Tabler v. Tabler

Miller, J., delivered the opinion of the Court. This appeal is from an order of the Orphans’ Court refusing to grant a second set of issues involving the validity of a will, and it presents a singular and novel question. A paper-writing, purporting to he the last will of Michael Leather, was propounded for prohate. The name of the alleged testator was signed by Warner Welsh, the scrivener who prepared the instrument.

It is also duly attested by three witnesses, but as all the estate of the deceased consisted of personal property, this attestation was, as the law then stood, unnecessary. It contains five clauses. In each of the three first there is a legacy of $2000 to a named legatee. The fourth is the residuary clause disposing of all the rest and residue of his estate, and the fifth appoints Andrew J. Tabler his executor, and revokes all former wills.

A caveat was filed and, after the usual proceedings, five issues were sent to a Court of law for trial. Of these the first is, was this instrument sufficiently executed to pass personal property ? the second were its “ contents ” read to or by the alleged testator, or known by him “at or before the time of the alleged execution thereof?” the third, was it his last will and testament ? the fourth, was he “at the time of the alleged execution” thereof of •sound and disposing mind, capable of executing a valid deed or contract? and the fifth, was its execution procured by undue influence or fraud? At the trial the verdict was for the caveator on all the issues except the last. In other words the jury found, upon all the testimony before them, and under instructions as to the law (which the re ⁶⁰⁵ cord shows the Court gave) that this instrument was not sufficiently executed to pass personal property, that its contents were not read to or hy the deceased, or known hy him at or before the time of its alleged execution, that it was not his last will and testament, and that at the time of its alleged execution he did not have testamentary capacity.

No exceptions to the rulings of the Court appear to have been taken, nor was any appeal prosecuted; hut a motion for a new trial, upon the ground that the verdict was against the evidence and the instructions of the Court, was overruled, and the Court ordered the verdict to he certified to the Orphans’ Court. Before the Orphans’ Court had acted on this verdict, hy refusing probate of the instrument, one of the original cave'atees, (the party named as executor therein) filed a petition in that Court asking for five new issues substantially as follows: 1st. Was this paper-writing down to its fifth clause (which appoints the executor and revokes former wills) sufficiently executed to pass personal property ? 2nd. Were its contents down to said clause, read to or hy the deceased, or known hy him at the time of the writing thereof? 3rd.

Is it down to said clause the last will and testament of the deceased ? 4th. Was the deceased at the time of the writing of said paper down to its fifth clause, of sound and disposing mind, memory, and understanding, and capable of executing a valid deed or contract? 5th. Was he, at the time of the writing of said paper down to its said fifth clause “ prevented hy sudden and extreme illness from proceeding further with said paper-writing, said extreme illness thus incapacitating him, continuing to the time of his death ?” The grounds stated in the petition upon which these new issues are asked, are, that the first issues presented the instrument as an entirety, and required each fact tobe found or negatived as of the whole paper; that Welsh, the scrivener, in his testimony at the trial of the first ⁶⁰⁶ issues, testified that lie wrote or read over to the deceased •each and every clause in this instrument down to the fifth, and that this fifth clause was not read to him, nor was the same directed to be so written hy him, nor was it made known to him at or before the execution of the paper ; and that further evidence was also offered tending to show that the deceased was seized with extreme illness immediately before this fifth clause was written, and that at no time thereafter until his death, did he regain sufficient strength and capacity to enable him to finish his said will beyond that clause, and that he did not dictate the writing of that clause, hut the whole of it was copied hy "Welsh from Latrobe’s Justice without any suggestion from the •deceased. The petition then avers that this is a good will to pass personal property, even though this last clause was not read to, or made known to the deceased, if he was prevented by the act of God, or sudden illness from completing the instrument in the way he had designed.

To this petition the original caveator, together with other next of kin of the deceased, filed an answer in which they ■admit that Welsh testified as stated, and also that there was testimony of like effect, as to the time the incapacitating illness supervened, but they aver there was other testimony submitted to the jury tending to prove that the •deceased was taken ill the day before this paper was written, and that early in the morning of the day it was prepared, and from that time on, was incapable of making a valid deed or contract, and was in that condition of incapacity before Welsh was sent for, and before the alleged dictation commenced, and so continued until his death. The respondents then resist the granting of these new issues upon the ground that the same facts, in substance and in truth, were involved in the former issues and were conclusively adjudicated under those issues, and the interpretation placed upon them hy the Court in the instructions which it gave, and which appear in the record. ⁶⁰⁷ Upon this petition and answer the Orphans’ Court passed an order refusing to grant the new issues and dismissing the petition. From this order the petitioner has appealed. We do not know what the entire testimony before the jury on the trial of the first issues really was.

