Lindsay v. Wilson , 103 Md. 252 ( 1906 )

The bill was filed in this case by the appellee to require the appellant to specifically perform a contract to purchase certain real estate in the city of Baltimore. The appellee is the widow of Marshall Gulian Wilson and she claims title to the property through the will of her husband, which was executed in France, where Mr. Wilson was domiciled at the time the will was executed, although he was a native of Maryland and was still a citizen of this country. The will was written in the French language and was entirely in the handwriting of the testator, but was not witnessed. The heirs at law of Mr. Wilson intervened in this Court, by its permission, and counsel for them were permitted to argue the case. It is not denied that the will was executed according to the forms required by the laws of France, and the personal property left by the testator has been distributed to the appellee by the administrator cum testamentoannexo of the estate. It is contended, however, that the will is not sufficient to pass the real estate of the deceased, which he acquired after the will was executed. The principal questions presented for our consideration are:

1st. Is a holographic will, not witnessed but executed in accordance with the laws of the country in which it was made, by a citizen of this State domiciled in that country, valid to pass real estate in this State? and

2nd. If that be admitted, did this will pass the real estate in question?

1. It must be conceded that at common law, and as a general principle of international comity, the lex loci rei sitae governs the formal execution, validity, etc., of wills of real estate, but it cannot be denied that a State can alter the general rule and provide by statute that such a will may be valid to pass real estate, if executed according to the laws of the place of its execution. Our first inquiry, therefore, will be directed to ascertaining how far the general rule has been changed in this State. The Act of 1798, ch. 101, required "All devises and bequests of any lands or tenements, devisable by law" to be in writing, signed by the party (or some one in his presence and by his express direction), and to be attested and subscribed in the presence of the devisor by three or four credible witnesses. That language was continued in the Code of 1860 (sec. 301 of Art. 93) and was the law of this State until 1884, when, by ch. 293 of the Acts of Assembly of that year, material changes were made by the Legislature. Prior to that time wills of personal property were not required to be witnessed, but by the Act of 1884, sec. 301, was amended so as to read "All devises and bequests of any lands or tenements, or interest therein, and all bequests of any goods, chattels or personal property of any kind as described heretofore, shall be in 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 the said devisor by two or more credible witnesses, or else they shall be utterly void and of none effect." That is now sec. 317 of Art. 93 of the Code of 1904. Section 306 as amended by the Act of 1884 provided that "no nuncupative will shall hereafter be valid in this State," but authorized soldiers in actual military service, and mariners at sea to dispose of movables, wages and personal estate. Section 307, as passed by the same Act (1884), provided that "Every will and other testamentary instrument made out of this State by a citizenthereof shall be held to be valid, if the same be made according to the forms required by the law of the place where the same was made, or by the law of the place where such person was residing when the same was made, and the said will, when so executed, shall be admitted to probate in any Orphans' Court of this State." By ch. 544 of the Acts of 1888, that section was amended by striking out the words "by a citizen thereof," and in other respects remained as enacted by the Act of 1884. The Act of 1894, ch. 151, amended that section and is the present law of the State on the subject, being sec. 327 of Art. 93 of the Code of 1904; and will be referred to more particularly later on.

