Weems v. Weems

• Decision Date: 21 January 1863
• Citation: 19 Md. 334
• Parties: GEORGE W. WEEMS v. GEORGE WEEMS AND MARGARET JONES.
• Court: Maryland Court of Appeals

19 Md. 334

GEORGE W. WEEMS v. GEORGE WEEMS AND MARGARET JONES.

Court of Appeals of Maryland.

January 21, 1863

At law, the right of a husband to release a legacy bequeathed to his wife, so as to bar her interest in it, is indisputable.

This power of a husband over money to which the wife might become entitled by bequest, does not appear to have been restricted in this State by any Legislative Act, until it was suspended by 1 Code, Art. 45, sec. 2, which provides that the property bequeathed to the wife shall be held for her separate use.

The provisions of the Act of 1853, ch, 245, operated to protect the property of a wife that acquired, from the creditors of the husband, but did not effect the husband's marital rights or power over it.

Where the probate of a will is resisted by caveat, a husband releasing to the executor a legacy to his wife under said will, is thereby rendered a competent witness for the executor.

In general, the mere naked opinions of persons not occupying the position of professional medical attendants, as to the testamentary capacity of a testator whose will may be controverted, are not admissible. But where the witness was a brother of the testator, engaged with him in conducting a joint business, the intimacy of the witness with the testator having continued during the life of the latter, with the consequent opportunities for judging of the testator's mind, and of changes in its condition, it can scarcely be said that his opinion, being the result of actual knowledge was not admissible.

APPEAL from the Orphans' Court of Baltimore city.

This is an appeal from an order of the Orphans' Court of Baltimore city, passed on the 29th of October 1860 sustaining a caveat to the will of Gustavus Weems deceased, and refusing to admit said will to probate. The case is stated in the opinion of this Court. The following is, in substance, the testimony taken on both sides, as to the physical and mental condition of the testator for some time previous to and at the execution of the will referred to in the opinion of this Court, " reduced to writing in the presence of the attorneys for the caveators and for the executor, and at their request," and signed by the respective witnesses:

Thomas L. Hughes, one of the subscribing witnesses to the will, called for examination by the caveators, testified: That on going into the chamber of the testator, about half an hour before the will was executed, he did not know the witness, but after some time recognized and spoke to him; that the will was read to the deceased in the presence of the witness, by E. G. Leitch, who, when he read that portion of the will where there was a disposition of $700 to Mrs. M. L. Weems, asked if that was what he wanted, when the testator replied that it was; that Leitch then kept on reading the will, and when he had finished it, asked the testator if that was " right," or " what he wanted," and the testator replied that it was; that the testator was very weak, and when he executed the will, had to be held or propped up in bed; that the witness was not " judge enough to know what was the mental condition of the testator," but that he appeared to him to know what he was doing; that he had no conversation with the testator until he was about leaving, when he shook hands with him and said " " good-bye, Mr. Weems," when he replied, " good-bye, Mr. Hughes; " that he had known the testator about three years; that in regard to the statement made by Leitch, (that from ten to fifteen minutes before the execution of the will, he asked the testator, in order to test his recollection, what disposition he had made of his property, and that the testator made a reply which satisfied him, Leitch, that the testator's recollection had failed him,) that the circumstances referred to did not take place in the presence of the witness, and that he thought Leitch was mistaken as to their having taken place ten or fifteen minutes before the execution of the will; that the witness was requested to attend at the execution of the will by Samuel Taneyhill, one of the subscribing witnesses; that neither the witness nor any other person, when he was present, was asked by the testator to sign his will as witness; that Mason Weems, George Weems, Samuel Taneyhill and E. G. Leitch were present; and that the witness was under the impression that he left the room before Leitch.

