Mason v. Poulson

• Decision Date: 23 June 1875
• Citation: 43 Md. 161
• Parties: JOHN A. MASON and others v. ALEXANDER W. POULSON, Adm'r c. t. a. of JOHN MASON.
• Court: Maryland Court of Appeals

43 Md. 161

JOHN A. MASON and others v. ALEXANDER W. POULSON, Adm'r c. t. a. of JOHN MASON.

Court of Appeals of Maryland

June 23, 1875

APPEAL from the Superior Court of Baltimore City.

This case was tried in the Court below upon the following issues sent from the Orphans' Court of Baltimore City, at the instance of the appellants, who were the caveators of the will of John Mason, the other issues having been withdrawn:

1st. Is the paper-writing purporting to be the last will and testament of John Mason, deceased, which was admitted to probate on the 30th day of July, 1870, the complete and final last will and testament of said deceased, and was it intended by him to operate as such without any addition, alteration or alterations?

7th. Whether if at the time the paper aforesaid, was written by the said John Mason, he intended to complete the same by subsequently adding anything thereto, he subsequently abandoned such intention, and recognized and adopted the said paper as his last will in its present state?

9th. Whether if said paper was written by said Mason as a schedule or draft, from which he intended to have a more formal will prepared and executed, he was subsequently prevented from carrying such purpose into effect by sickness and death without any change of intention in regard to the provisions of his will contained in said paper?

10th. Whether if said paper was written by said Mason as a schedule or draft from which he intended a more formal will to be prepared and executed, it was complete in all substantial particulars as such schedule or draft, and as he intended at his death that his more formal will should be?

Exception.--At the trial the plaintiffs, (who were the caveators,) offered the following prayers, the first prayer having been withdrawn:

2. That the jury must find for the plaintiffs on the first and seventh issues, unless they believe that the said John Mason intended said paper-writing to be his complete and final last will and testament, without looking to anything further to be done in order to perfect it.

3. Even if the jury find that the said John Mason wrote said paper-writing as a schedule or draft, from which he intended to have a more formal will prepared and executed, and was subsequently prevented by sickness and death from carrying such purpose into effect, if they further find that he intended to complete said schedule or draft by inserting therein the name or names of an executor or executors, and did not abandon said intention, and that he did not intend to execute a will without appointing therein an executor or executors, their verdict ought to be for the plaintiffs on all the issues.

4. That said paper-writing appearing on its face to be imperfect and unsigned, the presumption of law is, that the said John Mason did not intend it to be his complete and final last will and testament, or a complete schedule or draft from which he intended to have a more formal will prepared.

5. That the presumption from said paper is, that he intended to insert therein, or cause to be inserted in a more formal will to be prepared therefrom, the name or names of an executor or of executors.

^[a1]7. That even if the jury believe that said John Mason looked for said paper-writing, and directed other persons to look for it, and on his or their inability to find it, he said it was his intention to have added a legacy to his nephew, but that he was satisfied with it as it was, they are at liberty to find that he meant thereby he was satisfied not to leave such a legacy, and not that he intended to adopt said paper-writing as his will, or as a complete schedule or draft from which he intended to have a more formal will prepared.

8. That the burden of proof is on the defendant to satisfy the jury of such facts as are necessary, under the instructions of the Court, to justify them in rendering a verdict in his favor.

9. That even if the jury find from the evidence, that the paper-writing in question was a memorandum or schedule of a will, the formalities of which John Mason was prevented from completing by sickness and death; yet, unless they further find that as such memorandum or schedule it was complete, and contained all the provisions which he desired to have in his will, they must find for plaintiffs upon the ninth and tenth issues, even though they believe he was prevented by sickness and death from completing the formalities thereof.

And the defendant offered the following prayers:

No. 1 A. That the jury can only consider the testimony of the witnesses, Mrs. Baptist, George W. Baptist, Jabez Mason and Watson, in regard to the statements made to them respectively by the defendant Poulson, of conversations which the said Poulson had with the deceased, John Mason, and of declarations of the said Mason to the said Poulson as rebutting testimony, to discredit the testimony of said Poulson, and not as testimony-in-chief, to prove such conversations and declarations of said Mason.

1. That if the jury find that the paper-writing given in evidence was entirely written by said John Mason in his own hand-writing, and was carefully kept by him in a portfolio in his private drawer, where it was found at the time of his death; and shall also find that all the property mentioned in said paper-writing is leasehold or other personal property and that said Mason had no real estate at the time it was written, or at the time of his death; and shall further believe that said John Mason's testamentary intent was finally expressed in the said paper-writing; that when it was written, he was of sound and disposing mind, and capable of making a valid deed or contract, and so continued up to the time of his death, then the jury must find for the defendant on the first and seventh issues.

2. That if the jury find that the paper-writing given in evidence was entirely written by said John Mason, in his own hand-writing, and was carefully kept by him in a portfolio in his private drawer, where it was found at the time of his death; and shall also find that all the property mentioned in said paper-writing is leasehold or other personal property, and that said Mason had no real estate at the time it was written, or at the time of his death; and shall further find that the said Mason, when he was of sound and disposing mind, and capable of making a valid deed or contract, intended it to operate as his will in its present form, and so declared, and that said intention continued until his death, then the jury must find for the defendant on the first and seventh issues.

3. That if the jury find the facts set forth in defendant's prayer 1, and shall believe from the evidence, that said paper-writing was written by said Mason as a schedule or draft, from which he intended to have a more formal will prepared and executed; and shall further find that said Mason was subsequently prevented from carrying such purpose into effect by his sickness and death, then the said paper-writing is a good and valid will of personal property, and the jury must find for the defendant on the ninth issue.

4. That if the jury should find the facts set forth in the defendant's first and third prayers, then they must find for the defendant on the ninth and tenth issues, although they should also believe that said Mason had at one time a desire to make some additional provisions; provided they shall also find that he was undetermined in his mind as to the extent of such provisions, or the manner in which such desire should be carried out.

5. That by the alterations or additions referred to in the first and seventh issues, is not meant alterations or additions in the mere form of the instrument, but such alterations or additions as would alter or change the said Mason's testamentary intent, as contained in the paper-writing offered in evidence.

The plaintiffs objected specially to the defendant's first, second, third, fourth and fifth prayers, because they left questions of law to the jury, as well as upon other grounds.

The Court (DOBBIN, J.,) granted the plaintiffs' third, seventh and eighth prayers, and refused their second and fourth prayers as offered, but modified their second prayer by adding thereto the words: "whereby the disposition of his property would have been affected or changed," and as modified granted the same; and also modified their fourth prayer by adding thereto the words following: "But the said presumption is rebuttable, and the jury must determine from all the facts in the case, whether the said paperwriting, although imperfect and unsigned in the beginning, was not finally adopted by him as a sufficient expression of his intent with reference to the disposition of his property;" and with this modification granted the prayer. The fifth and ninth prayers were refused. The Court granted all the defendant's prayers.

The plaintiffs excepted, and the verdict being against them, they took this appeal.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON and ROBINSON, J.

R. F. Brent and John H. Thomas, for the appellants.

The appellants' second prayer was a correct exposition of the law applicable to the case, and ought to have been granted as offered. Plater vs. Groome, 3 Md., 143; Harris vs. Pue, 39 Md., 548.

The modification of said prayer, added by the Court, even if proper, if the prayer had applied to the ninth and tenth issues, was improper in reference to a prayer confined to the first and seventh issues.

Under the modification of the Court, the jury were bound to find for the defendant, although they may have believed that the alleged testator did not intend the paper in question to operate as his will or a schedule thereof, without an addition thereto appointing an executor. This...