In Olivet v. Whitworth, 82 Md. 258, we had occasion to consider this statute, as enacted by the Act of 1888, and we held that a holographic will, executed by Mrs. Olivet at Geneva in January, 1893, together with a holographic codicil executed at Nice in February, 1893 (neither of them having been witnessed), was a valid execution of a power reserved in a deed of trust, to nominate by her last will and testament the person or persons to whom certain money held in trust should go after her death — thereby settling the question in this State in so far as personalty is concerned, but no real property was involved. We cannot understand, however, how any distinction can be made under this statute between real and personal property; since the Act of 1884. The same formalities were required by that Act in the execution of wills of personal property as in those of real estate, and by sec. 301 it was declared that unless executed as therein required, "they shall be utterly void and of none effect." Manifestly then a bequest of personal property, or a devise of real estate, not attested by two or more credible witnesses, was under that section utterly void, and the only provision that saved the will under consideration in Olivet v.Whitworth, from being so declared was sec. 307, as enacted by the Act of 1884 and amended by the Act of 1888. Inasmuch as the Legislature provided in sec. 307, that "Every will, and other testamentary instrument, made out of the Stateshall be held to be valid," if executed as therein stated, it cannot be said that some wills so made shall be valid, and others so made shall be invalid, without ignoring the express language of the statute. Section 307 was unquestionably intended to exempt a will made out of the State (if made according to the forms required by the law of the place where it was executed, or where the testator was residing) from the requirements of sec. 301, and as the Legislature saw fit to require the same formalities in the execution of wills of personal property as in those of real property, the Court would not be justified in holding that sec. 307 was applicable to wills of personalty alone when the manifest intention of the Legislature was to apply it to both classes.

It was suggested at the argument that other sections of Art. 93 tended to sustain the position of the heirs at law, and sections 344 and 347 of that Article (Code of 1904) were mentioned. But we do not think they reflect upon the question before us. Section 344 simply makes provision for obtaining evidence of certain classes of wills out of this State. Section 347 authorizes any person interested in a devise or bequest of any property within this State, contained in a will admitted to probate and recorded in some other State or country, to procure a copy of the will with certificate of probate (properly authenticated), and file it in the office of the Register of Wills of any county or the city of Baltimore. The register is required to record it and a copy of that record is made evidence. But we do not understand that either of those sections could be held to make any distinction between wills of real property and those of personalty since the Act of 1884 was passed, requiring them to be executed in the same way. Prior to the passage of the present law, validating wills made out of the State in accordance with the laws of the place where they are executed, of course wills of real property, in order to pass title to land in this State, were required to be executed according to section 301 (now 317) of Art. 93, but that does not throw any light on the question before us, as we must determine it according to existing laws.

Nor can we see how section 329 of Art. 93, or section 79 of Art. 21, can aid us in reaching a proper conclusion. The former provides that every will "executed in due form of law" shall pass all the real estate which the testator had at the time of his death. A will executed according to section 327 is as much "in due form of law" as one executed as provided in section 317. The other statute referred to (sec. 79 of Art. 21) merely provides for deeds of conveyance of lands in this State by executors of wills of non-residents, "executed with the formalities required for the passing of real estate by the laws of this State." If it be conceded that that only referred to wills executed according to section 317 it would not reflect upon this case. That statute was originally passed in 1872, when no such statute as that now being considered was in force, and it presents a wholly different question. When our legislators authorized foreign executors to thus sell real estate it was going quite far, but, as it was dealing with sales by them of real estate in Maryland, it was perfectly proper that the wills should be "executed with the formalities required for the passing of real estate by the laws of this State." Whether or not that is broad enough to now include wills executed according to the laws of some other State is perhaps immaterial for the purposes of this case, but we do not want to be understood as intimating that it is not.

The Act of 1894, chap. 151 (now section 327 of the Code of 1904), makes the position of the appellee even stronger than it would have been under the Act of 1888. That provides that "everywill" made out of the State shall be held to be valid in Maryland (1) if "made according to the forms required by the law of the place where the same was made," or (2) "by the law of the place where the testator was domiciled when the same was made," or (3) "according to the forms required by the law of this State." It will be observed that that Act gives the same effect to a will made out of the State according to the forms required by the law of the place where it is made, or by the law of the testator's domicile, as to a will executed according to the forms required by the law of this State. In either case the statute declares the will "shall be held to be valid in Maryland —``valid' for what? Unquestionably for all purposes of a will — to pass real estate, as well as personalty. No one can doubt that it would be thus valid if executed according to the forms required by our law, and no rule of construction that we are aware of would justify the Court in holding that it would in such case be valid, but would be invalid if one of the other alternative methods authorized by the statute be followed.

