Sewell v. Slingluff

• Decision Date: 09 February 1882
• Citation: 57 Md. 537
• Parties: CAROLINE D. SEWELL v. RICHARD S. SLINGLUFF, by his next friend, F. C. SLINGLUFF, and FIELDER C. SLINGLUFF.
• Court: Maryland Court of Appeals

57 Md. 537

CAROLINE D. SEWELL v. RICHARD S. SLINGLUFF, by his next friend, F. C. SLINGLUFF, and FIELDER C. SLINGLUFF.

Court of Appeals of Maryland

February 9, 1882

APPEAL from the Circuit Court of Baltimore City.

The case is stated in the opinion of the Court.

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

Edward Otis Hinkley, and I. Nevett Steele for the appellant.

In reference to a will absolute on its face and duly executed it is not competent to show by parol evidence, that it was the intention of the testator, that the will should cease to operate or not take effect, if a certain state of circumstances existed at his death, or that it should take effect only if such a state of circumstances did then exist. The utmost extent to which the cases have gone is, that if a paper be written not animo testandi, but as a jest or a sham, with no intention that it should in any event be a will, then parol evidence of such a state of facts may be given; but even then it is to be received with great caution. But where a will, absolute on its face, is seriously and formally executed, animo testandi, no case can be found which holds--and we submit it would be utterly inconsistent with principle so to hold--that such a will may be set aside by parol proof of an outside intention of the testator that the will should be conditional, and should have no effect, at his death, if a certain contingency should then have occurred. 1 Redfield on Wills, 171, 172 Lester vs. Smith, 3 Swabey & Tristam, 282.

As to the admissibility of evidence of the declarations of the testator, the Maryland cases show that the rule that they are inadmissible to revoke, impeach, or invalidate a will, in whole or in part, has been maintained most strictly.

In the following cases, declarations have been held inadmissible: In Massey vs. Massey, 4 H. & J., 145--that testator believed he had destroyed his will. In Tilghman vs. Stewart, 4 H. & J., 165--if complete, the will is full evidence in itself of the intention. In Whitman vs. Goodhand, 25 Md., 106-- that he had concluded to die without will.

In Diffenderffer vs. Griffith, 50 Md., 480--to prove fraud and undue influence--1st, because hearsay; 2nd, because inconsistent with the statute. In Stannard vs. Barnum, 51 Md., 451, &c.--held dangerous and without precedent, to show that testator did not know that he owned certain property. In Fouke vs. Kemp, 5 H. & J., 138--to show that children included step-children. In Corporation vs. Hammond, 1 H. & J., 604--the true construction of the will must depend alone upon the will itself. In Mitchell vs. Mitchell, 6 Md., 233--held extrinsic evidence is only admissible to explain latent ambiguities. Same point in Walston vs. White, 5 Md., 297. In Taggart vs. Bouldin, 10 Md., 117--anything contrary to plain import of will, inadmissible.

The two cases of-- Warner vs. Miltenberger, 21 Md., 264, and Hawman vs. Thomas, 44 Md., 30, are very clear. That extrinsic evidence is inadmissible to show that testator meant something different from what his language imports. Redfield on Wills, 501, 539, 544, 555, 558, 568, 571, g; 572, 621, g; 664, g.

Wigram's enumeration of instances in which parol testimony is inadmissible, cited also by Redfield, 504; Jackson vs. Kniffen, 2 Johnson, 31 (N. Y.)--and notes in American Decisions. Shailer vs. Bumstead, 99 Mass., 112; Wotten vs. Redd, 12 Gratt., 196.

Instructions to draftsman of a will are inadmissible. Negro C sar vs. Chew, 7 G. & J., 127; Alder vs. Beall, 11 G. & J., 125; Gaither vs. Gaither, 3 Md. Ch., 165.

Independently of the Statute of Frauds, parol proof is not admissible to vary, add to, or contradict the terms of a deed or written agreement, except to show fraud. Wesley vs. Thomas, 6 H. & J., 27; Watkins vs. Stockett, 6 H. & J., 435.

Parol evidence of declarations of a grantor, made after a conveyance was executed, are not evidence in any way to affect the validity of the deed. Hurn vs. Soper, 6 H. & J., 281.

If parol evidence be admissible in this case at all, to set aside the will-- which is confidently denied--it must be cogent and conclusive; and we submit that the evidence in the record is not of that character. Mr. Slingluff is the principal, and indeed, we may say the only witness as to the material facts of the case; and he is interested and a party to the suit, and his testimony is mainly inferential and not direct. Much more stringent proof should be required to justify the decree of the Court below. The complainants have failed to prove their case. Lester vs. Smith, 3 Swabey & Tristam, 282.

The case of Gaither vs. Gaither, 3 Md. Ch., 158, shows the only ground upon which the complainants could succeed; but in this case, as in that, there is no sufficient evidence to establish either fraud or mistake; here is no promise, no knowledge even. And see Semmes vs. Worthington, 38 Md., 298. In Vreeland vs. Williams, 32 New Jersey Eq., (5 Stewart,) 734, and same case at page 135, the result of the authorities is stated thus: "Any declaration of intention on the part of the testator different from that expressed in his will, is incompetent as evidence, unless it was communicated to the legatee, assented to by him, and such assent acted upon by the testator." A large number of cases is cited by the counsel and by the reporter in that case. All show either a promise of the legatee, or some fraud attempted by him.

