the paper "JR" could not be pronounced by the jury to be the will of the deceased, although the deceased never changed his purpose of so disposing of his property, and was prevented from executing a more formal instrument by his death. The second declares that it is not to be considered his will, unless it was written by said Rogers, animo testandi, and intended, as it stood, to be his last will and testament, which, for reasons already given, is erroneous. The third would take from the jury the power of deciding quo animo the declarations were made. They might have been intended to escape from importunity. According to the fourth, the appellee would have been entitled to a verdict, if the testimony satisfied them that the paper "JR" was placed by said Rogers in the hands of Gray, as instructions to prepare a will, to be thereafter executed; and although he afterwards adopted it as his will, or was prevented by the act of God from executing a will in all its provisions the same as the paper of instructions. The court, therefore, agree with the court below, that the instructions asked by the appellant ought not to be given; but says there is error in granting the instructions asked by the appellee. The cause is remanded for further proceedings, and a new trial. Cause remanded. IMPERFECTLY EXECUTED WILL, VALIDITY OF: See Offutt v. Offutt, 38 Am. Dec. 183, and note. In Morsell v. Ogden, 24 Md. 382, the principal case is cited to the effect that, to make a paper a will, it must appear that it was written animo testandi, and that the testator intended the paper as it stood to be his will, without looking to anything further to be done in order to perfect it. The principal case is cited, as discussing and establishing the legal principles applicable to cases where memoranda are sought to be established as wills, in Lungren v. Swartzwelder, 44 Id. 487. INSTRUCTIONS SHOULD NOT REMOVE MATERIAL TESTIMONY from the consideration of the jury: Potts v. House, 50 Am. Dec. 329; and instructions which may mislead the jury, by omitting material facts, should be refused: Stocton v. Frey, 45 Id. 138. But neglect to charge the jury on a point on which no instructions are prayed is not error: State v. Catlin, 23 Id. 230; Herbert v. Huie, 34 Id. 755; Churchman v. Smith, 36 Id. 211; Brittain v. Doylestown Bank, 39 Id. 110; State v. Scott, 42 Id. 148. RHODES ET AL. v. VINSON ET AL. [9 GILL, 169.] DESTRUCTION OF WILL IS NOT REVOCATION unless testator had at the time capacity to understand the nature and effect of the act, and performed it, or directed it to be performed, voluntarily with intent to effect revocation. CONTENTS OF IMPROPERLY DESTROYED WILL satisfactorily proved may be established as a will. ENTIRE CONTENTS OF IMPROPERLY DESTROYED WILL must be established by the clearest, most conclusive, and satisfactory proof. APPELLATE COURT CAN NOT Determine that the TESTIMONY OF ANY ONE WITNESS, in case of conflict, preponderates over that of all the rest. A PLENARY proceeding was instituted by appellees in the orphans' court to establish, by parol evidence of its contents, the last will and testament of the deceased grandfather of the appellees, alleged to have been destroyed by decedent while of unsound mind. A decree by said court in favor of the will and an order that the same be recorded as substantially proven was appealed from by appellants. McLean, for the appellants. R. J. Bowie, for the appellees. By Court, SPENCE, J. After a careful examination of the authorities, bearing upon the questions of law, presented for our adjudication in this case, we are satisfied that the court correctly announce the law, both upon principle and authority, in the case of Idley v. Bowen, 11 Wend. 235. The doctrine in the case of Idley v. Bowen is as follows: "The destruction of the instrument, by the direction and in the presence of the testator, or even by his own hand, will not amount to a revocation in judgment of law, unless he had at that time sufficient capacity to understand the nature and effect of the act, and performed it, or directed it to be performed, freely and voluntarily, with the intent to effect a revocation; and although the instrument is not in being, its contents having been satisfactorily shown, there is no difficulty in establishing it as a will, if it is shown to have been improperly destroyed: Vide Trevelyan v. Trevelyan, 1 Phillim. 