Edward G. Leitch, one of the subscribing witnesses to the will, proved: That he had known the testator intimately, as a friend and social acquaintance, for about twenty years before the making of the will; that the only property held by him at the time of his death, as far as the witness knew, was personal property, being a general interest with his brothers in the steamboat business; that he received the instructions of the testator for his will about ten or eleven o'clock on the day on which it was made, and that the instructions were, that he gave to his brother Mason Weems' wife $700, and the balance of all his estate to his brother George; that ten or fifteen minutes before the execution of the will, the witness asked the testator, in order to test his recollection, what disposition he had made of his property, when he replied that he had given his brother Mason $500, George $500, and Theodore $500, which satisfied the witness that his recollection had failed; that at the time of making the latter statement, in the opinion of the witness, he was not competent to make a valid deed or contract; that when he gave the instructions for making his will, he was perfectly competent to make a valid deed or contract, but that at the time of the execution of the will, between four and five o'clock in the evening of the same day, he was not so competent; that after making the inquiry as before stated, and before the execution of the will, he asked the testator what he was about doing, when he replied that he was about to sign his will, and asked witness where to make his mark; that he had no further conversation with the testator, except to bid him farewell, when leaving; that he visited the testator to advise him to make a disposition of his effects, at the instance of George W. Weems, his brother, at whose house he had been staying during his last sickness.

Henry M. Wilson, a witness for the caveators, testified: That he attended the testator as his physician during his last illness, and visited him twice daily, from the 29th of June to 6th of July 1859, except on the 2nd of July, when he saw him three times; that his disease was an obscure affection of the stomach, and his condition such as to preclude all hopes of his recovery; that as his disease increased in severity, his strength decreased; that his mind seemed to be torpid in its action; that witness saw him on Sunday, at ten or half-past ten o'clock, in consultation with Dr. Buckler, when he was exceedingly prostrated, also at half-past three, and again at about seven o'clock; that on the last occasion, he was called on to witness the will of the testator, but upon a conversation with him, considered his mental condition such as to unfit him for making a will, and declined to be one of the witnesses thereto; and that in the opinion of the witness he was not then capable of executing a valid deed or contract.

Zilpah Hosking testified: That she attended upon the testator for one month previous to his death, as a nurse; that on the Saturday before his death, he seemed to be perfectly prostrated, and from that time grew worse and worse; that his mind seemed to grow weaker as his body grew weaker; that he was often in a listless state; that on the morning of the Sunday on which the will was executed, his mind seemed to wander, that is, the witness would ask him a question, and he would answer some time after, and then again would answer the same question differently, and that he would frequently ask where his brother Theodore was, though told each time that he had gone down the river on Saturday, which the testator, when well and in his right mind, knew was generally the case on Saturday; that witness did not think that on Sunday the testator's mental faculties were in a fit state to make a will; that the testator seemed to be aware that his memory was giving away, for he used to call upon the witness to observe particularly, saying that his sufferings were so great that he could not remember so as to tell the doctors his symptoms.

Mason L. Weems being called on the part of the executor, and objected to as incompetent by the caveator, the following release was filed:

" I, Mason L. Weems, do hereby assign and release unto my brother, George W. Weems, the legacy of seven hundred dollars, bequeathed unto my wife, Matilda, by my brother, Gustavus Weems, in and by his last will and testament, made the 3rd of July 1859. Witness my hand and seal, this 29th of November 1859.

M. L. WEEMS, (Seal.)

Witness present-- B. M. Heighe. "

The said witness being sworn, (his competency being still objected to by the caveator, notwithstanding the release,) testified: That he saw his brother, the testator, on the Saturday previous to his death, and was with him from early that evening until three o'clock of Sunday morning, but did not discover that his mind was in the least impaired though he was growing weaker and weaker in body; that when he left him, he called his brother George, and believes he went to him; that Mrs. Hosking was asleep in the adjoining room until he left; that witness returned to the house about nine o'clock on Sunday morning, but perceived no change in the mind of the testator, although he was growing weaker in body; that witness was present when Leitch came in, and it was suggested that he, Leitch, should make known to the...