Safe Deposit & Trust Co. of Baltimore v. Thom

Thomas, J., delivered the opinion of the Court. On the fifth of July, 1911, Charles E. Rieman of Baltimore County, Maryland, filed in the Orphans’ Court of said county a petition in which he stated that his mother, Annie Lowe Rieman, of said county, died on the third of March, 1911, leaving as her only heirs at law and next of kin two daughters, namely, Mary Isabel Thom, of Baltimore City, and Charlotte Rieman McIntosh, of Baltimore County, and three sons, Carlton Alexander Rieman, of Baltimore County, the petitioner and Perlee L. Rieman, who has been adjudicated non compos and whose trustee and committee is the petitioner. The petition further averred that the petitioner ¹⁵⁶ and bis two sisters and his said brother, Carlton Alexander Rieman, some days after the death of his mother made diligent search among her papers for the purpose of ascertaining whether she left a will, and that they found the will hereinafter referred to among her private' papers; that upon examination of the same in the presence of his said brother and sisters and George R. Willis, Esq., an attorney at law of Baltimore City, he discovered that “the face of the paper contained evidence of the erasure, or attempted erasure of the first item of the will;” that subsequently Mr. Willis informed the petitioner and his said brother and sisters that the deceased had told him that she had erased the “First Item,” and had given him her reasons for so doing. The petition then stated that said will when found was in a sealed envelope in which was also enclosed a letter addressed by the deceased to Mr. Willis ; that the will and letter had been in the possession of the petitioner ever since the envelope containing them had been found, and were “in the same condition in which they were when so found,” and that he presented them, with said petition, to the Court for such action $ as might be proper to be taken in connection with the probate of said will or instrument of writing.

By agreement of counsel representing all persons interested in the estate and The Safe Deposit & Trust Company of Baltimore, appointed trustee by said will, said trustee, after notice to the heirs of law and next of kin of the deceased, on the thirteenth of July, 1911, presented and propounded the will for probate in said Orphans’ Court, and thereupon Mrs. Thom and Mrs. McIntosh filed in said Court .their petition charging that the deceased had erased the first item of the will; that her said act operated as a cancellation and revocation of said item and of the whole will, and that she intended that it should so operate, and praying that said will be by said Court-declared cancelled and revoked, and that said trustee, the said Charles E. Riemans trustee and committee for Perlee Lowe Rieman, and Carlton Alexander Rieman and Charles E. Rieman, named as executors of the ¹⁵⁷ will, be required to answer, etc. This petition was answered by The Safe Deposit and Trust Company, trustee, denying that the will or any part of it had' been revoked. The answer of Charles E. Pieman and Carlton Alexander Rieman, executors, states that they do not admit that the deceased ‘■'attempted to erase, believed she had erased and did erase the first item in said” will, or that her act in connection “with the alleged erasure of said first item, operated as a cancellation and revocation of said first item, and of said” will, and that they require proof thereof by the petitioner, while the answer of Charles E. Rieman, trustee and committee, “neither admits nor denies” the alleged revocation of the will. A replication was filed by the petitioners, evidence was produced before the Orphans’ Court, and, by agreement of counsel, was subsequently written by the stenographer and filed in the case. On the 18th of July, 1911, the Orphans’ Court passed an order adjudging that the will had been can-celled and revoked by the deceased, and that probate of the same be refused, and, on the same day, passed a further order granting letters of administration on the estate of the deceased to Charles E. Rieman and Carlton Alexander Rieman.