That Act then provides that if the testator was originally domiciled in Maryland, although at the time of making the will, or at the time of his death, he may be domiciled elsewhere, the will "then so executed shall be admitted to probate in any Orphans' Court of this State." If the testator was not originally domiciled in Maryland, there is no provision in this statute for probate in this State, but then those interested in property (real or personal, as shown by the language of the statute) can procure a copy and have it recorded here under section 347 above referred to. The concluding part of this section will be considered under the second branch of this opinion.

It seems clear to us, therefore, that the statute now embodied in section 327 of Art. 93 is as applicable to wills of real estate as to those of personalty alone. We do not fear such results from that construction as was suggested at the argument. Indeed there was perhaps more danger from wills made out of, or in this State, prior to 1884, than can possibly be feared now. As is well known, much of the most valuable property in the city of Baltimore, and some other parts of the State, is leasehold and as that is personal property under our decisions it passed by a will, or testamentary paper, sufficient to dispose of personal property. Devecmon v. Devecmon, 43 Md. 335. As prior to 1884 it was not necessary to have witnesses to a will of that character, there was certainly as much, if not more, danger to be feared from such wills than from those executed under the provisions of the statute now embodied in section 327. As we have seen, the Act of 1884 making these radical changes in our laws applicable to wills expressly prohibited nuncupative wills, only making provision for soldiers in service and mariners at sea, and we need not disturb ourselves about the suggested dangers of wills made in countries governed by uncivilized people, according to their forms. Our statute provides for wills made according tolaw, and it will be time enough to determine whether one made according to the customs of barbarians or savages is embraced in that term, when some person having property in Maryland attempts to follow such custom. But whatever the dangers may be, we must accept the law as it is, and follow what seems to us to be the clear intention of our law-makers.

Counsel for the heirs at law have referred to statutes in a number of States and in England to show that they provide that wills disposing of personal property, if made according to the forms of the domicile, are valid, while those devising real estate are still governed by the law of the situs, but that is a question for the respective Legislatures. In Massachusetts, Connecticut and Wisconsin statutes very similar to ours have been passed. See Bailey v. Bailey, 5 Cush. 245; Slocum v.Slocum, 13 Allan, 38; Irwin's Appeal, 33 Conn. 140; General Statutes of Conn., chap. 24, sec. 293; Wisconsiu Statutes, vol. 1, page 1648.

The intentions of testators have frequently failed because they executed their wills according to the forms prescribed by the laws of their respective domiciles, which were not in accordance with the laws of the States where some of their lands were situated, and in this country where we have so many States, each one of which can determine such question for itself, it cannot be doubted that such a statute as ours is more likely to accomplish the great object of the law applicable to wills — to carry out the intention of the testator — than the common law rule. Perhaps nothing has shaken the respect of even intelligent laymen for the wisdom of the law more than the fact that a will will pass real estate in one State and be utterly null and void as to that in an adjoining State. Most attorneys in active practice have doubtless realized the difficulties arising from so many statutes on the subject in force in this country, when called upon to hastily draw a will for a person who owned real estate in different States, and although the wisdom of such a statute as ours is a question for the Legislature rather than the Courts, it is, to say the least, not so unreasonable as to cause us to record any objection to it.

