Clagett v. Hawkins , 11 Md. 381 ( 1857 )

Le Grand, C. J.,

delivered the opinion of this court.

This is an appeal from an order of the orphans court for Montgomery county, revoking letters testamentary, which had been granted to appellant on the estate of James Hawkins Jr.? on the 22nd of January 1856. The order appealed from is dated the 12th of May 1857. The record shows that James Hawkins died, on or about the 1st of January 1856, possessed of large real and personal estate, leaving a widow, (the appellee,) and a daughter, Ara J. Hawkins, since intermarried with William S. Offut, and several grandchildren, (the issue of a son and daughter who died before he did,) all of which grandchildren are minors. In the fall of 1852, the deceased had draughts made of four papers; one purporting to be a will, including dispositions of real and personal estate, as therein mentioned, and three deeds in which he disposed of other portions of his real and personal estate, in trust for himself for life, with remainder to his daughter and grandchildren. These papers, he declared to the draughtsman, constituted a prospective settlement of his worldly affairs, and that it rvas made on consultation with his wife, who was satisfied with the arrangement; “that the reason he did not make his last will cover all the provisions of the deeds of trust, was, that his wife had consented to execute these deeds of trust in his lifetime, and thus his wish would be carried out without any interference from any source, and that when he delivered the said deeds of trust up, he would then execute the last paper, (the will,) and they would be satisfactory to himself.” On the 26th of October 1853, he and his wife united in the execution of two of the deeds. By the draught of his will he appointed the appellant and his wife his executor and executrix. This paper, unexecuted, together Avith the deeds, remained in his possession until his death, and they were all found wrapped up together in his secretary among his papers. On the 10th of January 1856, Ara J. Hawkins, filed her petition, accompanied by the draught of the will, asking that the appellant and appellee named as executors therein, should show cause why the same should not be admitted to probate. This was answered by appellant, detailing the conversation had by him with the deceased, and by the appellee, claiming that one paper of the series should not take effect, unless the whole stood as a full disposition, as well of the realty as the personalty. On the 22nd' of January 1856, without any order in writing, the paper marked A, including BCD, (the deeds,) by verbal authority were, it is contended, admitted to probate by the endorsement of the register of an envelope containing all four papers, as follows: — “Will of James Hawkins, Jr., filed lltli January, William Thompson of R., Register. Rec’d by order of court January 22nd 1856, William Thompson of R., Register. Recorded in Liber W. T. of R., No. 2, folio 251, William Thompson of R., Register.”

On the 29th of the same month, the appellee filed her renunciation of letters of administration, and on the same day, letters were granted to the appellant with copies of exhibit A, including B C D, and depositions annexed, as a copy of the will of the deceased. In March 1857, the appellee filed her petition, alleging, that the proceedings were still open and undecided, and that no decree or order had been passed, and praying the court to pass such an order or decree in the premises, as was required, and to revoke the letters granted to the appellant. After answer of appellant denying the right of the court to review their proceedings, the court passed the order declaring the papers filed, not to be the last will and testament of the deceased, and revoking the letters of the appellant. It is from this order this appeal is taken.

W ere this a case simply for the revocation of letters of administration, we could not hesitate to say, the application was too late. The case of Edwards Ad’mr of Norman Bruce, vs. Upton Bruce, 8 Md. Rep., 387, is conclusive on this point. The application is not, however, so restricted; its principal aim is to have declared, that certain papers, claimed to be so, are not the last will and testament of James Hawkins, Jr.

The proposition, that no lapse of time will exclude the inquiry, whether certain papers constitute the will of a party, is supported by almost any number of authorities,- that of Finucane vs. Gayfere, 1 Ecclesiastical Reports, 425, will suffice for this case.

But apart from this, it, is plain to us, that neither, nor all the papers filed in the office of the register of wills, when taken together, can be considered as the will of James Hawkins, Jr. The deeds were never, as he said, delivered, nor was the paper purporting to be the will ever executed, nor as he, La substance said, intended to be, until the delivery of the deeds by him. It had not the formalities required by the statute to pass realty, and was not accompanied by such circumstances as would make it a good" testamentary disposition of personalty. There was an absence of the animus testandi. If it had been his purpose to execute it as his will, the testimony shows he had ample opportunity to have done so. The circumstances of the case are not near as strong as were those in the case of Plater vs. Groome, 3 Md. Rep., 134, and yet this court there held, the paper claimed to be testamentary in its legal operation not so in fact. We refer to that case, and the principles there recognized, as decisive of this controversy.

In regard to the fact, that the appellant has partial^ administered the estate of Hawkins, and the other one, that the appellee is, and has been in the enjoyment of some of the property bequeathed to her, in the papers designated by letter A, cannot, in any manner, prejudice the interests of the appellant. In the future administration of the estate he will be allowed, by the orphans court, for all his acts honestly performed under its authority, and the appellee will be compelled to account for any property which she may have received. The revocation of the order, admitting to probate the papers AB CD, as the will of James Hawkins, Jr., necessarily revokes the letters granted to the appellant; and any evidences of indebtedness to the estate of Hawkins which he may have, pass to the person to whom letters may hereafter be granted.

Order affirmed, costs to be paid out of the estate „