The defendant has not, under the circumstances of the case, been guilty of laches, but acted promptly after being informed of her legal rights. Pairo vs. Vickery, 37 Md., 467; Lazier vs. Nat. Union Bank, 52 Md., 78; Farmers' & Mechanics' Bank vs. Wayman, 5 Gill, 336.

Additional cases:--There must be a promise by devisee. Collins vs. Hope, 20 Ohio, 492; Jones vs. Bodley, 3 Ch. App., 362; Rowbotham vs. Dunnett, 8 Ch. Div., 430, 480; Tee vs. Ferris, 2 Kay & Johnson, 357; Walgrave vs. Tebbs, Ib., 313; Lomax vs. Ripley, 3 Sm. & Giff., 48; McCormick vs. Grogan, L. R., 4 H. L., 82; Bedilian vs. Seaton, 3 Wallace, Jr., 286. As to Escrow:-- Sheppard's Touchstone, 58; 13 Eng. Rep., (Moak's Notes,) 786. As to parol evidence:-- Reeves vs. Reeves, 1 Devereux's Eq., 389--Declaration as to future child inadmissible; 1 Murphy's Eq., N. C., 447; Magee vs. McNeal, 41 Miss., 17; Wagner vs. McDonald, 2 H. & J., 346; Waltige vs. Waltige, 55 Pa. State, (5 P. F. Smith,) 242; 2 Bradford's Surrogate, 208--Conditional will; Martin vs. Duffey, 4 Philadelphia, 76--Parol testimony inadmissible where Statute of Frauds requires writing; Abercrombie vs. Abercrombie, 27 Ala., 495; Mott vs. Reichtmeyers, 57 N. Y., 59; Skipwith vs. Cabell, 19 Grattan, 759-- Erroneous advice about a sequestration Act of the late Confederate States.

John P. Poe, and S. Teackle Wallis, for the appellees.

1. That parol evidence is admissible to show that Mrs. Ella Slingluff's will was intended to take effect and to be used as a will only in the event of her death without issue; and that it was her wish and direction that it was to be wholly inoperative in case she died leaving issue.

2. That the parol testimony in this case fully shows that such was her wish, intention and direction; and that, consequently, the paper sought to be set up as her will cannot be accepted or allowed to be probated as such.

3. That whatever rights Mrs. Sewell ever had, if any, to claim her daughter's property, under such supposed will, have been lost by deliberate, intelligent and intentional acquiescence, with full knowledge of all facts; and that by such acquiescence, the conduct of Mr. Slingluff has been so influenced by her as to create a clear equitable estoppel against her now to set up any claim under such pretended will.

On the first point the appellees referred to the following authorities:-- Hawman vs. Thomas, 44 Md., 41-46; Harris vs. Pue, 39 Md., 548; Leppoc vs. The Union Bank, 32 Md., 144-146; Stanton vs. Miller, 65 Barb., 58; Pym vs. Campbell, 6 Ellis & Black, 370; Wallis vs. Littell, 11 C. B., N. S., 369; Davis vs. Jones, 17 C. B., N. S., 625; Beall vs. Poole & Hunt, 27 Md., 654; Stephen's Digest of Evidence, 88, 89, 90; 2 Taylor on Evidence, sec. 1038, and notes; Redfield on Wills, ch. 6, sec. 17, p. 9; 2 Wharton on Evidence, 161, sec. 927; Grierson vs. Mason, 60 N. Y., 394-397; Mason, et al. vs. Poulson, Adm'r, 40 Md., 366; Lester vs. Smith, 3 Swabey & Tristam, 282.

2. The bill alleges that the request, understanding and direction of Mrs. Slingluff were that the paper was not to be used as a will in case she died leaving issue. It also alleges that Mrs. Sewell knew of and assented to this understanding, purpose and direction. In her answer she denies both of these allegations.

The testimony in our view clearly sustains them both, but the case of the appellees does not depend upon both being proved. Proof of the former averment is all that is necessary to entitle the appellees to an affirmance of the decree, for it is the fact that the will was not to be used as such in the event of Mrs. Slingluff's death, without leaving issue, and not the knowledge of that fact by Mrs. Sewell, that must control the decision of the case. This averment of the bill is abundantly established. It is intrinsically probable. It is proved by the testimony. It is disproved by nobody.

Mr. Slingluff's competency as a witness is denied by the counsel for the appellant, but the question is set at rest by the decision in Graves vs. Spedden, 46 Md., 538, 540. Nor does the case fall under any of the exceptions in the statute. Revised Code, Art. 70, secs. 1 and 2.

3. The appellant is equitably estopped from asserting any rights under this supposed will. For six years she accepted and acted on what she well knew was and must have been...