Tinnan v. Fitzpatrick

Thomas, J., delivered the opinion of the Court. On the 24the day of May, 1912, the Orphans’ Court of Baltimore City, on the motion of Margaret E. Fitzpatrick, passed an order requiring the sheriff to summon Bernard F. Tinnan to appear and show cause why letters of administration on the estate of James Tinnan, deceased, should not be granted to her. In response to this citation Bernard F. Tinnan appeared and alleged that James Tinnan did not die intestate, but that he left a last will and testament in which he was appointed executor. On the same day he filed a petition in said Court alleging that the said James Tinnan, at the time of his death owned two pieces of “leasehold- property” in Baltimore City, and that he died in 1892 leaving a widow, Anna Tinnan, and the said Margaret E. Fitzpatrick and the petitioner, his children, as his only next of kin and heirs at law; that James Tinnan, in May, 1889, executed a will “in due form of law” and “duly attested by two subscribing witnesses,” which was prepared by and executed in the office of J ames H. Smith, an attorney at law of Baltimore City and his personal friend, and subscribed to by John A. Codori and B. Frank Knight, both of which subscribing witnesses are now dead,” that by said will the deceased left his ³⁴⁴ said daughter the sum of ten dollars, and devised and bequeathed all the rest and residue of his estate to the petitioner, with the request that he support the widow of the deceased during her natural life; that the deceased handed said will, on the day it was executed, to the petitioner who retained possession of it until the death of the deceased, and that after his death the petitioner’s mother, in order to avoid any unpleasantness in the family that might result from the fact that the deceased only gave his daughter ten dollars, requested him not to file the will during her life, but to leave it “for safe keeping” at the home of John A. C'odori, to whom the deceased owed a debt of $450.00, which was after-wards “paid off” by the petitioner; that in compliance with his mother’s request the petitioner gave the will to John A. Oodori who put it in his iron safe where it remained until 1902, after Codori’s death, when it was delivered to the petitioner by Catherine A. Codori, his widow, and was then placed by the petitioner in the safe of Mr. Robert A. Carr, whose office was in the Law Building, and that it remained in Mr. Carr’s safe until the fire of the Ith of February, 1904, when the Law Building and the safe were destroyed by fire; that his mother died on the 30th of September, 1903, and that he was so “distressed over” her death that he “did not promptly — go to Mr. Carr’s office and get the will for the purpose of having it probated,” but intended to do so within a reasonable time, and that the fire came before he had taken any steps to “probate the will;” that after the fire he did not know what his rights were, that he “was so completely upset that he did not ask the advice of counsel and did not know what ought to be done until recently,” and that he “did not do anything;” that about two years before the filing of said petition his sister “requested him to inform her about the property left by her father and he then told her there was a will and -told her all about it;” that he knew the contents of the will, both of the witnesses to the will and the signatures of said witnesses; that James H. Smith is likewise “Fully informed as to the contents of said will,” and that he, the ³⁴⁵ petitioner, filed with his petition “a paper being a substantial copy of said will, it being absolutely in conformity with the exact devises and bequests as contained in said original will.” The petitioner then prayed the Court to admit to probate, as the will of James Tinnan, said copy of his will, which is as follows: “Winn. “I, James Tinnan, of Baltimore City, in the State of Maryland, being of sound and disposing mind, memory and understanding, do make this my last Will and Testament in manner following, that is to say: After the payment of my just debts and funeral expenses, I give, devise and bequeath my estate as follows : Item 1.

I give and bequeath unto my daughter, Margaret E. Fitzpatrick, wife of Matthew J. Fitzpatrick, the sum of ten ($10.00) dollars. Item 2. I give, devise and bequeath unto my son, Bernard F. Tinnan, all the rest and residue of my estate of whatever kind and wheresoever situate, it being my desire that my said son shall provide a comfortable home for my wife, Anne Tinnan, during her natural life. I hereby constitute and appoint my said son, Bernard F. Tinnan, as the executor of this my last Will and Testament.

In witness whereof, I have hereunto subscribed my name and affixed my seal this-day of May, 1889. James Tinnan. (Seal). Signed, sealed, published and declared by the above named Testator as and for his last Will and Testament in the presence of us, who at his request, in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses.