It is from these orders that The Safe Deposit & Trust Company, trustee, has appealed. In order to arrive at the real intention of the deceased, and to determine the effect to be given to the alleged act of revocation, it will be necessary to keep in view the provisions of the will in question. After providing for the payment of her just debts and funeral expenses, it proceeds: “Item: I give and bequeath unto each of my children, that is to say: Mary Isabel Thom, Carlton Alexander Rie-man, Charles E. Rieman and Charlotte Rieman McIntosh, the sum of ten thousand dollars ($10,000).” “Item: I give and bequeath unto the Safe Deposit and Trust Company of Baltimore, in trust for the use of my son Peidc-e Lowe Rieman, the sum of ten thousand dollars ($10,000) to be held by the said trustee for and during the term of his natural life and subject to the same limitations ¹⁵⁸ hereinafter expressed' of that part of the rest and residue of my estate which I have given unto the said trustee for the use .and benefit of my said son, Perlee Lowe Rieman.” By the third item the deceased gives to Mary Ann Donovan, nurse of her deceased daughter, provided she was living at the death of the deceased, the sum of $250. By the fourth item she gives to, each of certain servants $100, and to certain other servants each the sum of $25, and by the fifth item she gives to her two daughters all her wearing apparel, jewelry, laces, toilet silver, contents of her wardrobe, writing desks and store rooms.

The sixth item is as follows: “Item: I give, devise and bequeath all of the rest and residue of my- estate hereinafter called my Trust estate’ unto the Safe Deposit and'. Trust Company of Baltimore, in special trust and confidence, with the powers and to and for the uses and purposes following, that is to say: With full power and authority to invest all moneys which it'may receive in permanent or transient investments, ground rents, annuities, stocks, bond's, mortgages or other good and safe income-producing securities, as may to it seem most advantageous to those interested in the rest and residue of my estate, and my said trustee is further authorized and empowered at all times during the continuance of said trust, for the purpose of re-investment to sell any of the securities or investments so made or to change any investments left by me or which may be procured by it and to re-invest the proceeds of any sale or sales upon the trusts herein declared, and in turn to sell or change any of the investments thus made by it, submitting, however, in the administration of this trust all of its acts so to be done with reference to the management of the trust estate to some Court of competent jurisdiction for its approval. And my trustee is further directed to pay unto each of my four children : Mary Isabel Thom, Carlton Alexander Rieman, Charles E. Rieman and Charlotte Rieman McIntosh, in quarterly installments, one-fifth (1/5) part of the net income of the rest and residue of my estate, such payments to be continued to be made to each of my said four children for and ¹⁵⁹ during tbe full end and term of his or her natural life, and to pay the other one-fifth (1/5) part of the net income of the said rest and residue of my estate to the committee or trustee of my son Porlee Lowe Rieman, for and during the term of his natural life. In the event of any one of my five children above named, departing this life, I direct my said trustee to divide my estate into five equal parts, having reference to quantity and values and to transfer, pay and deliver one of said five parts unto the child or children of such deceased child of mine, share and share alike per stirpes and not per capita.

In the event of any of my five children departing this life without issue living at the time of his or her death, then shall a portion of my trust estate so set apart for the use of the child so dying, be by my trustee divided equally among my children, the child or children of any deceased child of mine to take his, her or their parents’s share per stirpes and not per capita. The share of each of my children living at the time of this division, shall be held by my trustee for the use of my children respectively, for life, with the same limitations over, as is herein imposed upon the original shares of my children respectively.” Then follows a suggestion to the trustee in reference to the sale of certain unimproved real estate in Dayton, Ohio; and by the remaining and last item Garitón Alexander Rieman and Charles E. Rieman are appointed executors. The will is dated March 11th, 1907, and the evidence produced by the Safe Deposit and Trust Company, trustee, shows that it was duly executed by the deceased on that date, and that it remained in the possession of Mr. Willis until the 29th of June, 1909, when, at her request, he mailed it to her address in Baltimore County. It was found after her death in her desk, with some instructions to Mr. Willis, in an envelope which was sealed and addressed to him.

