Van Meter v. Van Meter

• Decision Date: 15 November 1944
• Docket Number: 16.
• Citation: 39 A.2d 752,183 Md. 614
• Parties: VAN METER v. VAN METER et al.
• Court: Maryland Court of Appeals

39 A.2d 752

183 Md. 614

VAN METER v. VAN METER et al.

No. 16.

Court of Appeals of Maryland

November 15, 1944

Appeal from Orphans' Court, Allegany County; R. Hilary Lancaster and John P. Schellhaus, Judges.

Proceeding by Milton G. Van Meter, executor, against James French Van Meter and another to probate the will of Annie M. Van Meter deceased. From an order of the orphans' court refusing to probate the will, the executor appeals.

Reversed and cause remanded.

William C. Walsh and William S. Jenkins, both of Cumberland for appellant.

Horace P. Whitworth, of Westernport, and F. Brooke Whiting, of Cumberland, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, and HENDERSON, JJ.

DELAPLAINE Judge.

This appeal was brought by Milton G. Van Meter from an order of the Orphans' Court for Allegany County refusing to probate the will of his mother, Annie M. Van Meter, deceased.

The will was written by Russell Saville, resident of Chicago, who formerly resided in Cumberland and served as a director of the George's Creek Coal Company. On July 8, 1936, Mrs. Van Meter came from her home at Cresaptown to the office of the coal company in a bank building in Cumberland for the purpose of executing the will which Saville had prepared at her request. Appellant, 63 years old, a grocer, of Cresaptown, who was named executor, accompanied his mother to the office. After the instrument was read to Mrs. Van Meter and approved by her, she executed it by making her mark on each of the three pages. At the bottom of the first and second pages Saville subscribed his name as 'witness to mark.' On the third page the testatrix subscribed her name and affixed her seal and certified that she also signed each of the two preceding pages 'for identification purposes.' Here again were written the words 'witness to mark' with the signature of Saville.

Then follows the attestation clause, which reads as follows: 'Signed, sealed, published and declared by Annie M. Van Meter, the above named testatrix, as and for her last will and testament, in the presence of us, who, at her request, in her presence, and in the presence of each other have hereunto subscribed our names as witnesses. We further certify that the said testatrix did in like manner execute the two preceding pages hereof for identification purposes, at Cumberland, Maryland, the day and year above written.' Below this clause are the signatures of Carl C. Hetzel and Bancroft Hetzel, witnesses.

The Maryland testamentary statute provides that, except in case of a testator who is outside the area of the United States and is serving with any of the armed forces of the United States, a will is void unless it is in writing and signed by the testator, or by some other person for him in his presence and by his express direction, and is attested and subscribed in the presence of the testator by two or more credible witnesses. Acts of 1943, ch. 799, Code, 1943 Supp., art. 93, sec. 336. The will of Mrs. Van Meter bears on its face every indication of proper execution. Carl C. Hetzel, one of the subscribing witnesses, died before the death of the testatrix. Under our statute, if any witness to a will shall die before its probate, proof by any credible witness of the signature of such deceased witness shall have the same effect upon the probate as if the deceased witness had been present at the probate and had testified that the will was duly executed. Code, art. 93, sec. 368. The Orphans' Court refused to probate the will because Bancroft Hetzel, the surviving witness, swore that, notwithstanding that he subscribed his name to the attestation clause, he actually did not sign his name in Mrs. Van Meter's presence.

The provision of the Maryland statute that a will must be attested and subscribed by the witnesses in the presence of the testator had its origin in the Statute of Frauds, and is substantially the same as the provision enacted in most of the other States. Appeal of Reaver's Ex'rs, 96 Md 735, 54 A. 875, 94 Am.St.Rep. 610. The statute does not require the witnesses to see the testator sign the will. However, if the instrument was signed by the testator out of the presence of one or more of the witnesses, it is essential that he should in some way acknowledge it to them as his act. The attestation should be made at the testator's request, express or implied, but it is not necessary that the testator should verbally declare the instrument to be his will, if his conduct or the instrument itself apprises the witnesses of that fact. Woodstock College v. Hankey, 129 Md. 675, 680, 99 A. 962. A formal attestation clause is not an essential part of a will. The validity of the execution of a will depends, not upon an attestation clause, but upon conformity of the execution with the requirements of the statute, and also the testimony of the subscribing witnesses if they are produced and examined. Barricklow v. Stewart, 163 Ind. 438, 72 N.E. 128; Norton v. Goodwine, 310 Ill. 490, 142 N.E. 171; Thompson on Wills, 2d Edition, sec. 132. The advantage of an attestation clause is found in its evidential weight in showing that the will was properly executed. The rule is well established that an attestation clause reciting facts necessary for the valid execution of a will is prima facie evidence of the due execution of the will, if it bears the genuine signatures of the testator and subscribing witnesses. Woodstock College v. Hankey, 129 Md. 675, 681, 99 A. 962; Bioren v. Nesler, 77 N.J.Eq. 560, 78 A. 201. ...