Colvin v. Warford

• Decision Date: 11 December 1863
• Citation: 20 Md. 357
• Parties: RICHARD COLVIN v. ELISHA WARFORD, ET ALS., LESSEE.
• Court: Maryland Court of Appeals

20 Md. 357

RICHARD COLVIN v. ELISHA WARFORD, ET ALS., LESSEE.

Court of Appeals of Maryland.

December 11, 1863

[Copyrighted Material Omitted]

APPEAL from the Superior Court of Baltimore City:

This case was heretofore before this Court, and is reported in 14 Md. Rep., 532. It was then, as now, an action of ejectment, instituted in the Superior Court of Baltimore City, by the appellees, as plaintiffs, alleging themselves to be eight of eleven heirs at law of Rachel Colvin, and claiming a large amount of real estate, in different parts of the City of Baltimore.

To defeat the claim of the appellees, the appellant gave in evidence two wills of the said Rachel, duly executed to pass real estate. One was a will dated the 6th of April, A. D 1848, and which had been duly admitted to probate in the Orphans' Court of Baltimore City, after the trial of issues, sent from said Court to the Superior Court of Baltimore City, and thence removed to the Circuit Court for Baltimore County. The ruling of the Court on the trial of the said issues, and its judgment on the finding of the jury thereon, were affirmed by this Court in 7 Md. Rep., 582; and in that case, page 583, the issues, which were all found in favor of the present appellant, are given. The other was a will dated on the 30th of October 1845.

By both of these wills her entire real estate was devised to the appellant, and other devisees competent to take; and none of the appellees, or other heirs at law of the said Rachel, are named in either of said wills of 1845 or 1848.

To overcome the effect of these wills, the appellees in the trial below in the present case, offered evidence to show that said wills were executed by said Rachel Colvin, when she was not of a sound and disposing mind, that the appellant improperly influenced her in their execution, and that even if the will of 1845, was a valid will at the period of its execution, it was revoked by a subsequent will made by said Rachel in the year 1847, but not in existence at the death of said testatrix; and which said will of 1847, the appellees relied on as valid and operative to revoke the will of 1845.

The appellant proved that neither in said will of 1847, nor in any of the wills of said testatrix, were the appellees, or any of them, named as devisees. Such portions of the mass of evidence adduced at the trial of the cause, as are essential to a proper understanding of the points decided and stated in effect, and appear infra in the several prayers of the plaintiffs and defendant, the instructions given by the Court below, and the opinion of this Court.

In the examination-in-chief of Mr. Teackle, (one of the plaintiffs' witnesses,) in reference to the will of 1848, and before the defendant had examined any witness, the said witness proved that the Rev. Dr. Johns, and Dr. Andrews, were witnesses to said will, and that his brother, Dr. Teackle, who was also a witness to said will, was dead; and said witness then proceeded to prove certain declarations of his said brother, made to him, the witness, at his office, on the afternoon of the day upon which the will was executed, and also declarations made to Dr. Johns, another of said witnesses, to the effect that he, the said Dr. Teackle, although he witnessed the will, did not consider the testatrix fit to make it, and that in witnessing said will, he was only attesting her signature; to the proof of these declarations of Dr. Teackle, the defendant, (the appellant,) objected, but the Court overruled the objection, and permitted said declarations to be given in evidence to the jury, to which the defendant excepted, and this constitutes the appellants' first exception.

Second exception. The testimony being closed, the lessors of the plaintiff by their counsel submitted eleven prayers, of which the 1st, 2nd, 6th and 7th rejected by the Court, are here omitted. The prayers granted were as follows:

3d. That it is the province of the jury to decide upon the testamentary capacity of the said Rachel Colvin, at the respective times of the execution by her of the wills of 30th October 1845, and the 6th April 1848, if the jury shall find that she did execute them, and in doing so, it is competent for the jury to take into consideration the departure by the said Rachel in and by the provisions of the said wills from her testamentary purposes and intentions entertained, declared and long adhered to by her, at a period when her mind was undoubtedly sane, in connection with all the circumstances of the case, if the jury from the evidence shall believe that such testamentary purposes and intentions were entertained, declared and long adhered to by her at a period when her mind was undoubtedly sane, and if the jury also find from the evidence such departure.