2. After providing for the probate of the will of a testator originally domiciled in Maryland, section 327 concludes thus: "and when so admitted shall be governed by and construed and interpreted according to the law of Maryland, without regard to the lex domicilii unless the testator shall expressly declare a contrary intention in said will or testamentary instrument." We must, therefore, construe this will with that provision in mind. It was written, as we have said, in the French language. There are two translations in the record — one made by Walter V.P. Berry, an attorney at law residing at Washington, D.C., who has made a speciality of international law and is counsel for a number of embassies and legations, including the French Embassy, and another made by William H. Perkins, an attorney of Baltimore City, whose mother and her parents were French. He testified that he spoke French before he spoke English and has always kept up his knowledge of the language, has spent a great deal of time in France and has read and studied the French law. A. Marshall Elliott, who is professor of romance language at the Johns Hopkins University, testified that he considered that the translation made by Mr. Perkins the better of the two, but there is no very material difference between them. Mr. Berry translated the beginning "I, * * * declare and intend to dispose in the following manner of allthe property of which I could dispose at my death," while the other translation reads "which I shall dispose of at my death." The original in the will translated "of all the property" is "de tous les biens." Doctor Elliott testified that the expression "tous les biens" included both real and personal property, and that the words "les biens" when used with "tous" were never applied to personal property alone. Mr. Perkins said "de tous les biens" was the equivalent of "all my property, real, personal or mixed." He also said that section 516 of the French Code showed that the word "biens" as there used included real and personal property. That Code says "tous les biens sont meubles ou immeubles" — the words "meubles ou immeubles" meaning movable and immovable property, which is the equivalent to our real and personal property. In Bouvier's Law Dictionary the word "Biens" is defined "property of every description, except estates of freehold and inheritance" but it goes on to say: "In the French law this term includes all kinds of property, real and personal. Biens are divided into biens meubles, movable property, andbiens immeubles, immovable property." In 5 Cyc., 686, note 71, it is said of it "Real estate is included in the term as employed by the civilian and continental jurists." JUDGE STORY, in his work on Conflict of Laws, says "Foreign jurists commonly in the term ``biens' include all sorts of property, movable and immovable." We thus see from the evidence in the record and from law books what the term means in France, where this will was drawn.

Then the translation of Mr. Berry proceeds "I appoint for mysole legatee Marie Eugenie Tanguy, my wife, intending that she enjoy and dispose as absolute property of all that Imay possess at the time of my death," while the other is "I constitute my wife, Marie Eugenie Tanguy, my universal legatee desiring and intending that she shall have an absolute estate with full power to enjoy and dispose of all that I possess atthe moment of my death." The expression used in the original is "J'institute pour ma legataire universelle." Dr. Elliott translates "ma legataire universelle" to mean "my universal legatee," covering the whole property, real and personal. Mr. Perkins said he preferred "universal legatee" and that the expression used indicated that the testator intended to leave every species of property he had and, with our limited knowledge of French, that seems to us to be the more correct translation. The testator then provided that in case there were any children by their marriage the "legacy" to his wife should be reduced by one-fourth absolutely and one-fourth for her temporary use, and in the original added "avec dispense de faire emploi des valeurs mobilieres et de donner caution." In one translation in the record that is translated "with power to make use of thepersonal property and to give security (for its use)," and in the other "without being required to convert the personalproperty or to give bond." Whichever may be the better translation, both refer to "the personal property" — "des valeurs mobilieres" being so translated — thus indicating that the testator had in mind both real and personal property as it was unnecessary to use the word "personal" — "mobilieres" — if he was intending to dispose of no other kind of property. The testator, it is true, used the terms which have been translated "legatee" and "legacy" in his will, but those expressions have different meanings in the French Code and civil law from what they usually have under our system, but even in this country they may be used in reference to real property. In 18 Am. Eng.Ency. of Law, 710, it is said: "The word ``legacy' is identical in meaning with ``bequest' and primarily is applicable only to personalty; but it may refer to real estate, if the testator so intended." Indeed 317 of Art. 93 of our Code which we cited above, speaks of "All devises and bequests of any lands or tenements, or interest therein," and the word "bequests" has been used in that connection since 1798 in this State. That the word "legatee" may include "devises" see note in 18 Am. Eng. Ency. of Law, 821, where many cases are cited.