We can gather some of it from the averments of this petition and answer, and from the instructions granted can infer there was more. One of these instructions, granted at the request of the caveatees, is to the efifect that if the jury find, from all the evidence, that Welsh wrote the introductory clause of the alleged will and read it to the said Leather, and that he then dictated all the clauses disposing of his estate, including the residuary clause, and that Welsh wrote the same as so dictated, and that Leather was then asked who he wanted as executor, and replied “ Jack, Jack,- Jack,” and that this was the usual mode by which he designated Andrew J. Tabler, then the instrument was sufficiently made known to him to be a good will to pass personal property, and the verdict must be for the caveatees under the second and third issues, even though the jury should further find that that part of the fifth and last clause which revokes former wills, was not dictated by or read or made known to the said Leather,.prowled they shall further find that he was, at the time of said dictation, of sound "mind, memory, and understanding, and capable of making a valid deed or contract. Row, upon the presumption that the Court would not have granted this instruction unless there was evidence tending to support ■every hypothesis of fact it contained, the inference is a legitimate one that the deceased not only intended to appoint an executor, in order to complete his will, but named the party he wished to act in that capacity. From this meagre disclosure of the testimony it is impossible to say, with certainty, upon what ground the verdict was based.

It is highly probable the jury found ⁶⁰⁸ that incapacity existed before the preparation of the paper was begun, and we are strongly inclined to the opinion that, under the instructions given them, such must be the legal intendment of their verdict. It is possible, however they may have found that the deceased was incapable up to the time of the preparation of the last clause, hut became incapable before the executor was named, and may have thought that upon the issues before them, and the instructions of the Court, they were hound to find against the will unless they believed he was competent when the appointment of the executor was written, and it may he inferred from the rejected instructions that the Court was of that opinion. But assuming the jury did so find, their verdict must he conclusive, at least, that incapacity supervened before the executor was appointed, and, that being so, it is by no means certain that the disposing clauses, even if dictated and written while capacity lasted, could be admitted to probate, especially if there was any evidence that it was his purpose to appoint an executor. Such appointment, though not essential to its validity, is still an important part of a will, and few are made without it.

The compensation which our law allows an executor is liberal, and this, where the estate is large or considerable, (as was the case here) is us,ually taken into consideration by a testator and forms part of his testamentary scheme ; and from the granted instruction already referred to, we iiifer there was evidence offered by the appellant himself tending to show that the alleged testator in this case intended to appoint an executor in order to complete his will. No doubt-.the authorities have gone very far in admitting unfinished or incomplete papers as good wills of personal property ; hut here we have a case where a man in a dying condition undertakes to dictate his will to an amanuensis, and while this dictation is in progress his mind gives way before he has time to complete what he evidently deemed an important part of it. We have found no Maryland decision ⁶⁰⁹ •which has gone to the extent of holding that in such a state of case, the part of the instrument which he dictated while in possession of his mental faculties can be set up as his will. The case differs materially from those of Weems vs. Weems, et al., 19 Md., 334 , and Barnes vs. Crouch, reported in Dorsey’s Testamentary Law, 60.

In the former, the original record shows that the paper propounded for probate was a complete will disposing -of all the testator’s property, and appointing an executor. The Court found from the proof that the testator was capable of making a valid will during all the time he was giving the verbal instructions for the preparation of this paper, and only became incapable later in the day when it was presented to himfor formal execution; and they pronounced it a good will of personalty. In the other case, the terms iCmy executor hereinafter named,” appear in the formal commencement of the will, but it is manifest they were simply copied by the scrivener from the form he was using. There is no proof whatever from any of the witnesses that the testator gave any instructions as to the appointment of an executor, or ever expressed a wish to have one, and the paper contains no such appointnent.

Here also the proof was clear that the testatator was of sound mind during the time he gave the instructions, and that he gave all he intended to give; but some time afterwards, when the paper was brought to him to be signed, he was speechless and dying. The order of the