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gagee, and he should become a plaintiff in trover, he might, in such case, justly fall within the above rule of damages as being a special owner, if for no other reason. In Peck v. Inslow, 8 Dana, 192, the court was doubtful as to whether the mortgagee might not recover full value against his morto gagor at law, subject to restriction by a court of equity. So in Barry v. Bennett, 7 Met. 354, the mortgagee was allowed to recover full value, but the question of damages received little attention. In Luse v. Jones, 39 N. J. L. 707, the mortgagor was decided to be a special owner, and for that reason was allowed to recover full value against a stranger: See Jones on Chat. Mort., sec. 448.
What TITLE NECESSARY IN PLAINTIFF, to enable him to maintain trover: Brazier v. Ansley, 51 Am. Dec. 408, and note; notes to Grubb v. Guilford, 28 Id. 708; and Hostler's Adn'r v. Skull, 1 Id. 585 et seq. The principal case is cited to the effect that defendant in trover can not show, in bar of the action, title outstanding in a third party at the time the action was commenced: Wilson v. Hinsley, 13 Md. 68; Rosenfield v. Express Co., 1 Wood, 135.
MEASURE OF DAMAGES IN TROVER, GENERAL RULE FOR: See Lee Natthews, 44 Am. Dec. 498, collecting prior cases in this series: Clark v. Whitaker, 48 Id. 160; Zachary v. Pace, 47 Id. 744; note to Baker v. Wheeler, 24 Id. 71. The principal case is cited in Cullen v. O'Hara, 4 Mich. 137, to the effect that a bailee may recover in trover the whole value of the property bailed, when it is converted by a stranger.
NON-JOINDER OF CO-TENANTS AS PLAINTIFFS must be taken advantage of by plea in abatement: See Lothrop v. Arnold, 43 Am. Dec. 256, and note.
TENANT IN COMMON MAY RECOVER in trespass or trover his aliquot share in a chattel unless a plea in abatement is interposed. The principal case is cited to this effect in Dailey v. Grimes, 27 Md. 451. See Ilillhouse v. Mix, 1 Am. Dec. 41; McFadden v. Haley, 1 Id. 653. In McFarland v. Stone, 44 Id. 325, it is said that a tenant in common may recover the whole estate in eject. ment against a stranger.
CONVERSION, WHAT CONSTITUTES: See Ragsdale v. Williams, 49 Am. Dec. 406, and note citing prior cases in this series; Scott v. Perkins, 48 Id. 470; Clark v. IV hilaker, Id. 160. The principal case is cited as defining tortious conversion, in Thomas v. Sternheim, 29 Md. 272.
INTENT, INFLUENCE OF, IN AWARDING EXEMPLARY DAMAGES: See note to Merrills v. Tariff Man. Co., 27 Am. Dec. 686.
RECORD OF PROCEEDINGS IN Action must be produced as evidence of the fact of the trial thereof, and of the matters in issue therein. The principal case is cited to this effect in Inglehart v. Jernegan, 16 Ill. 519. In Maxwell v. Ilarrison, ante, p. 385, it is held that the record need not be produced to prove what a witness swore at a former trial, such evidence being dehors the record.
BOOFTER V. ROGERS, ADM'R.
19 GILL, 44.) TO MAKE PAPER LAST WILL AND TESTAMENT OF DECEDENT at the time it
is written, it must appear that such person possessed the animus testandi
at that time. PAPER MAY BE MADE LAST WILL AND TESTAMENT BY ADOPTION, although
not such at the time it is written,
PAPER INTENDED AS MEMORANDUM MAY BE MADE WILL by act of God,
happening when the scrivener has not completed the formal will from the memorandum, the intention of the testator having continued until the act of God prevented the execution of the instrument. Nor is an immediate or sudden death necessary if the jury are satisfied from the evidence that the intention was unchanged respecting the provisions of
the will. INSTRUCTION IS NOT NECESSARILY CORRECT because given in same words
used by court of last resort in a case wherein they acted both as judge
and jury. INSTRUCTIONS REMOVING FROM CONSIDERATION OF JURY sanity of alleged
testator, where there is testimony upon this point, are erroneous. INSTRUCTIONS SHOULD INFORM JURY OF WHAT EVIDENCE MUST SATISFY
THEM. INSTRUCTIONS SHOULD INFORM JURY WHAT THEY ARE TO FIND FROM TES.