4th. That it is the province of the jury to decide upon the testamentary capacity of the said Rachel Colvin at the respective times of the executions by her of the wills of the 30th October 1845, and the 6th April 1848, if the jury shall find that she did execute them, and in doing so, it is competent for the jury to take into consideration the oscillations and fluctuations of the testamentary intentions of the said Rachel as manifested in the execution of many wills, and the preparation of many more, which she did not execute, differing materially and essentially in their provisions in connection with all the circumstances of the case, provided the jury shall find such oscillations and fluctuations, manifested as aforesaid, to be true in point of fact.

5th. That it is the province of the jury to decide upon the testamentary capacity of the said Rachel Colvin at the times mentioned in the two preceding prayers, and in doing so, it is competent for them to take into their consideration the fact of the said Rachel having been attacked by apoplexy and paralysis in 1842 and 1843, if the jury shall believe such facts, and also the fact of her having died a maniac in 1843, if they shall believe such fact, and to judge of the effect of such attack in 1842 and 1843, upon the testamentary capacity of the said Rachel in connection with all the circumstances of the case.

8th. That the verdict of the jury in this case cannot affect the validity of any deeds or contracts, alleged to have been made by the deceased at any time with other persons not parties to this cause.

9th. That in deciding upon the testamentary capacity of the said Rachel Colvin, the jury may take into consideration, in connection with all the circumstances of the case, any influence which the defendant may have exerted upon the mind of the deceased, in reference to her disposition of her property by will. Whatever they may find the degree of that influence to have been, provided the jury find from the evidence that any such influence was exerted by the defendant.

10th. The plaintiffs pray the Court to instruct the jury, that if they believe from the evidence that Rachel Colvin, after the attack of hemorrhage in the early part of 1849, became, or was sane, and whilst in that condition, sent for her counsel, Mr. Teackle, who had drawn for her a will which had been executed by her on the 6th of April 1848, (if the jury so find the facts,) and that she drew it from under her pillow, and holding it up to him asked him how he came to let her execute it, and that he said to her that he had protested against it, and that she then said she was crazy when she executed that will, but was too weak then to give him instructions for another, and that Mr. Teackle could not get into the house to see her afterwards, though he called several times, until she relapsed into a state of insanity, or became insane, (according as the jury may find as to her then and previous condition,) and if the jury believe that Rachel Colvin, whilst thus conversing with Mr. Teackle, desired and designed to speak the truth, then this is evidence from which the jury may infer, in connection with the other facts in this case, that she was not of sound and disposing mind, and capable of making a valid deed or contract when she did so execute the will of the 6th of April 1848, given in evidence by defendant.

11th. The facts upon which the following prayer is based, are as follows:

The lot No. 13, as specified and described in the declaration, need not be repeated here.

The defendant claims the corner portion thereof, nineteen feet on Baltimore street, and thirty-six feet on South street, as leasehold, in relation to which he adduces the following title, as that under which the said Rachel Colvin held the same at the time of her death: said corner lot is portion of a lot 36 feet on Baltimore street by 36 feet on South street leased by Nicholas Rogers to Jacob Welsh for 99 years, renewable forever, by deed of the 16th of July 1777, recorded in liber W. G., No. A, folio 168, subject to an annual ground-rent of £ 16 sterling. Said corner portion of 19 by 36 was assigned by Walsh to Usher and others, by deed dated the 29th September 1785, and recorded in liber W. G., No. X., folio 397, and subject to an annual rent of £ 8 sterling, payable to Nicholas Rogers, his heirs or assigns; and Usher and others assigned said portion to Patrick Colvin, the father of said Rachel, by deed dated 29th November 1792, recorded in liber W. G., No. K. K., folio 126, subject however to said last mentioned rent. The said Rachel Colvin, as the only surviving child and representative of her father, became entitled to the lease-hold interest in said portion assigned to said Patrick Colvin, and upon the fourth day of March 1823, by paper of that date, acknowledged and recorded in liber W. G., No. 167, folio 132, she purchased and sought to have conveyed to her by Lloyd N. Rogers, the only child and heir of said Nicholas, the...