Tall v. Budnitz

Parke, J., delivered the opinion of the Court. The appeal in this cause is from the unanimous judgment of the Orphans’ Court of Baltimore City, which, after a trial of the issues submitting the questions in controversy, determined that Webster I. Bians had died in Baltimore City on June 10th, 1931, leaving a last will and testament which he had duly executed in January, 1910, with full knowledge and comprehension of its contents, without undue influence, and when he had the requisite testamentary capacity, and that this unrevoked will was, without the authorization or intention of the testator, inadvertently destroyed by the draftsman while the will was in his custody, but that this destruction was not known or discovered until after the testator’s death, and, finally, that the form and contents of the will and the subscription of the testator and the attesting ²¹⁰ witnesses had been ascertained by parol testimony, and, as so established and found, it should be, and was, admitted to probate. At the time of his death, the estate of the decedent consisted of the house at 421 South Hanover Street, in Baltimore, in which he and his wife had lived, and personalty to the value of about $1,800. He was survived by his widow, and had no descendants.

His sole heirs at law and next of kin were Webster O. Tall and Charles Grant Tall, his two> nephews. In the event of an intestacy, the widow would have taken one moiety of his real and personal estate, and his two nephews the other moiety. On July 27th, 1931, the widow was granted letters of administration on her husband’s estate; and, on September 23rd, 1931, she died suddenly without completing her administration. Letters of administration on the estate of the widow, Virginia (Jennie) J. Bians, were granted to Emil J. Budnitz, who-, as such administrator, filed on September 29th, 1931, in the Orphans’ Court of Baltimore City, a petition averring that Webster I. Bians had, in fact, died testate, but that the will had unintentionally been destroyed by the custodian of the instrument; that its form and contents were of a given tenor which made the wife of the testator his sole legatee and devisee, and his executor without bond, except as made indispensable by law; and that, although the widow had taken out letters of administration upon her husband’s estate shortly after his death, she, before her death, had, upon being advised that she was entitled to1 have the destroyed will of her husband established and admitted to probate, employed counsel and had him prepare a petition for that purpose, but that her sudden death had prevented an institution by her of the proceedings.

The nephews of the alleged testator were cited to show cause why the purporting will should not be admitted to probate. The answer of the nephews denied the unde had died testate, and requested the cause be heard on issues which would present the facts in controversy. Letters of administration do bonis 1ion have been granted ²¹¹ on the estate of Webster I. Bians to the nephew Webster O. Tall, and the next of kin and only heir at law of Virginia J. Bians is her father. The Proceedings ultimately united the administrator and the father of Virginia J. Bians as the proponents of the alleged destroyed testamentary paper, and the two nephews of Webster I. Bians and his administrator deI bonis non as its opponents, with the questions of fact for determination by the Orphans’ Court of Baltimore City presented in the six issues proposed in the answer of the nephews.

It is not contended on brief, and there is no testimony on the record, that the decedent did not possess the requisite testamentary capacity; or that the contents of the document in question were not known and understood by him at the time of its subscription; or that its execution was procured by fraud, undue influence, or was later revoked. These issues therefore require no further consideration. The remaining questions must be determined by principles which have been clarified and declared in an exhaustive opinion by Judge Offutt in the comparatively recent case of Preston v. Preston, 149 Md. 498 , 132 A. 55 . It is settled law that the execution and contents of an unrevoked will, which has been lost or destroyed after the testator’s death but before probate, may be proved by parol evidence, if clear and convincing.

Ibid. pp. 508-518. In Bonis Barber, 1 P. & D. 267; Burls v. Burls, 1 P. & D. 472; In Bonis Leigh (1892) Prob. 82; Haines v. Haines, 2 Vern. 441; 1 Williams on Executors, 319, 320. The evidence may now be examined and considered to determine if the parol testimony possesses the requisite clarity and cogency. The present record carries no selfish nor sinister implications.

The testator and his wife were a childless couple and members of the Christ Lutheran Church, whose congregation had been organized by the Reverend Leander Zimmerman, a Lutheran clergyman, who remained its pastor for thirty-five years, when, on account of illness, he was obliged to resign his charg;e in April, 1925. Bor more than seventeen years before his resignation, Doctor Zimmerman had an apartment in the Bians home and lived there on terms ²¹² of intimate friendship'. While this relation continued the husband requested his pastor to' write his will. This was done, but the will was accidentally destroyed, and the testator and his wife are dead, and only the clergyman, who wrote the will and witnessed its execution, and a second subscribing witness, are alive to testify to what occurred.

These witnesses were called, and they are not only credible but wholly disinterested, and there is nothing in their testimony or the circumstances to impeach their evidence. There are, of course, minor discrepancies in recollection of details, as is natural