered the opinion of the Court. Pauline Gottschalt, a citizen of Germany, whose domicile is Baltimore City, in the State of Maryland, died on or about May 22nd, 1937, in Oberkesselsdorf, Silesia, Germany, where she resided at the time of her death. The decedent had lived for many years in Baltimore City. She executed there, on June 7th, 1927, a will which disposed of all her property.

After the usual provision for the payment of her debts and funeral expenses, she directed that her executrix should have her body sent to Germany for interment in the family vault and that her executrix make provision to keep the vault in perpetual care. She then devised and bequeathed absolutely to her nephew, Paul J. Hentschel, all of her property of every kind and wheresoever situate. The executrix appointed was Amelia H. Hentschel, the wife of Paul J. Hentschel. After the death of Pauline Gottschalt, this will was, on December 1st, 1937, admitted to probate by the Orphans’ Court of Baltimore City.

Upon the renunciation of the executrix, Joseph L. McAllister was appointed by that court the administrator with the will annexed. He qualifiéd and is engaged in the administration of the estate. The assets are a deposit of $25,000 in a savings bank of Baltimore City, and 10,000 marks, or about $4000, in Germany. Subsequently to' these proceedings, there were filed on August 25th, 1938, in the office of the register of wills for Baltimore City, two holograph wills which the decedent had executed in Germany.

The first is dated April 29th, 1933, and the second May 23rd, 1935. The decedent had gone to Germany in 1927, and had stayed there until her death. These wills are short, and were written in German. Their translations follow in the order of their execution: ¹⁰¹ “My Last Will “In case of my death I appoint as sole heir Karl Ritterfeld, teacher of Kesselsdorf, with the provision to give the Evangelical Church Congregation Kesselsdorf, as legacy the sum of 2 thousand two thousand marks.

The heir Karl Ritterfeld can give to the relatives according to his own discretion. “Kesselsdorf, April 29, 1933. “(Signed) Pauline Gottschalt.” The second paper reads: “I have executed a Last Will, which is in possession of the Reverend Pastor of Kesselsdorf and Mr. Ritterfeld, teacher, now in Petersdorf, Riesengebirge. I revoke this Last Will and provide that my heirs themselves shall keep the vault in order. “Oberkesselsdorf, May 23, 1935. “(Signed) Pauline Gottschalt. “3 words cancelled.” These holograph wills are valid testamentary papers in Germany. They were there admitted to probate and recorded. Their copies and the certificates of probate and their authentication were duly presented to the register of wills for Baltimore City, who filed the documents in his office on August 25th, 1938.

Code, art. 93, sec. 364; Wright v. Gilbert, 51 Md. 146 ; Beatty v. Mason, 30 Md. 409, 412 ; Lindsay v. Wilson, 103 Md. 252, 267 , 63 A. 566 ; Olivet v. Whitworth, 82 Md. 258, 276 , 33 A. 723 . With only these two documents before it, the express revocation of the first by the second caused the probate court in Germany to declare and certify that the legal order of succession took effect, and that the heirs had been proved by the court’s included certificate of inheritance of July 29th, 1937. Among the heirs at law so certified is Helene Rabe, of Lowenburg, Silesia, Germany, who, through her attorney, filed on November 20th, 1938, a petition wherein it is alleged that the two later holograph wills supersede the first will of June 27th, 1927, under which Joseph L. McAllister has been ap ¹⁰² pointed administrator cum testamento annexo; and, consequently, the entire property of Pauline Gottschalt passes to the heirs at law set forth in the petition. The relief prayed by the petition is that probate of the first will and the grant of letters thereon of administration cum testamento annexo be revoked; and that the third will be declared operative, and that letters of administration cum testamento annexo he granted on the final will unto the lawyer for the plaintiff.

On this petition there was an order nisi passed which brought the matter before the court. After hearing, it was determined that the first instrument was not revoked but was a final and effective last will and testament to the extent not inconsistent with the will of May 23rd, 1935. The appeal is from this decision and the dismissal of the petition of Helene Rabe. As the second and third wills are validly executed under the German law, and as the testatrix was originally domiciled in Maryland, although at the time of making the wills or at the time of her death she may be domiciled elsewhere, the statute enacts that the wills shall be admitted to probate in any orphans’ court of the State, and when so admitted shall be governed by and construed and interpreted according to the law of Maryland, without regard to the lex domicilii, unless the testator shall expressly declare a contrary intention in said will or testamentary instrument.

