Estep v. Morris

• Decision Date: 02 July 1873
• Parties: WILLIAM H. ESTEP, and others, v. GEORGE H. MORRIS, Guardian, and others.
• Court: Maryland Court of Appeals

38 Md. 417

WILLIAM H. ESTEP, and others, v. GEORGE H. MORRIS, Guardian, and others.

Court of Appeals of Maryland

July 2, 1873

APPEAL from the Circuit Court for Prince George's County, in Equity.

John L Estep, of Prince George's County, departed this life sometime in the month of June, 1870, leaving a last will and testament which was duly admitted to probate on the 23rd of August, 1870. The testator after providing by his will a reasonable and comfortable support for his wife during her life, devised to his three infant children, James T., Richard A., and Benjamin N. Estep, his entire estate, real, personal and mixed, to be equally divided between them, share and share alike; and should any one of said children die during his minority, his portion of the estate was to go to the survivor or survivors of them as the case might be. The testator appointed the appellee, George H. Morris, the sole executor of his will, and also guardian of the said infant children; he accepted both offices, was duly qualified, and entered upon the discharge of the duties attached to said appointments. The wife of the testator died before her husband; he was married twice, and left at the time of his death four children by his first marriage, of full age namely, William H. Estep, George H. Estep, Joanna P. Gibbons the wife of George T. Gibbons, and Ann M. Oliver, the wife of Leonard Oliver; and three minor children by his second marriage, the devisees under his will. The said George H Morris was one of the subscribing witnesses to the will of the testator, and the only witness who proved it in the Orphans' Court, the two other subscribing witnesses being dead at the time the will was probated. No caveat was filed to the will. The personal estate of the testator was administered by the executor who filed his account in the office of the Register of Wills, distributing the residue after paying debts and expenses, among James, Richard and Benjamin Estep.

On the 28th of February, 1871, Morris as guardian and next friend of the infant children of the testator, filed a bill for the sale of the real estate devised to them by their father alleging that the same was not susceptible of advantageous division among them, and that it would be greatly to their interest that said estate should be sold, and the proceeds thereof invested in some productive fund for their benefit. A decree was accordingly passed for the sale of the said estate, and a trustee appointed to make the sale. The sale was made and reported to the Court, William H. Tubman being the purchaser, and on the 19th of December, 1871, an order nisi was passed. On the 13th of January, 1872, William H. Estep, George T. Estep, George T. Gibbons and Joanna, his wife, and Leonard Oliver and Ann, his wife, filed the following exceptions to the ratification of the sale:

1st. Because the Court had no jurisdiction to pass the decree under which the sale was made, for the reason that the said John L. Estep, died intestate; the pretended will not having been legally executed, or properly proven or probated, is inoperative and void.

2nd. Because the said John L. Estep having died intestate, the exceptants were entitled to a portion of his real estate, and ought to have been made parties to the proceeding under which the decree was passed; and the whole proceeding was irregular.

3rd. Because the paper writing purporting to be the last will and testament of John L. Estep, was not legally executed and attested, and is void and inoperative to pass title to the real estate therein mentioned, and attempted to be devised, because George H. Morris, one of the subscribing witnesses to said alleged will, having been appointed thereby both executor and guardian, and having accepted both offices, is not, therefore, either a competent or credible witness to attest said will.

On the 19th of October, 1872, the Court, (FORD, J.,) passed an order overruling the exceptions and finally ratifying and confirming the sale.

From this order the exceptants appealed.

The cause was argued before BARTOL, C.J., BOWIE, GRASON, MILLER and ROBINSON, J.

Frank. H. Stockett, for the appellants.

The admission of the will to probate is not conclusive as to its validity to transmit real estate. It is only prima facie, and its due execution and attestation may be inquired of by persons having an interest in the realty. Massey vs. Massey, 4 H. & J., 145; Townshend vs. Duncan, 2 Bland, 45; Warford, et al. Lessee vs. Colvin, 14 Md., 532, 556; Randall vs. Hodges, 3 Bland, 479; Modern Probate of Wills, 475 to 487; Darby vs. Mayer, 10 Wheat., 465.

Was George H. Morris, who was named in the will as executor and guardian, a ""credible" or competent witness to establish it? Section 301, of Art. 93, requires that all devises of real estate "shall be attested and subscribed in the presence of the testator, by three or four credible witnesses, or else they shall be utterly void and of none effect."

