Ellison v. Clayton

• Decision Date: 12 January 1933
• Docket Number: 68.
• Citation: 163 A. 695,164 Md. 35
• Parties: ELLISON ET AL. v. CLAYTON.
• Court: Maryland Court of Appeals

163 A. 695

164 Md. 35

ELLISON ET AL. v. CLAYTON.

No. 68.

Court of Appeals of Maryland

January 12, 1933

Appeal from Circuit Court, Cecil County; Wm. H. Adkins, Lewin W Wickes, and Thomas J. Keating, Judges.

Application by Mary E. Clayton for the probate as a will of a certain letter, opposed by L. Frank Ellison and another. From a ruling receiving and probating the letter as a will contestants appeal.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, OFFUTT, DIGGES PARKE, and SLOAN, JJ.

James F. Evans, of Elkton, for appellants.

John W Huxley, Jr., of Wilmington, Del. (Joshua Clayton, of Elkton, on the brief), for appellee.

BOND C.J.

The controversy in this case is on the propriety of the Orphans' Court's receiving and probating as a will the following letter written by an owner of four bank deposits to the depositary:

"August 18, 1931.

Delaware Trust Company Middletown, Delaware

Gentlemen At this date I have four accounts in your bank, as follows:--

Checking Accounts.

'Charles S. Ellison, Sr.'

'Charles S. Ellison, Sr., Farm Account.'

Savings Accounts.

'No. 1103--Charles S. Ellison.'

'No. 1469--Charles S. Ellison, Special Account.'

I desire that to each of these accounts be added the name of 'Mary E. Clayton,' my daughter. I desire the accounts to be changed to read, 'Charles S. Ellison and/or Mary E. Clayton,' in each and in all of the four accounts.

It is understood that I am to sign all checks so long as I am physically able, and the change in the accounts is made with the express intent of the balances becoming automatically the property of Mary E. Clayton upon my decease.

Charles S. Ellison. [ Seal]

Witness

[Signed] Clarence P. Weber

[Signed] W. Harman Money."

It appears from a petition and an answer filed in the Orphans' Court that the writer of this letter, Charles S. Ellison, Sr., had left a will in the usual form, dated on November 21, 1928, with a codicil attached under date of January 22, 1929; and that the will and codicil were duly probated shortly after the testator's death on November 5, 1931. On February 10, 1932, the letter was offered for probate as a codicil to the will, and, upon a caveat by the executors named in the will, that is, by the present appellants, an issue for determining whether the letter was or was not a testamentary paper was sent to the circuit court for trial by a jury. The jury answered that it was a testamentary paper, and, from rulings on the trial of the issue, this appeal is entered. The docket entries and a reference in the appellee's brief show that testimony was taken on the trial, and that the jury was instructed by the court on the principles which should control their decision, but the bill of exceptions to bring up trial proceedings on appeal contains none of the testimony and none of the instructions, and no note of any ruling except that on an offer of the letter in evidence. It is stated that the admission of the letter was objected to on the ground that the letter was not a paper of testamentary character, and that the court overruled the objection and admitted the paper in evidence.

Whether an instrument is of a testamentary character or evidences a present disposition of property, is a question of the intention of the decedent when signing it, to be ascertained from the face of the paper if the intention is clearly expressed in it, or by the aid of extrinsic evidence when the intention is not clearly expressed. Byers v. Hoppe, 61 Md. 206, 48 Am. Rep. 89. The form does not overcome manifestations of intention otherwise; papers in many forms other than that in which wills are customarily made have been held testamentary, and, on the other hand, present dispositions for future enjoyment have been held not to be testamentary. Parol evidence may sometimes be decisive of the question. Kelleher v. Kernan, 60 Md. 440, 448; Byers v. Hoppe, supra; Wareham v. Sellers, 9 Gill & J. 98; Robey v. Hannon, 6...