Code, art. 93, sec. 344; Lindsay v. Wilson, 103 Md. 252, 266 , 63 A. 566 ; Olivet v. Whitworth, 82 Md. 258, 276 , 33 A. 723 ; Johns Hopkins University v. Uhrig, 145 Md. 114 , 125 A. 606 . Furthermore, the statute provides that no will in writing containing a devise or bequest, “nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same, by the testator himself or in his presence, and by his direction and consent, but all devises and bequests so made shall remain and continue in force until the same be destroyed by burning, cancelling, tearing or obliter ¹⁰³ ating the same by the testator or by his direction, in manner aforesaid, unless the same be altered by some other will or codicil in writing or other writing of the devisor signed as hereinbefore said in the presence of two or more witnesses declaring the same.” Article 93, section 333. It should be observed that modes of revocation given in the statute are not exclusive, since there may be an implied revocation, as where the subject matter of testamentary disposition is not the property of the testator at the time of his death (Krieg v. McComas, 126 Md. 377, 382 , 95 A. 68 ; Joynes v. Hamilton, 98 Md. 665, 683 , 57 A. 25 ) ; or, generally, if, after the time of the execution of the will, the testator should marry and have children born of this marriage who are not provided for (Sedwick v. Sedwick, June Term, 1884, unreported; Baldwin v. Spriggs, 65 Md. 373, 380 , 5 A. 295 ; Redwood v. Howison, 129 Md. 577, 589 , 99 A. 863 ) ; or, as provided by statute, there is a later inconsistent or revocatory will or testamentary paper which is executed in conformity with the law of the place of its execution, or of the testator’s domicile or of this State. Code, art. 93, sec. 344; Lindsay v. Wilson, 103 Md. 252, 266 , 63 A. 566 ; Olivet v. Whitworth, 82 Md. 258, 276 , 33 A. 723 ; Gardner v. McNeal, 117 Md. 27, 31 , 82 A. 988 .

Since the testatrix was domiciled in Maryland when she executed the first will, and had not lost her domicile by her residence abroad, the question of the revocation of the probate of a will and of the granting or refusing to grant probate are a matter within the exclusive jurisdiction of the Orphans’ Court. It had, therefore, to determine whether the probate of the first will should be revoked, and whether the second and third holograph wills should be admitted to probate or should be rejected. Home for Aged v. Bantz, 106 Md. 147, 152 , 66 A. 701 ; Johns v. Hodges, 62 Md. 525 . The first will of 1927 was impliedly revoked by the second, and first holograph, will of 1933.

The record is clear and without conflict that all the property disposed of in the first instrument is the identical property which ¹⁰⁴ was intended to pass under the second. As the disposition of the identical property in the second will is wholly inconsistent with that of the first, the second will revokes by implication, and supersedes, the first will. Gardner v. McNeal, 117 Md. 27, 31 , 82 A. 988 . The second will, however, may not be admitted to probate because it was specifically and unqualifiedly revoked by direct and plain terms of the third, and second holograph, will of 1935.

Colvin v. Warford, 20 Md. 357, 391 , 394: Thus the problems of the Orphans’ Court were (1) whether the probate of the first will of 1927 should be revoked, and in the place thereof, the third will of 1935 be admitted to probate as the sole last will of the decedent; or (2) whether the probate of the third will be rejected, and that of the first will be affirmed; or (3) whether the probate of the first will should be affirmed, and the third will be admitted to probate, in order that the two should together constitute the will of the testatrix. In the determination of these questions of probate, the orphans’ court has exclusive jurisdiction. The primary and fundamental requisite for admission to probate is a valid will. Not only does the validity of a proffered will depend upon its form and execution, but it must be in existence as a testamentary instrument as of the death of the testator.

To be thus effectively in existence, the will need not be an exclusive nor complete disposition of the estate,