In re Will

• Decision Date: 17 August 1936
• Citation: 37 Del. 514,186 A. 890
• Parties: IN RE MARTHA KEMP'S WILL
• Court: Delaware Superior Court

186 A. 890

37 Del. 514

IN RE MARTHA KEMP'S WILL

Superior Court of Delaware, Sussex County

August 17, 1936

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Superior Court for Sussex County, No. 41, June Term, 1936.

Appeal from a decree of the Register of Wills for Sussex County admitting to probate, against caveat, a paper writing purporting to be the last will and testament of Martha Kemp, deceased.

The paper writing was offered for probate by The Sussex Trust Company, a corporation of Delaware, which was named as executor therein. A caveat was filed on behalf of Bertha M. Bogan, one of the children and next of kin of the deceased, for the reasons that (a) the paper writing was not intended to be the last will and testament of the deceased, (b) that the paper writing was not executed as a last will and testament, and (c) that the paper writing was not executed by the deceased as and for her last will and testament in the manner and form prescribed by the statute.

The Register of Wills admitted the paper writing to probate. Thereafter, Bertha M. Bogan, the caveator, appealed from the decree of the Register of Wills, and Gilbert C. Bogan, Eugene F. Bogan and Margaret Mitchell, of Washington, D. C., and Dorothy V. Kiess, of Margate, New Jersey, legatees named in the paper writing were allowed, upon their petition, to intervene as parties appellant; and Ethel F. Richardson, Florence Hobson, Elbert Miller, Virginia Miller, Charles V. Kemp, Thomas Cecil Kemp, Betty Kemp, John Kemp Hobson, Thomas K. Miller, and Lewes Presbyterian Church, legatees named in the paper writing, were allowed, upon their petition, to intervene and to be considered as parties respondent, there having been no citations issued to them. All parties in interest were represented by counsel.

The testimony, for the most part, was not in conflict. It was undisputed that about one week prior to October 11, 1935, Martha Kemp, a widow, residing in Lewes, Delaware, stated to Thomas R. Ingram, Cashier of The Sussex Trust Company, at its banking house in Lewes, that she wanted to make a will. Mr. Ingram made notes of her desires which contemplated a disposition of her property between her deceased husband's family and her own. She was told to give the matter more thought. She returned to the bank on October 11th, went over the memoranda or notes and confirmed them. Mr. Ingram told her he would write the will in regular form, but she insisted upon signing the papers as she was going to Washington, and wanted it done. She signed the memoranda and requested Mr. Ingram and Clara M. Maull, a bank employee, to witness her signature. The memoranda, or notes, were written in pencil on two thin yellow sheets of paper, similar to that used for making typewritten copies, and the paper writing was as follows:

"Memo of Will of Martha Kemp--Pay debts. funeral expense & tomb for self & husband--same kind of casket as husband--All jewelry & clothing to my daughters

My homestead & furniture therein [O>to daughter Ethel on Lewes Beach and No 1533--8th st Washington--to daughter Ethel.

My Bungalow Lewes Beach--(front bungalow) near Coast guard station) [O>to and No--1531--8th st--Washington to my daughter Bertha--

My rear Bungalow--Lewes Beach

Sister in law

to [O>Niece Florence Hobson--

Trust Fund $ 5000--And 2 story House at Lewes [O>to The Coast Guard To Sussex Trust Co. Trustee--Income to Albert Miller for life--Use of [O>Bungalow House as home--If not use as home Trustee to have power to sell and add to 5M--with Income to Albert Miller for life. Upon death of Albert Miller--Trust Closed--paid to his wife and Surviving children Share & Share alike--

To Virginia Miller--

$ 500 in cash--

Chas V. Kemp--

$ 1000 in cash

Thomas Cecil Kemp--

500

Betty Kemp--

500--

Grandchildren--$ 250 each.

Dorothy

Gilbert

Eugene

Margaret

Lewes P. Ch ----- ----- Trust. 100--for Cemetery--The S. T. Co. Trustee

Residue to John Kemp Hobson and Thomas K. Miller share & Share alike--Them & their heirs

The Sussex Trust Co--Executor

(Read--2 pages & approved)

Lewes Del Oct 11th 1935 Martha Kemp

Witness--T R Ingram

Clara M Maull--"

Mr. Ingram testified that Mrs. Kemp went over the paper writing with him item by item; that she was above twenty-one years of age; that she was of sound and disposing mind and memory; that she signed it in the presence of himself and Miss Maull; that he and Miss Maull subscribed it in her presence and in the presence of each other; that she said she wanted it for her will and that she wanted to sign it before she went to Washington and did not have time to wait for the drafting of a "full will."

