Appeal of Deake

• Decision Date: 17 January 1888
• Parties: Appeal of DEAKE.
• Court: Maine Supreme Court

12 A. 790

80 Me. 50

Appeal of DEAKE.¹

Supreme Judicial Court of Maine.

January 17, 1888.

Report from supreme judicial court, Cumberland county.

Appeal from the decree of the judge of probate, disallowing the will of Benjamin Deake. The opinion states the material facts.

N. & H. B. Cleaves, for appellants. Mattocks, Coombs & Neal, for appellees.

VIRGIN, J. This is an appeal from a decree of the judge of probate disallowing the proposed will of Benjamin Deake, late of Cape Elizabeth, deceased. The report discloses the following among other facts: The testator resided for many years in this county, and died here, August 7, 1854, leaving real estate in Boston, real and personal estate in this county, and two sons, George and Charles Deake, his only heirs at law. On November 21, 1854, no will having been produced or suggested, Charles Deake was appointed administrator on his father's estate. Several years prior to 1873, Charles resided with his brother, George, in Boston, and died there in December of that year, leaving one son (appellant) and two daughters, his only heirs at law. George Deake died in Boston in 1885, leaving a widow, but no children. Some months after Charles' decease, in December, 1873, his daughter Mrs. Browne, then about 20 years of age, while looking over some old letters and other papers at her uncle George's, took, among others, what now purports to be a holographic will of her grandfather, Benjamin Deake,—the purport of which she did not then know, having incidentally taken it, with the others, out of mere curiosity, as specimens of his handwriting and signature,—tied them together, and carried them to New York, where she then resided, and never saw them afterwards until found there by her brother, (appellant,) who after the decease of his uncle George, in 1885, having learned then for the first time, in an interview with the latter's widow, that the will was made, and having thereupon sought for it in vain among his uncle George's papers, finally found it in the bundle of papers in New York, where Mrs. Browne unwittingly left it.

The will is quite lengthy, untechnically drawn, and phonetical in its orthography; but the intention of the testator is not left in doubt. The only attestation clause preceding the signatures of the witnesses is simply the word "witness;" but, as the statute (Rev. St. c. 74, § 1) simply requires a will to be "subscribed in his (testator's) presence by three credible attesting witnesses," no testimonium clause is necessary. 1 Redf. Wills, 231, and cases in note. The statute does not require the testator to sign in the presence of the witnesses, but does require them to subscribe in his presence, in order that he may identify the instrument which they subscribe as his will. Dewey v. Dewey, 1 Mete. 349; 2 Greenl. Ev. § 678. They need not subscribe at the same time, or in the presence of each other. Id. They need not see him sign; his acknowledgment of his signature to each separately, by word or act, accompanied with a request for them to attest as witnesses, is clearly sufficient. Stonehouse v. Exelyn, 3 P. Wms. 254; Hogan v. Grosvenor, 10 Mete. 56; White v. Museum, 6 Bing. 310. They need not know that the instrument subscribed by them is a will; for the fact that it is in his own handwriting is sufficient evidence that the testator knew its contents, and intended it to be his will. Osborn v. Cook, 11 Cush. 532; Ela v. Edwards, 16 Gray, 91, and cases there cited. Moreover, when, as in this case, all the witnesses are dead, it is well settled that proof of the genuineness of the signatures of the testator and of the witnesses is prima facie proof that all the requisites of the statutes have been complied with, especially when, as in the case in hand, the witnesses were men of character, and friends and neighbors of the testator. Hands v. James, Comyn, 531; Croft v. Pawlet, 2 Strange, 1109; Nickerson v. Buck, 12 Cush. 332; Ela v. Edwards, supra. The will is proved to be in the handwriting of the testator; the signatures of the testator and of the respective witnesses are amply established as genuine; and, in the absence of any suggestion to the contrary, we considered the due execution of the will established.

The principal objection interposed to the probate of the will, proposed for the first time in November, 1885,—31 years after the decease of the testator, —is based on Rev. St. c. 64, § 1, which, so far as applicable to this will, provides; "After twenty years from the death of any person, no probate of his will shall be originally granted." This bar is sought to be avoided under an exception thereto found in St. 1887, c. 108, which provides: "When an original last will is produced for probate, the time during which it has been lost, suppressed, concealed, or carried out of the state shall not be taken as part of the limitation provided in the first section." We are of opinion, however, that the provisions of that new statute cannot affect this case. This report was made up at the April term, 1886, of the supreme court of probate; was entered at the succeeding July law term, when it was set down to be argued by both parties within 90 days; but the arguments were not filed until June, 1887. In the mean time the new statute was enacted, and did not take effect until April 16, 1887,—nearly one year after the case was set down for argument; so that the 20-years bar had expired 13 years before the new statute became effective. Now, passing by the question whether the legislature had authority to revive the right of probating a will after it had become fully barred by the express provisions of the statute, (Atkinson v. Bunlap, 50 Me. 111; Wood, Lim. 32,) we are of opinion that a fair construction of the new statute will not allow it to affect this case; for it is one of the settled rules of the interpretation of the statutes (though, like all others, subject to exceptions) that they shall always have a prospective operation, unless the intention of the legislature is clearly expressed, or clearly to be implied from their provisions that they shall apply to past transactions, (Bryant v. Merrill, 55 Me. 515.) We may well adopt the language of KENT, J., who, in speaking for the court in relation to another statute passed during the pendency of an action, said: "There is no language in the new statute which indicates any intention of the legislature to make it retrospective, or to interfere with actions pending. We never hold an act to be retrospective unless it is plain that no other construction can fairly be given." Rogers v. Greenbush, 5b Me. 397. See, also, Garfield v. Bemis, 2 Allen, 445; Kinsman v. Cambridge, 121 Mass. 558; Harvey v. Tyler, 2 Wall. 329; 1 Kent, Comm. *455; Bash v. Van-Kleeck, 7 Johns. 477; Smith, Const. & St. Law, § 172.

But it does not necessarily follow that, because more than 20 years have elapsed since the death of the testator, his will may not now be admitted to probate; for fraudulent concealment of a cause of action has long been considered a good replication to a statute bar in actions at law, as well as in suits in equity, (2 Story, Eq. Jur. § 1521; Sherwood v. Sutton, 5 Mason, 143, 145, and cases; Wood, Lim. § 275; Ang. Lim. c. 18, § 4 et seq;) though judges have not always agreed respecting the grounds for the rule. This question became res judicata in this state long before the separation. Corporation v....