Shane v. Wooley

Briscoe, J., delivered the opinion of the court. This is an appeal from an order of the Orphans’ Court of Caroline County, dated the 9th day of March, 1920, revolting an order which had been previously passed by that court on the. 17th day of February, 1920, admitting to probate a paper writing purporting to be the last will and testament of Mrs. Catherine Shane, and also rescinding the letters of administration c. f. a. granted unto George A. Shane. ⁷⁶ The alleged will of Mrs. Shane, late of Caroline County, deceased, it appears from the record, was brought in the Orphans’ Court of Caroline County, by George A. Shane, its custodian, and who made oath on the 12th day of February, 1920, that the will was delivered to him by George A. Shane, Jr., his son, who found the paper writing among the papers of Catherine Shane, and remained in his keeping until deiposited by him with the Register of Wills for Caroline County for probate. The alleged will, it appears, was contained and written on one sheet of paper signed by Mrs. Shane, and enclosed in an envelope, which had been sealed, and upon which the following endorsement and signatures appeared across the sealed portion of the envelope: “We have seen the said Mrs. Catherine Shane sign and seal this paper in our presence and at her request we hereby sign our names as witnesses. “Hattie A. Dehner. “John Dehner. “Lucy A. Prettyman.” Mo objections were made to the probate of tbe will, although notice appears to have been given to the proper parties in interest, and the Orphans’ Court, on the 17th day of February, 1920, after hearing evidence as to the validity of the will, ordered and decreed that it he admitted to probate as the true and genuine last will and testament of Catherine Shane, deceased. The paper writing was not dated nor witnessed on the paper itself hut, as stated in the record, “the aforegoing paper-writing was brought into this Court, in an envelope which had been opened and on which was written” the attestation clause, set out herein, .and signed by the three named witnesses.

The petition to revoke and vacate the probate of the will was filed on behalf of tbe daughter-, Frances L. Wooley, and a son, William A. Shane, of the testatrix, and alleges that the- ⁷⁷ probate of the will, and tbe letters of administration with tbe will annexed, granted thereon, were improperly issued: first, that the paper writing was not valid, as a will, because it was not executed in accordance with the law of the State of Maryland, providing for the execution of wills; second, that the paper writing was null and void on its face as a will, because it had not been subscribed by two or more witnesses, as required by law. The defendants, George A. Shane; Sr., tbe husband, and a son, George A. Shane, Jr., answered the petition, denying the allegations set forth therein, and asked that the petition he dismissed upon the ground that the will was valid, and executed as required by the laws of the State. The case was heard upon petition, answer and testimony taken in open court, and the Orphans’ Court of Caroline County held that the petitioners were entitled to a decree revoking the order admitting the will to probate, and also the letters of administration c. t. a. which had been granted to George A. Shane. And from an order, passed on the 9th day of March, 1920, so declaring, the present appeal has been taken.

Tbe controlling facts, upon which the decision of the case must turn, are undisputed, and the record presents for consideration the single question whether the proof as to the execution and attestation of the will in this case is sufficient,' under the statute, to justify its admission to probate. By Section 323 of Article 93 of the Code (Bagby’s), it is provided that all devises and bequests of any lands, or tenements, or interest therein, and all bequests of any goods, chattels or personal property of any kind, as described in Section' 319, shall be in writing and signed by the party so devising or bequeathing the same, or by some other person for him, in bis presence and by his express direction, and shall be attested and subscribed in the presence of the said devisor by two or more credible witnesses, or else they shall be utterly void and of none effect. ⁷⁸ In Appeal of Beaver’s Executor's, 96 Md. 736 , it is said: “The provision of the statute of this State that a will must be attested and subscribed by the witnesses * * * had its origin in the Statute of Erauds and is substantially the same as that in force in most of the other States and in England.” Higgins v. Carlton, 28 Md. 141 ; Gross v. Burneston, 91 Md. 383 . "While there is no provision of the statute of this State which requires in terms that the attestation clause and the