Brengle v. Tucker

• Decision Date: 11 January 1911
• Citation: 80 A. 224,114 Md. 597
• Parties: BRENGLE v. TUCKER.
• Court: Maryland Court of Appeals

80 A. 224

114 Md. 597

BRENGLE v. TUCKER.

Court of Appeals of Maryland

January 11, 1911

Appeal from Orphans' Court, Frederick County.

Proceedings by Lennie S. Brengle for the probate of the will of Charles A. Tucker, deceased, and for the revocation of letters of administration granted to Daniel Tucker. From an order denying probate, plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE PATTISON, and URNER, JJ.

H Dorsey Etchison, for appellant.

Frank L. Stoner, Leo Weinberg, and Reno S. Harp, for appellee.

BURKE J.

Charles A. Tucker, of Frederick county, died in the Hebrew Hospital in Baltimore City on the 26th of July, 1910, possessed of quite a large estate consisting of real and personal property. On the afternoon of July 25, 1910, he wrote and signed a paper in the following words which he immediately delivered to Lennie S. Brengle, the appellant: "In the event of my death, the houses and ground rents shall revert to Lennie Brengle of Frederick. The balance in Frederick Md., to be shared outside to the cousins in Cumberland Md." This paper writing was witnessed and subscribed by F. H. Hermann, M. D. On July 28, 1910, the paper was left for safe-keeping in the office of the register of wills of Frederick county. The orphans' court for that county being of opinion that Charles A. Tucker had died intestate, granted letters of administration upon his estate to Daniel Tucker, the appellee, who qualified and proceeded to administer the estate. On August 8, 1910, the appellant filed a petition in that court asking that this paper writing be admitted to probate as the last will and testament of Charles A. Tucker, deceased, and that letters of administration upon his estate be granted to some suitable person, inasmuch as no executor was named in the alleged will. The petition further stated that the letters granted to the appellee should be revoked. On August 19, 1910, the appellant filed an amended petition asking for the probate of the paper writing as the last will and testament of Charles A. Tucker, and setting out some facts additional to those contained in her first petition.

The circumstances under which the writing was executed and upon which it is contended that it should have been admitted as the last will and testament of the deceased are fully set forth in the original and amended petitions. In the original petition it is alleged that "the said Charles A. Tucker was taken to said hospital by his physician, Dr. F. H Hermann on the morning of said July 25, 1910, and between 1 and half past 1 o'clock, your petitioner was telephoned for by said Dr. Hermann to come to the hospital, and in response to that summons your petitioner went at once. Upon arrival there she consulted with Dr. Hermann and his assistant, Dr. Bagley, and the nurse, Miss Duke, about Mr. Tucker's condition; she was informed by them that they were watching the patient carefully and considering the advisability of an operation. This watching occupied the time until nearly 3 o'clock when Dr. Hermann called your petitioner out of the room where Mr. Tucker was, and informed her that an operation had been decided upon; that it was imperatively necessary, and would have to be performed without any delay, and desired to know if she, your petitioner, would consent. In reply to this advice of Dr. Hermann, your petitioner said, that if he, Mr. Tucker, was satisfied, she was; thereupon, all the parties including your petitioner, entered the sick room, and Dr. Hermann went to where Mr. Tucker lay on the bed, and told him that the only hope was poor. He further told him that he supposed he realized his condition, and Mr. Tucker replied, 'Yes.' Mr. Tucker then asked Dr. Hermann to set him up in bed, and this was done. Then Mr. Tucker asked Dr. Hermann for a piece of paper and pencil, and Dr. Hermann immediately took his prescription book out of his pocket, tore a leaf out, handed it to Mr. Tucker together with a fountain pen. Mr. Tucker while sitting up in bed immediately laid the piece of paper given him upon the prescription book and wrote the paper writing mentioned in the first paragraph of this petition. He then handed the paper to Dr. Hermann which he had written, and which was still on the book, retaining a partial hold of said book and paper, and asked Dr. Hermann to sign it, and as soon as Dr. Hermann signed it, he (Mr. Tucker) immediately gave the paper one fold and handed it to your petitioner, and without any one in the room knowing the contents of said paper except Dr. Hermann who was leaning over Mr. Tucker while he was writing said paper, your petitioner not even knowing its contents, your petitioner took said folded paper as soon as given to her by Mr. Tucker, placed it in her purse. As soon as this paper writing was thus...