TIMONY upon a certain point, in order to find generally for either party. A PETITION was filed by appellant in the orphans' court for a citation against Isaac Rogers, the appellee, as administrator of Joseph M. Rogers, alleging upon information and belief that said Joseph left a will in which petitioner was a legatee, and therefore praying that said Isaac be required to produce such will if in his possession, and if not, to give whatever information he might have concerning it or any other paper of like purport. Rogers, the appellee, filed an answer to this petition, alleging Joseph M. Rogers to have died intestate, filing, however, in addition, and as a part of his answer, a paper marked "JR,” which he stated he had received from Walton Gray, an attorney at law, shortly after the death of said Joseph, but which, although bearing some similarity in the matter of handwriting to the handwriting of said Joseph, he nevertheless did not consider to be the will of said Joseph. The paper “ JR” was an informal, unsigned memorandum of legacies and devises, and among others of a legacy of five thousand dollars to Boofter, and two thousand dollars to Boofter's son. At this stage of the proceedings, the following issues were submitted to the Baltimore county court for trial, upon the application of the appellant: 1. Was the decedent Joseph M. Rogers intestate? 2. If said Joseph M. Rogers was testate, what were the contents of his will? Plaintiff proved at this trial that the decedent had delivered the paper to Walton Gray, the attorney at law, instructing him to prepare therefrom a will; that the paper was in the handwriting of decedent; that decedent called several times at the office of said Walton Gray to execute the will, but said Gray did not have it ready. The last time decedent called upon said Gray, he replied to the inquiry of Gray that he had not
changed his mind as to the disposal of his property; that he intended to leave home temporarily, and would execute the will when he returned. During this absence from his home, decedent died, and the paper remained in the possession of Gray until he delivered it to the defendant on demand. There was further evidence tending to show decedent's intentions as connected with the paper “JR;" such as decedent's remarking to his partner, when writing what was at least very like the memorandum in question, “I am writing my will; do you wish any arrangement to be made in my will in regard to the business of the firm ?" and such as the decedent's referring to the intimacy existing between plaintiff and himself, and his having " made him snug," and his intending that plaintiff should be repaid the money plaintiff had saved for him by friendly offices. There was evidence on both sides respectively supporting and attacking the sanity of decedent. Defendant introduced evidence of a declaration of decedent to the effect that he wished his father to have the disposal of his property, and evidence that after some conversation with Gray in the counting-room, decedent had declared to his book-keeper, “I wish you to take notice that I will not sign that paper;" and that he had declared, when importuned during his last illness, that it was unnecessary to make a will, as all his property would go to his sister in any event. Plaintiff and defendant both prayed the court to give certuin instructions to the jury, but the court refused all the plaintiff's instructions and granted all the defendant's. The instructions prayed for by the plaintiff are unnecessary for an understanding of this case. The instructions prayed for by the defendant were as follows: 1. That although they believe the paper “JR” to have been prepared and delivered to Gray by decedent with instructions to prepare therefrom decedent's will, nevertheless it is not decedent's will, unless they further find that decedent intended it to operate as his will in its then state and condition. 2. That if they find said paper to be decedent's will, they must be convinced that decedent wrote it animo testandi, and intended it to be his will as it stood, without any act further per. fecting it. 3. That if they believe that decedent declared in his last illness and after his conversations with Gray, that it was unnecessary for him to make a will, that his property would go to his sister, and that he therefore would not make a will, and if they believe that decedent when making these declarations un. derstood their purport, they must find for defendant on both issues. 4. That whatever else they may be lieve, if they believe
that said paper was placed by decedent in Gray's hands as instructions to prepare a will to be thereafter executed by decedent, such paper is not decedent's will. Plaintiff excepted to the ruling of the court rejecting his own prayers for instruction and granting defendant's, and the verdict being for defendant, appealed.