John A. Codori. B. Frank Knight.” ³⁴⁶ In her answer to the petition, Margaret A. Fitzpatrick denied that James Tinnan executed a will, and charged that the petitioner had been guilty of gross laches and should not be allowed to set up the alleged will. Evidence was produced in the Orphans’ Court- to prove the alleged will, and that Court at the conclusion of the testimony, and after argument of counsel, decided that the will had not been established, and passed an order dismissing the petition. From that order this appeal was taken.

At the trial the appellant read the paper filed with his petition as a copy of the will, and for the purpose of establishing the execution and contents of the original will, produced James H. Smith, Esq., who, after stating that he had known James Tinnan for about thirty years before his death, that he prepared his will, that he had known him intimately for a number of years, and that he had frequently consulted with the witness about “certain things,” then testified as follows: “He came in a day or two before the will was prepared'and said that he wanted to make a will, and he spoke of the circumstances. He said his wife was getting old and he wanted her to be — . He asked me if I would prepare the will for him. I told him, yes, I would, and I asked him what property he had, and he outlined what disposition he wanted to make of it.

He spoke of his son, who was then keeping a small store in connection with the house where he lived. He said his daughter was married and well provided for, and he said, I will have to mention her name; and I said, if you want to. Then he told me he wanted to leave her ten dollars and that the balance of the property he wanted to leave with his son and he wanted him to take care of his mother and provide a home for her. He said she must have a home, and he wanted a home for her, and he said he was coming the next day; and I said, well, you will have to have witnesses.

He said, yes; he would have the two witnesses there; and he came in but the two witnesses came- before he did, they had been notified, and I read the will over to him ³⁴⁷ and he said that was just what he wanted, the balance of the property was to be left to his son and that they were keeping a store and if anything should happen to him, they would be provided for; and he talked to me intimately about the matter because I had known him so well and had talked with him about other matters; and I drew the will and I never heard of it after that until this suit was instituted. Q. Mr. Smith, who were the witnesses to the will? A. The witnesses were Mr. John A. Codori and the other was Benjamin Franklin Knight. Mr. Codori I haven’t much acquaintance with, I knew him by sight, but Knight I knew well, we were school-boys together; and he named the witnesses himself.

Q. Was the will executed in your presence, sir? A. Yes. Q. Where was the will signed by the witnesses? A. Signed in my office at 11 E. Lexington street.

Q. Signed by both witnesses?1 A. By both witnesses? Q. The petition filed in this case places the execution of the will May, 1889. What is your recollection of that? A. What is that?

Q. Do you recall what year it was? A. I do not. I was trying to fix it after the case came up; it was about twenty years ago. It is not necessary to refer to the testimony of Mr. Smith on cross-examination from which it appears that his recollection of other matters of business that occurred about the same time the alleged will was executed is very indistinct, or to the testimony of Mr. Judge that when he asked Mr. Smith if he had any independent knowledge of the contents of the will, “He said, Oh, no; Mr. Judge, I have forgotten all about business transactions that far back, but when Mr. Carr and Mr. Tinnan came to my office and told or read to me the contents of this paper, it refreshed my mind, and I remembered that was about what was in the will.” The testimony we have set out above, and the testimony of Bernard F. Tinnan, to the effect that he had seen the will, knew the signatures of his father and of John A. Codori and B. Frank Knight, that their signatures were “on the will,” and that Codori and ³⁴⁸ Knight are now dead, is all the evidence produced to prove the execution of said will.

Section 310 of Article 93 of the Code of 1888, which is the same as section 323 of the Code of 1912, provided that, “All devises and bequests of any goods, chattels or personal property of any kind, as described in section 307, shall be iu writing and signed by the party so devising or bequeathing the same, or by some other person for him, in his presence and by his express direction, and shall be attested and subscribed in the presence of said deviser by two or more creditable witnesses, or else they shall be utterly void and of no effect.” This section expressly provides that the will shall be attested and subscribed by two witnesses in the presence of. the testator, and there is not a word in the testimony to which we have referred to show that the witnesses signed their names as witnesses in the presence of James Tinnan. Mr. Smith states that the will was executed in his presence, and that it was signed by both witnesses in his office, but be does not state that the witnesses signed the will in the presence of the testator, and his testimony, therefore, fails to establish the attestation of the will in accordance with the requirements of the statute. Stirling v. Stirling, 64 Md. 138 . It remains to be determined what effect and weight should be given to the testimony of Bernard F. Tinnan that he knew the signatures of the deceased and Oodori and Knight and that their signatures were “on the will,” for unless this evidence is sufficient