Clara M. Maull testified that she heard Mrs. Kemp say she wanted to sign and execute the paper writing as her will; that she and Mr. Ingram signed it as witnesses after Mrs. Kemp had signed it, and in her presence and in the presence of each other. She also testified that Mrs. Kemp was upward of twenty-one years in age, and was of sound and disposing mind and memory. Under cross examination, she testified that while she was not present all of the time at the conference of Mrs. Kemp and Mr. Ingram on October 11, she was "in and out," and knew that Mrs. Kemp read the notes or that they were read to her. She said that Mrs. Kemp did not "exactly" ask her to sign the paper, but Mr. Ingram suggested that she sign it, as two witnesses were necessary, and that Mrs. Kemp said "alright."

William Virden, a director of The Sussex Trust Company, testified that a day or so before Mrs. Kemp went to Washington as he later was informed, he saw her with "him," presumably meaning Mr. Ingram, at the bank, sitting at a table; that "he" held a yellow paper in front of her, and said "Now I will have to have it typewritten and fix it up"; and that the last thing he heard her say was "I would like to sign it now."

There was in evidence testimony of an undertaker, of Lewes, that before Mrs. Kemp left for Washington, she gave him definite instructions as to her burial.

Ethel Richardson, a daughter, testified that Mrs. Kemp went to the home of Mrs. Richardson, in Washington, on October 12, 1935; that her purpose in Washington was to have a physical examination; that she went to a hospital for radium treatment on October 16, and remained there until her death on November 20; that her mother told her about the will on Saturday when she came, and said, "She was very glad that it was all settled."

On the appellants' behalf there was in evidence the fact that Mr. Ingram, from the notes, had prepared a will in form, which was not signed by Mrs. Kemp. There was allowed in evidence a letter written by Mrs. Richardson, at the request of Mrs. Kemp, to Mr. Ingram, in which it was stated, "My mother, Mrs. Kemp wishes me to ask you to please hold up the writing of her will until she returns as she wants to make some changes." Mr. Ingram's letter in reply contained these statements: "The matter you mention has not been fully completed, merely a rough penciled signed memorandum, however, it might hold if anything happened. If there is likelihood of serious illness I would like to check it over with her while she is able to make decisions."

There was also allowed in evidence a letter of Mrs. Richardson to Mr. Ingram, dated October 29, 1935, in which it was written, "My mother told us she made a will and from what she says we think it is not as it should be but I really do not believe she knows how she settled it. I am sure she would want it fixed so there would be no trouble so we would appreciate it if you could help her make a will." To this Mr. Ingram replied, saying, inter alia, "If you find that your mother is stronger and think capable of concentrating on the rightful disposition of her estate, and want me to do so, I will try to arrange to make a special trip." There was also in evidence a letter of Mr. Ingram in which he refers to "Mrs. Kemp's memorandum of instructions."

Mrs. Bogan testified that Mrs. Kemp said to her, shortly after she entered the hospital, "I ought not to tell you this, but I went to see Mr. Ingram about making my will before I left Lewes, and he is going to draw up my will and have it ready for me to sign when I get home."

Emory J. Kiess, Mrs. Bogan's son-in-law, testified that he saw Mr. Ingram on November 29, 1935, at Lewes, and that Mrs. Ingram told him that Mrs. Kemp had not declared the paper dated October 11, 1935 to be her will when signed by her; that he did not know why Mrs. Kemp signed it; that he did not know whether Miss Maull knew whether or not she was witnessing a will; that the document was written on October 11, 1935 and not a week previously; and that Ingram thought there was grave doubt whether the paper would be accepted as a will. Mr. Ingram denied having made these statements.

It appeared in evidence that Mrs. Kemp had been given radium treatment for some condition, presumably cancerous, about two years before her death.

Decision with respect to costs and counsel fees is reversed.

Robert G. Houston and Eugene F. Bogan (of Washington, D. C.) for appellants.

Joseph L. Cahall and James M. Tunnell for appellees.

LAYTON, C. J., and RODNEY, J., sitting.

OPINION

LAYTON, C. J.

The statute, Section 3241, Rev. Code 1915, provides,

"Every will, whether of personal or real estate, must be in writing and signed by the testator, or by some person subscribing the testator's name in his presence and by his express direction, and attested and subscribed in his presence by two or more credible witnesses, or it shall be void."

It is not denied that the paper writing was signed by the testatrix. The witnesses to her signature were "credible witnesses" even though they were employed by the executor. Hudson v....