Credible or competent witnesses are persons who are not disqualified by reason of interest or other cause to be admitted as witnesses. Smith's Probate Law, 22; Wyndham vs. Chetwynd, 1 Burr., 414; Amory vs. Fellowes, 5 Mass., 219; Morris was, therefore, as executor and guardian, clearly interested in establishing this will, and therefore not a "credible" witness. Holdfast vs. Dowsing, 2 Strange, 1253; Wyndham vs. Chetwynd, 1 Burr., 414; Emanuel vs. Constable, 3 Russel, 436; Helliard vs. Jennings, 1 L. Raymond, 505; Hawes vs. Humphreys, 9 Pick., 350; Snelgrove vs. Snelgrove, 4 Des., 274; Allison vs. Allison, 4 Hawk's Rep., 141; Amory vs. Fellowes, 5 Mass., 219.

Morris being clearly an incompetent witness to attest the due execution of said will--that is, not "credible," on the ground of interest, under section 301, of Art. 93, the question arises, was he made competent by the Act of 1864, ch. 109? The Legislature, by that Act, never intended to dispense with the qualifications of attesting witnesses to wills of real estate, as had been established before.

The Act certainly does not, in words, repeal the former law. It only proposes to repeal the 1st, 2nd, 3rd, 4th and 5th sections of the 37th Art. of the Code, and to re-enact new provisions in the place and numbers of the sections so repealed. See Art. 3, sec. 29, of the Constitution, as determining the scope of the Act of 1864, ch. 109.

And though the words of the Act of 1864 are very broad and general, the Court should hesitate before anything short of express words or unmistakable intention, should be allowed to repeal a law so venerable from age, and so admirable, as shown by experience, in protecting titles of real estate and the interests of heirs, as the one in question. If the Legislature meant that interest should not discredit or render incompetent an attesting witness to a will, then the children of a dying person might be stript of all the estate of their father, which might be given by a fraudulent will to three persons, who alone were the attesting witnesses, and if their credibility could not be destroyed before the jury, the Court could not exclude as " incompetent, " and the will would be established.

In such a case the Court will so construe both laws as to give to each its full effect--they not conflicting. Pott. Dwar. on Statutes, 174, et seq.; Sedgwick on Stat. Law, ch. 6, pages 230-2-3 to 51; 1 Kent Com., 462.

In reply to the objection of the appellees, that the appellants not being parties to the proceeding under which the property was sold, had no right to object to the ratification of the sale, the following authorities were referred to: Glenn vs. Clapp, 11 G. & J., 1; Kauffman vs. Walker, 9 Md., 229; Bolgiano vs. Cooke, 19 Md., 375; Earle vs. Turton, et al., 26 Md., 34.

Joseph K. Roberts, Jr., for the appellees.

The Court below properly overruled the exceptions and ratified the sale,

1st. Because George H. Morris was a competent and credible witness to attest the will, and the same was, therefore, legally executed, and good to pass both real and personal estate, there being three competent and credible witnesses to the same.

It would be difficult to frame a law, the language of which could be more broad and comprehensive than that of the first section of the Act of 1864, ch. 109; and the intent of the law being to authorize and enable parties in interest to testify in any suit or proceeding, there is no good reason why an executor cannot be a witness to a will. The probate of a will is certainly a proceeding in the Orphans' Court, and an executor to a will is no more interested than a plaintiff or defendant to a suit or other action in the other Courts of this State.

The tendency of the English decisions in construing the 6 and 7 Vict., ch. 85, and 14 and 15 Vict., ch. 99, from which the Act of 1864 is taken, is to the effect that no person interested in any manner is thereby disqualified as a witness in any proceeding, suit or action, and the language of the Act implies such a meaning. Act of 1864, ch. 109; 2 Taylor on Evidence, ( Ed. 1868.)

2nd. The will was properly probated or proven. The Register of Wills certifies that Geo. H. Morris (one of the subscribing witnesses) made oath that he saw the testator sign and seal said will, and pronounce the same to be his will, & c.; and that he, and William Hall and Geo. W. Morton, the other two subscribing witnesses, both since deceased, did subscribe their names thereto, at the request of the testator, in his presence, and of each other. Morris, the only surviving witness, proves that he signed it; that he saw the other two witnesses sign it, and that they are both dead. This is certainly sufficient proof of the execution of the will. Code, Art. 93, secs. 323 and 326.

More than that, the probate of a...