William B. Perine, and Richardson, allorney general, for appellant.
Nelson and Yellott, for appellee.
By Court, MAGRUDER, J. The issues in this case certainly are not those which are usually sent from the orphans' court, for trial by jury, in cases of this description; and are so framed, that a verdict in favor of the petitioner, which was sometimes asked, would have been of no advantage to the appellants. They do not, indeed, refer to the paper “ JR.” No other paper, however, was produced; no attempt was made to prove that any other, which could be regarded as the last will and testament of the deceased, was in existence.
In order to make a paper the last will and testament of a deceased person, at the time it is written, it must appear that such person possessed the animus testandi, at that time. A paper, although not a last will and testament at the time it is written, may be made such afterwards, by adoption. A paper, though intended merely as instructions, or a memorandum to enable the scrivener to prepare a will, if the more formal act be left unfinished, may be made a will, by any act which the law pronounces to be the act of God: 2 Ecc. 144; 6 Id. 19; Allen v. Manning, 2 Add. 490; 5 Ecc. 188. There must, however, be a continuance of the intention of the deceased, down to the time when the act of God prevented the execution of the formal instrument. An immediate, sudden death is not required, if according to the proof, the jury are satisfied, that there was no change of intention, in regard to the provisions of the will.
In the case of Tilghman v. Steuart, 4 Har. & J. 156, and Brown v. Tilden, 5 Id. 371, the court had not the aid of a jury, and was to settle the facts as well as the law. In pronouncing their judgment they necessarily decided questions, the decision of which, in the trial of issues by a jury, belongs exclusively to the latter. An instruction given to a jury is not necessarily correct, because it is given in the very words which the court of last resort used in a case wherein they acted both as judge and jury.
With this understanding of the law, we proceed to notice the prayers of the appellant, in the course of the trial of these issues.
The court was correct in refusing to give the instructions asked by him, because all of these instructions take from the jury the inquiry, whether the deceased, at the time of preparing the paper, or at any other time, to which the prayers refer, was of sound and disposing mind and memory, and capable of making a valid contract. There certainly was testimony going to question his sanity, and of the weight to be given to that testimony, the jury were to be the judges. So if the design of any of the prayers was to obtain an instruction, that the paper, though not originally intended as a will, was afterwards made so by adoption, or because without any change of purpose, he was prevented by death from executing a more formal instrument, the prayer ought to have been so framed as to inform the jury of what the evidence must satisfy them, in order to warrant a verdict, establishing " JR," or any other paper, as the will of the deceased. It does not appear that in this case any attempt was made to satisfy the jury, that it was obtained by fraud, or the exercise of undue influence.
It appears to the court, that a similar objection is to be made to the prayers of the appellee. If it be a question, made so by the proof, whether the paper “ JR” became, by adoption afterwards, the will of the deceased, or whether it became his will by the act of God, as before stated, the instruction should have informed the jury, what they were to find from the testi mony, in regard to it, in order to obtain a verdict, that such paper was not what the petitioner alleged it to be. If, from the proof, the jury could find, that it became at any time such last will and testament, there are defects in the prayers of the appellee, because of which the instructions of the court must be decided to be erroneous. A paper, though intended merely as instructions, or a memorandum to enable the scrivener to prepare the will, is to be admitted to probate, if the more formal will be left unfinished, by reason of any act which the law pronounces to be the act of God: Masterman v. Maberly, 2 Hagg. Ecc. 247; 6 Ecc. 330.
There must, however, be a continuance of the intention down to the time when the act of God intervened, and prevented the deceased from executing his purpose. When there is testimony to authorize a belief that there was no change of his intention, this question should be left to the jury.
To the first prayer it is a fatal objection, that according to it,