There would seem to be no doubt that the terms used in this will would in France include both real and personal property. It only remains to determine whether the concluding part of sec. 327 of Art. 93, quoted above, requires us to place any other interpretation upon those terms. The provision — "shall be governed by and construed and interpreted according to the law of Maryland without regard to the lex domicilii" certainly cannot mean that we must give a foreign word or expression a different meaning from that given it in the country where the will was written. According to the law of Maryland the great object to be attained in construing a will is to ascertain the intention of the testator. Would it not therefore be remarkable if when called upon to construe a will written in a foreign language a Maryland Court must refuse to accept the meaning of a word, or expression used in a will that is its accepted meaning in the country where that language is used, and where the will is written? The first thing necessary is to obtain, as far as possible, a correct translation of the will, when written in another language, and after that is done then determine the effect of the language under our law. If "tous les biens" means "all the property" when used in France, why should we give it any other meaning when we find it in a will made in that country? If we say it only menns personal property we give to it a meaning that the language used does not justify, if the translations before us are correct. So with the expression "legataire universelle." If that expression means in France a person to whom "every species of property that he (the testator) had" is given, or "legatee covering his whole property," as the testimony shows, why should we say that because the English word "legatee" generally applies only to personal property we will so interpret that expression in this will? To do so would be to reject one of the established rules in ascertaining the meaning of wills — that the Court should as far as possible place itself in the position of a testator. If a person goes to a lawyer or notary in France to have a will drawn and tells him he desires to leave all his property to his wife, and the lawyer or notary uses terms that in the French language mean precisely what the testator intends, although perhaps in this country they would or might have a more limited meaning, is it to be said that we must adopt the latter, although the evidence in the case shows what it does mean in France? If a testator in another State left all of his personal property to his wife and the rest of his property to his child, and he had a leasehold estate in this State, under this statute we might be required to hold that the bequests to his wife included the leasehold, although that was not regarded as personal property in the State where the will was drawn, because that would simply require a legal construction of a will using a well known term. But the question before us is; "what did the testator mean by such expressions as "tous les biens," "legataire universelle," etc.? and the only possible way to determine it is to have competent persons familiar with the French language translate them, unless the Court is sufficiently versed in French to understand their meaning in the connection in which they are used. When that is done, the will must then be "governed by and construed and interpreted according to the law of Maryland" — in a word, after the will, if written in a foreign language, is properly translated and the meaning of words and terms therein used ascertained, the law of this State, and not that of the testator's domicile, is under this statute to control the Court in construing and interpreting it.

It is also contended that the will which is dated April 30th, 1901, does not apply to this real estate for another reason. The mother of Marshall G. Wilson died March the 12th, 1905, and by her last will and testament left this property to her husband, James G. Wilson, who predeceased his wife. That devise did not lapse by reason of sec. 320 of Art. 93, and Marshall G. Wilson being the sole heir at law of his father the property passed to him. Sec. 329 of Art. 93 provides that "Every last will and testament executed in due form of law after the first day of June, 1850, shall pass all the real estate which the testator had at the time of his death." We have already indicated that a will executed as this, is "in due form oflaw," and we will not further discuss that. But it is said, and correctly so, that this provision will not pass the real estate of a testator, regardless of his intention. That has been so decided in Rea v. Twilley, 35 Md. 409; Rizer v. Berry,58 Md. 112, and Bourke v. Boone, 94 Md. 472. But we do not find anything in this will to indicate that the testator did not intend to leave to his wife all his property, whatever it might be and whether real or personal. The will expressly says as shown by one translation, "intending that she enjoy and dispose as absolute property of all that I may possess at the time of mydeath," and according to the other translation "desiring and intending that she shall have an absolute estate with full power to enjoy and dispose of all that I possess at the moment of mydeath" — which are in substance the same thing. That expression, taken in connection with others we have referred to, shows that his intention was to give her all the property he had at thetime of his death, and the fact that he did not know when he made his will that he would acquire this and other property cannot deprive his wife of them. The statute (sec. 329) would be of little use if such a fact could deprive a devisee of after-acquired property. The cases of Stannard v. Barnum,51 Md. 451, and Dalrymple v. Gamble, 68 Md. 528, are sufficiently conclusive of this point to relieve us of further discussion of it. We are of the opinion that what we referred to above as the two principal questions to be determined in this case must be answered in the affirmative and the decree will be affirmed. We will require the heirs at law to pay the costs in this Court and the appellant to pay the costs below.

Decree affirmed, the heirs at law appearing in this case topay the costs in this Court, including that of transmitting therecord, and the appellant (Thomas J. Lindsay) to pay thecosts below.

(Decided March 27th, 1906.)