Leitch v. Leitch

• Decision Date: 12 January 1911
• Citation: 79 A. 600,114 Md. 336
• Parties: LEITCH et al. v. LEITCH et al.
• Court: Maryland Court of Appeals

79 A. 600

114 Md. 336

LEITCH et al. v. LEITCH et al.

Court of Appeals of Maryland

January 12, 1911

Appeal from Circuit Court, Anne Arundel Country, in Equity; Jas. R Brashears, Judge.

Bill by William F. Leitch and others against Thomas Leitch and others to partition certain land. From a decree sustaining a demurrer to the bill in so far as it attempted to avoid a devise of certain of the land to defendant Thomas Leitch complainants appeal. Affirmed, and bill dismissed.

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

Robert Moss, for appellants.

James W. Owens and James M. Munroe, for appellees.

BRISCOE J.

The record in this case shows that Franklin Leitch, of Anne Arundel country, died in the month of August in the year 1909, leaving a last will and testament, which was on the 10th day of May, 1910, duly admitted to probate by the orphans' court of Anne Arundel county. The testator never married, and left surviving him, as his heirs at law, three brothers, one sister, and several nephews and nieces, the children of a deceased brother. By his will he devised to his brother Thomas Leitch "the property known as Tracey's Farm," consisting of a store, stock of goods, and dwellings. To his brother Manton Leitch "the property known as Town Point," consisting of house store, and stock of goods. To his sister, Mrs. Cunningham, his brother Wm. F. Leitch, and the heirs of his brother Columbus C. Leitch, he gave his "bank accounts" and "a balance of claim of Sam'l Leitch" to be equally divided between them. Thomas Leitch, a brother, and Annie E. Leitch, are the two subscribing witnesses to the will, and it was upon their evidence under oath that the orphans' court of Anne Arundel county admitted the will to probate and decreed it to be the genuine last will and testament of Franklin Leitch, deceased.

The question for our determination on the record is the validity or invalidity of the first clause of the will, which devised to Thomas Leitch the farm known and called "Tracey's Farm," containing 64 acres of land more or less and improved by a store and dwellings. This question is raised by a demurrer to a bill in equity, for a sale of this tract of land for purposes of partition, among the heirs at law of the testator, and the bill avers that Thomas Leitch, one of the devisees, being a witness to the will, the attempted devise to him of the real estate in question is absolutely null and void. In other words, it is urged upon the part of the appellants that, because Thomas Leitch is an attesting witness and a beneficiary, under the will, he can take no interest to the land under it by virtue of the Statute of 25 George II, chapter 2, which is claimed to be in force in this state.

There can be no question that, if this statute (25 George II) is in force here, the devise in question would "be utterly null and void" because the statute so declares in express terms. It provides that "if any person shall attest the execution of any will or codicil which shall be made after the 24th day of June in the year 1752 to whom any beneficial devise, legacy, estate, interest, *** or affecting any real or personal estate other than and except charges on lands, tenements or hereditaments for payment of any debt or debts, shall be thereby given or made, such devise, legacy, estate *** shall so far only as concerns such person attesting the execution of such will or codicil or any person claiming under him, be utterly null and void; and such person shall be admitted as a witness to the execution of such will or codicil, within the intent of the said act, notwithstanding such devise, legacy, estate, interest, gift, mentioned in such will or codicil." Alexander, British Statutes, 781. A legacy to a subscribing witness to a will or codicil of personalty is held to be good because a will of personalty did not require witnesses at that date. Emanuel v. Constable, 3 Russ. 436; Foster v. Banbury, 3 Sim. 40. This statute was passed in 1752, but, according to its provisions, did not go into effect, in any of "the colonies or plantations, in America," or apply to wills made before the 1st day of March, 1753. The title of the act is "An act for avoiding and putting an end to certain doubts and questions relating to the attestation of wills and codicils concerning real estates in that part of

Great Britain called England and in his Majesty's Colonies and Plantations in America."

No doubt can then be entertained that this was the law of Maryland until the year 1798, when the General Assembly of Maryland, by chapter 101 of the Acts of 1798, adopted and passed an entirely new system of laws and regulations concerning last wills and testaments, in lieu of and as a substitute for the existing laws and English statutes then in force, relating to wills. This act (chapter 101 of 1798) is, in part, as follows:

"An act for amending and reducing into system the laws and regulations concerning last wills and testaments, the duties of executors, administrators and guardians, and the rights of orphans and other representatives of deceased persons.

"Whereas the laws and regulations relative to the estates of deceased persons, comprehending a great variety of subjects, and interesting to citizens of every description, not only have become complicated and difficult to be understood but are found by experience to be greatly inadequate to the purposes for which they were framed.

"Section 2. Be it enacted by the General Assembly of Maryland, that every provision, rule, or regulation, contained in any Act of Assembly heretofore passed or in any English statute, introduced, used or practiced under in this state, which is inconsistent with or repugnant to anything contained in this act be and it is hereby repealed and rendered utterly void and of no effect.

"Section 3. And be it enacted, that the following rules, orders, and regulations, shall be taken, held and considered, in all courts, tribunals and offices, and by all judges, justices and officers in this state to be the law of the land.

"Section 4. All devises and bequests of any lands or tenements, devisable by law, shall be in writing, and signed by the party so devising the same or by some other person in his presence, and by his express direction and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses or else they shall be utterly void and of no effect."

Now it appears, by section 309 of article 93 of the Code of 1860, title "Testamentary Law," that every last will and testament executed in due form of law after the 1st day of June, 1850, should pass all the real estate which the testator had at the time of his death, and this section is now section 329 of article 93 of the Code of 1904. Section 4 (supra) of the Acts of 1798 will be found in totidem verbis in the Codes of 1860, 1878, 1888, and is now codified as section 317 of article 93 of the Code of 1904, and provides that all devises of lands, etc., shall be attested and subscribed in the presence of the devisor by two or more credible witnesses or else they shall be utterly void and of none effect; the only change being in the number of witnesses and its application to both real and personal property. The Codes of 1860 and 1888 were adopted in lieu of and as a substitute for all the Public General Laws then in force in the state.

The legal requirements for a valid will to pass real estate in Maryland and the restrictions thereon, now in force, are clearly set out in article 93, sections 314 to 329, of the Code of Public General Laws (1904) and need not be referred to here, except to say that there is nothing in any of their requirements, formalities, or restrictions to the effect that an attesting witness...