Hale v. Monroe , 1868 Md. LEXIS 8 ( 1868 )

Stewart, J.,

delivered the opinion of this Court.

The record, in this case, shows that the appellee instituted an action of trespass queere clausum fregit, in the Circuit Court for Baltimore county, against the appellant, who pleaded “not guilty ” to the same. An agreement was made by the parties, that the appellant, under that plea, might make any defence which could have been specially pleaded; and the appellee, could offer in evidence, whatever might be introduced, upon any replication to such pica.

In the progress of the case, it was removed to Howard county, and at the trial, there- was testimony on both sides, and chiefly, as to the possession and occupancy of the loans in quo, by the respective parties. The evidence was conflicting, and might have proved a mixed possession, not exclusive on either side, according to whatever estimate the jury might have placed upon it. The action of the Court below which we are required to review, relates to the several propositions, embraced in the four exceptions, taken by the appellant; we will consider them in the order of their occurrence.

In the first exception, the appellee having proposed to introduce, as matter of evidence on his part, a paper writing purporting to be the last will and testament of James Greenfield, dated 1st of February, 1779, and certified to by the register, the 28th November, 1779, the appellant objected to its admissibility. The Court overruled the objection, and permitted the same, Avith the accompanying certificate of the register, to be given in evidence to the jury.

This document, not having the requisites prescribed by the Statute of Frauds, for the purpose of devising real estate, Avas not admissible for that purpose; nor can such a probate, made before the Register of Wills, give to it validity and effect, as the last will of James Greenfield, to transfer his real estate; nor can such a paper, nor such probate, from any lapse of time, be effectual to that extent.

The Act of 1715, ch. 39, Avhich confers poAver on the probate Judge “ to take probate or cause to be proved, any last will and testament, although the same coircerns title to land ” did not dispense A\Tith the requirements of the statute of 29th Charles II; but authorized him to proceed according to the laAArs of England, in force in the colonies. He Avas directed strictly to pursue the provisions of ktw, in taking probate of a AA'ill.

The paper writing, offered in this case, is not proved to have been attested by three witnesses, nor does the certificate of the register, or probate, show that the provisions of the Statute, were complied with, in this respect. No presumption from its ag’e, and the fact of its having been recorded, in the office of the Register of Wills, and the proof certified to in regard to it, can make it effectual as a last will and testament, by which to dispose of real estate.

To admit such an instrument with its, apparent imperfections, referred to, as a competent and operative last will to transfer real estate, required to be made and attested under the Statute, with very precise and formal solemnity, would be in palpable violation of the law, and utterly subversive of the safeguards which its express provisions, its genius and policy, emphatically prescribe. In the case of Rhodes, et al., vs. Vinson, et al., 9 Gill, 171, the Court say, “the policy of the law, has thrown around last wills, as many if not more shields to protect them from frauds, imposition and undue influence, than any inode of conveyance known to the law; ” “can there be a doubt, in cases like the present, where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy requires the contents of such paper to be established by the clearest, the most conclusive and satisfactory proof? ”

In the case of Hall vs. Gittings, 2 H. & J., 112, referred to by the counsel for the appellee, where the will of George Holland was in question, the facts were very different from those relating to the instrument now under consideration. That will, made in 1683, was proved by an exemplification taken from the records of the Prerogative Office. It professed to have been “signed, sealed and delivered in presence of” three witnesses. It was proved by one of the witnesses, that the testator signed, sealed and delivered the same as his act and deed. Another witness proved her mark as a witness, and that the other witness was dead. It was not the case of a lost will, or of a true or imperfect copy, that had been recorded. We think the Court went quite far enough in that case, and do not consider ourselves authorized to extend the indulgence, or allow the .doctrine of presumption to go beyond the verge of that case. Whilst we recognize its authority where there is a similar state of facts or proof, we cannot permit ourselves, by charitable construction to be given to ancient documents, to disregard the plain and imperative mandates of the law. We reverse the ruling of the Court, in permitting this paper writing to go to the jury as matter of evidence.

In our opinion the Court below erred in its ruling on the point involved in the appellant’s second exception, and the testimony, proposed by the appellant, ought to have been admitted.

The ajspellee having given in evidence the will of Keziah Dilworth, which was new matter on his part, the appellant was entitled to introduce testimony of declarations made by her, as to the extent of her claim, not for the purpose of proving title, but to rebut any influence the production of her will might have had upon the minds of the jury, by showing that she nevqr claimed any interest, in the locus in quo. Such evidence was strictly rebutting, and not obnoxious to fair objection, to meet the case presented on the other side.

It is unnecessary to say more as to the third exception, than to remark, that as this case will be remanded, the evidence proposed to be offered by the appellant, which was objected to as not being properly rebutting, at the time, he will have the opportunity to introduce as testimony in chief.

The ruling on the fourth exception, granting the appellee’s first prayer, must be reversed, because, we have decided, the probate of the alleged will of James Greenfield, was not admissible, and the jury could not, therefore, presume the existence of any will. The instruction was also erroneous, in confining the attention of the jury, to the question as to the possession of the appellee, without permitting them to consider the character of all the evidence on both sides, as to the possession which was involved in controversy, by reason of the evidence, tending to show a mixed possession, and that the possession of the appellee was not exclusive, which it was necessary should have been established by him, as this prayer relied solely upon his claim by possession at the time he alleges the invasion of it occurred. The exclusive character of the possession was a fact to be found by the jury. If they so believed, from all the evidence, such a possession would have been sufficient to authorize them to find for the appellee, in this action, if no valid title to the locus in quo had been proved on the other side.

(Decided 3d February, 1868.)

The second prayer would have been unobjectionable, but for the defects referred to in the first prayer, the facts in which are incorporated in it.

Judgment reversed and procedendo ordered.