Stirling v. Stirling

• Decision Date: 24 June 1885
• Parties: STIRLING et al. v. STIRLING.
• Court: Maryland Court of Appeals

21 A. 273

64 Md. 138

STIRLING et al.

v. STIRLING.¹

Court of Appeals of Maryland.

June 24, 1885.

Appeal from superior court of Baltimore city.

Argued before Alvey, C. J., and Stone, Miller, Robinson, and Irving, JJ.

Bernard Carter and S. Teackle Wallis, for appellants.

Charles Marshall, Arthur W. Machen, and I. Nevett Steele, for appellee.

STONE, J. This is a case of a caveat to a will. There were three issues sent to the court of law for trial: (1) Related to the execution of the will. (2) Was the testatrix of sound and disposing mind? (3) Was the will procured by undue influence?

The first issue is in these words: "Was the paper writing bearing date January 21, 1878, and purporting to be the last will and testament of Elizabeth Anderson, executed by her, or by some person in her presence, and by her express direction, in the presence of three or four credible witnesses, as, and for, her last will and testament?" By reference to the first issue, it will be seen that the only question it presented for the determination of the jury was whether the paper, dated January 21, 1878, was executed by Elizabeth Anderson, as her last will and testament, in the presence of three or four credible witnesses. This issue is in fact an immaterial one, and the finding of a jury upon it, either way, would not affect the validity of the will. Neither the statute of frauds nor that of Maryland copied from it makes the validity of a will dependent upon the testator's signing it in the presence of witnesses. The testator may sign the will before the witnesses are called in. But, by both statutes, it is necessary that the three or four credible witnesses, whose attestation is necessary for the validity of a will of land, (as this is,) should sign their names in the presence of the testator. 1 Jarm. Wills, 213. If this issue had been found in favor of the plaintiffs by the jury, their finding would have been substantially as follows: "The paper writing, bearing date January 21, 1878, and purporting to be the last will and testament of Elizabeth Anderson, was not executed by her, or by some person in her presence, and by her express direction, in the presence of three or four credible witnesses, as and for her last will and testament." This finding would not necessarily invalidate the instrument. It would be entirely consistent with its valid execution. She. the testatrix, might have signed the paper just as well out of, as in, the presence of the witnesses. So, on the other hand, if the finding was for the defendant on that issue, it would be substantially the same with the word "not" stricken out. The jury would find that Elizabeth Anderson did sign the paper in the presence of the witnesses, but the fact, essential to the validity of a will of land, (and we treat this as such a will throughout,) that the witnesses signed in her presence, would not be decided. The special exception taken by the plaintiffs to the granting of the instruction is that it does not require the jury to find that the subscribing witnesses signed their names as witnesses to the will of Mrs. Anderson, either at her request, express or implied, or with her knowledge. But no such question can be properly raised under the first issue in this case. If the plaintiffs desired to present that point, they should have done so by an appropriate issue. Such a question could have been, perhaps, properly raised under an issue like the first issue in Brewer v. Barrett, 58 Md. 587. In that case, the issue did raise the question of the proper attestation of the will. So, the question here sought to be raised by the plaintiffs was the proper attestation of the will. They contend that the witnesses must attest the will at the request, express or implied, of the testatrix, or with her knowledge. Without deciding the question so raised by the special exception, it is sufficient for us to say that, before a reversal the court must be satisfied that there was error in the instruction, and that the plaintiffs were thereby injured. As we consider the issue itself an immaterial one, and as the question sought to be raised by the plaintiffs cannot be properly raised under such an issue as the first, we must affirm the ruling.

The plaintiffs' third prayer was refused, and the fifth granted. The only material difference between the rejected and granted prayer is that the rejected one, after reciting the fact that the will was drawn by the defendant, and that he was largely benefited by its provisions, goes on to say: "And the jury are instructed that such facts are always suspicious circumstances of more or less weight, according to the circumstances of each case." This latter clause was left out of the granted prayer. The plaintiffs seem to have fallen into the not uncommon error of supposing that because an expression may be used in an opinion of this court, therefore, it is always proper to incorporate it in an instruction to a jury in a similar case. This is not true, and such a practice would, in many cases, mislead the jury, and work injustice. In the case of McCready v. Garrett, 61 Md. xv., (decided at the October term, 1883, but unreported,) where a part of an opinion in another case was incorporated in an instruction, we said: "The expression seems to be taken from the opinion of the court in Gaither v. Blowers, 11 Md. 536, and while there is no objection to the expression in that opinion, connected as it there is with other expressions announcing the law of that case, yet it does not follow that a single line taken from that or any other opinion, and separated from the context, and put in an instruction, may not make it erroneous and misleading." The jury in a case of a caveat to a will are entitled to know the facts, who wrote the will, and who were the legatees under it; but, if the draughtsman and the principal beneficiary turn out to be one and the same person, it is not the business of the court to stigmatize that as a "suspicious circumstance." It is for the jury to determine whether it is, in the particular case they are trying, a suspicious circumstance or not. Besides, it is not true that it is always a suspicious circumstance against the validity of a will that the writer is largely benefited by it. In the case of Griffith v. Diffenderffer, 50 Md. 466, all that the opinion said was that such facts "are nothing more than a suspicious circumstance." There was therefore no error in the rejection of the plaintiff's third prayer.

The court rejected the fourth prayer of the plaintiffs, and granted the fourth prayer of the defendant. These prayers are...