Wampler v. Wampler , 9 Md. 540 ( 1856 )

Tuck, J.,

delivered the opinion of this court.

We are of opinion that the evidence of William A. Wampler was properly received by the court below, and must be regarded by us in the decision of this appeal. Deakins vs. Hollis, 7 G. & J., 311.

The record presents the case of a blind man’s will, executed in due form of law, and attested by three subscribing witnesses. The will was not read to the testator by or in the presence of these witnesses; but, as proved by the above named witness, it had been dictated by the testator, prepared accordingly, and afterwards read to him, on the day of its execution, before the arrival of the attesting witnesses. The case thus stated relieves us from the necessity of pronouncing upon the validity of a will executed by a blind man, it not appearing that the will had ever been read to him.

Whatever the doctrine was, as laid down by the earlier writers, we take it to be well settled at this time, that a last will and testament, such as the one under consideration, is entitled to probate. And, indeed, we understood the counsel for the appellants as conceding that, on this point, the authorities are against him. The subject is so fully discussed in the cases cited on the part of the appellees, that we may content ourselves with referring to them, and especially to Longchamp vs. Fish, 5 Bos. & Pul. N. R., 415, which is much like the present. See Godolph. Pt. 1st, ch. 11. Richardson’s Law of Testaments & Wills, 45. Lovelass on Wills, 264. (25 Law Lib.)

It is contended, however, that the testimony of William A. Wampler shows that this will was prepared and executed under circumstances which, in connection with the sickness and infirmity of the testator, raise a proper ground for rejecting the instrument, as the act of a party performed while under the undue and improper influence of those around him at the time. Fraud is not charged in the argument, but, as was held in Davis vs. Calvert, 5 G. & J., 269, this is not necessary to avoid a will, if improper influence can be established. In the case referred to, we are told what kind and degree of influence is necessary. Now, testing the present will by that rule, we do not perceive that there is sufficient reason shown for rejecting it.

It is worthy of remark, that the witness is unimpeached and uncontradicted as to a single fact to which he speaks, and the provisions of the will are not such as to raise any doubt that all was done fairly and in accordance with the intention of the testator. He appears to have acted as a person of free will, in directing what he wished done. His reasons for excluding the appellants, and some others of his relatives, as given by himself at the time, are not unreasonable, and if the fact of their not having visited or cared for him, had been otherwise than as stated, we suppose some evidence on that point might have been adduced. The mode of estimating his property so as to determine the amount to be charged thereon, was suggested by him, and persisted in, although the persons present expressed a desire that he should make the valuation and name the amount himself. The executors were named by him, to the exclusion of his brother, who he was told might desire the office, because, as he said, it would not suit him. The facts concerning the surveyor’s instruments, show that his mind was in doubt as to which of two- nephews should have them; but, when a reason was suggested for bequeathing them as he did, he so directed. It is no uncommon circumstance for a person to hesitate how he will dispose of his property, or of certain portions of it, and to advise with others as to its value, with a view to making his will; and certainly there can be no objection to his gratifying what he may suppose to be the wishes and feelings of the objects of his bounty. He is represented to have been, before his sickness, a man of great force of mind and capacity for business, and to have been much employed in drawing deeds and wills for his neighbors. There was no evidence to show how far (if at all) his mind had been affected by disease; but, on the contrary, the subscribing witnesses stated that they had known him for many years, and that, at the factum of the will, he was as capable as they had ever known him to be.

The case does not show that the imputed influence and importunity, if any existed, was of a degree which the testator was too weak to resist, depriving him of his free agency, and rendering his will other than his free and unconstrained act. 5 G. & J., 302.

Order affirmed with costs.