From an inspection of the original will, which was produced at the argument of the case in this Court, it appears that the names of the four children of the deceased in the first item ¹⁶⁰ have been rubbed and' t-hat some of the letters making np these names have been relined or retraced with a lead pencil. The words “each of my children” in the same item appear to.have been rubbed also, but no part of said item has the appearance of having been entirely rubbed out, erased or rendered illegible. It appears froan the evidence produced by the petitioners, appellees, that on the 20th of April, 1910, Mr. Willis called to see Mrs. Pieman at her home, in Baltimore City in regard to some changes she desired to make in her will, and that she then told him that she desired to divide the whole of her estate into five equal parts, that “she did not want any distinction among her children; wanted to have them all alike,” and that she wanted her two sons, Carlton A. and Charles E. Rieman, and her two daughters, to have their parts absolutely, but she wanted the share of her son who was non compos to be held in trust for him for life; that she did not want the shares of her sons, Carlton and Charles, and her two daughters held in trust, as is provided in the will in question, and gave as her reason for desiring to malee this change that at the death of Mrs. Thom and Mrs. McIntosh their children will come into possession of quite large estates under their grandfather's will, and that she wanted her daughters to have what she was going to leave them subject to their control absolutely. Mr. Willis says that Mrs. Rie-man called at his office on the 25th of April and on the 16th of June, 1910, when they talked over the proposed changes in her will, and that on the 28th- of June, 1910, she called again “and gave me instructions to prepare the will giving these four children I have named their shares absolutely and the other one-fifth to be in trust for the other son.

She said to me further: There are some specific legacies, money legacies, I want to give and I will write the names out for you and the amounts I want to give. I remember, in particular one was an indebtedness she wanted to release. All right I said; I was ready to prepare the will just as soon as I got the information with reference to the legacy. She died ¹⁶¹ before sbe sent me the memorandum, and in this envelope which was found after her death in my presence and which was handed to me by her son Charles and by me opened, was this memorandum, addressed to me. “MR.

Willis : My legatees are my cousin, Mrs. Nellie Lowe Johnston, Mrs. Gabriel Johnston, Washington, D. C., the sum of $2,000.00, and the debt of $8,000.00 be forgiven her if it is not paid at my death. To Lucilla Rieman, Mary Rieman, Clara Rieman, Mildred Rieman, all daughters of Henry Rieman, of Hawksworth, near Easton, Eastern Shore of Maryland, the sum of $250.00 apiece. To Miss Mary Hutchinson Warfield, 700 N. Howard street, Baltimore, the sum of $500.00. To Mrs. Mary Willoughby Osterhaus, wife of Capt.

Hugo Osterhaus, IT. S. N., the sum of $500. ÁNNIE L. RlEMAN.” Mr. Willis also states: “At the last interview, which was on the 28th of June, she told me, in commenting upon the change that she was going to make, giving the children I have named one-fifth absolutely, that she had rubbed out a provision in her will whereby she had given to each of the children I have named $5,000 absolutely, because, she said, that is no use now because if they are going to get one-fifth of the whole of the estate there is no use of giving them $10,000 absolutely. I told her that she ought not to rub anything out of the will because that was not a proper thing to do, to erase a will or to attempt to change it in that manner.” The Safe Deposit and Trust Company, trustee, objected to this evidence adduced by the petitioners, and filed a motion to strike it out, but the Court below overruled the motion. Under the provision of section 318 of Article 93 of the Code a will may be revoked “by some other will or codicil in writing, or other writing declaring the same, or by burning, ¹⁶² cancelling, tearing or obliterating tbe same, by tbe testator bimself or in bis presence, and by bis direction and consent and tbe right of a testator under tbis section of tbe Code to revoke a clause of bis will without destroying or invalidating tbe remaining clauses, provided be does not thereby enlarge tbe estate of any one who takes under tbe will, or change tbe character of tbe remaining provisions, was distinctly recognized in Eschbach v. Collins, 61 Md. 478 , and affirmed in the case of Home of the Aged v. Bantz, 107 Md. 543 .

In tbe latter case tbis Court, upon tbe authorities there cited, also adopts tbe rule that where a will was in tbe custody of tbe testator and upon bis death is found among bis private papers, cancelled or obliterated, it is presumed that it was so cancelled or obliterated by the testator and that be did it animo revocando, and quotes tbe statement in Redfield on Wills, 307, that, “Tbe rule of evidence in tbe ecclesiastical Courts in regard to presumptive revocations from tbe absence or mutilation of tbe will seems to be that jif tbe will is traced into tbe testator’s possession or custody and is there found mutilated in any of the ways pointed out in tbe statute for revocation or is not found at all it will be presumed that the testator destroyed or mutilated it animo revocandi; but if it was last in tbe custody of another it is incumbent upon tbe party asserting tbe revocation to show tbe will again in the