149, where the same doctrine is held. We shall not stop to inquire as to proof of the capacity of the testator, at the time of the execution of the will, or of its legal attestation, but concede that both of these requisitions were legally gratified. We are first to inquire, whether the contents of the paper which was destroyed are satisfactorily proved. The policy of the law has thrown around last wills and testaments as many if not more shields to protect them from frauds, imposition, and undue influence, than any mode of conveyance known to the law. Can there be a doubt, that in cases like the present, where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy does require the contents of such paper to be established by the clearest, the most conclusive, and satisfactory proof? We think not. We think this very case furnishes a clear illustration of the soundness of that policy, which requires that the proof of the entire contents should be conclusive and satisfactory, and the authorities on this question all hold this doctrine. Is such the proof in this case? There are some four or five witnesses, no two of whom agree as to the entire contents of the will, all or nearly all affirm their recollection to be indistinct and imperfect. This fact, coupled with the vagueness, uncertainty, and discrepancy of the proof of the contents of the instrument, seems more to confuse than to convince the mind and satisfy the judgment what the contents of the will were. This court has no standard, or scale, by which they can measure and determine the weight of the testimony of the different witnesses, in order that any one of them should preponderate over all the rest; which would be indispensable where they all conflict, in order to arrive at a satisfactory conclusion, as to what the contents of the instrument were. We forbear to express any opinion upon the question of capacity, at the time of the destruction of the paper, for the reason that it is one of fact, and would not change the decision in the case. The decree of the orphans' court is reversed, with costs. INTENT TO REVOKE MUST CONCUR WITH ACT OF DESTRUCTION, in order to effect a revocation: See Malone's Adm'r v. Hobbs, 39 Am. Dec. 263; Johnson v. Brailsford, 10 Id. 601; Pringle v. McPherson, 3 Id. 713. Therefore, when testator is insane, such revocation can not be effected: Apperson v. Cottrell, 29 Id. 239. CONTENTS OF IMPROPERLY DESTROYED WILL should be established by clearest, most conclusive, and satisfactory proof. The principal case is cited to this effect in Hale v. Monroe, 28 Md. 113. One witness is sufficient to prove contents of a lost will: See Dickey v. Malechi, 34 Am. Dec. 130, and cases in this series cited in the note. In Dickey v. Malechi, supra, it is held that the whole of a lost will need not be proved, but that so much as is proved will be admitted to probate. MALCOLM V. HALL. [9 GILL, 177.] BONA FIDE ASSIGNMENT For Benefit oF ALL CREDITORS IS GOOD, when it conveys all the debtor's property and contravenes no express provision of the insolvent laws, which rather favor than discountenance such assignments. ASSIGNMENT WITH VIEW TO GIVE IMPROPER PREFERENCE may be avoided by trustee afterwards appointed by the insolvent court. DENIAL UPON OATH IN ANSWER, though made by assignee, puts complainant upon proof of his allegation that the debtor made the assignment expecting to apply for the relief of the insolvency laws. PROXIMITY BETWEEN DATE OF ASSIGNMENT AND DAY OF APPLICATION IN INSOLVENCY is no evidence of debtor's intention at the date of the assign. ment to apply in insolvency. A BILL was filed by appellant, the trustee in insolvency of Henry Keene, praying for a decree setting aside an assignment made by said insolvent to appellee before his insolvency, as a fraud against the insolvency laws. The grounds for the application are sufficiently stated in the opinion. The cause was submitted upon the bill, answer, and replication. From the chancellor's decree dismissing the bill the complainant appealed. Gwinn, for the appellant. Bartol, for the appellee. By Court, FRICK, J. The case here presented by the complainant does not entitle him to the relief he claims in a court of equity. Apart from the insolvent laws of the state, it is not contended that the conveyance from Keene to Hall could be successfully impeached. It purports to convey all his property, of every description, and without any reservation, to the grantee, in trust, for the benefit of all his creditors. And without any circumstances of fraud, or mala fides attached to the transactions, the law rather favors than discourages such a proceeding on the part of an unfortunate debtor. If he surrenders all, without any restrictions and conditions, and without favor or preference among his creditors, he has done all that an honest man can be required to do. He has done what the law would require of him, if the circumstances compelled him to ask for relief under the insolvent laws. And if the trust created by him is not designed to embarrass or hinder the lawful action of his creditors, but is a surrender of all he has, for prompt and equal distribution among them, and under failing circumstances, such as the recital of this deed indicates, we can see no ground to impeach the legality or fairness of the transaction. On the contrary, assignments of this character have been uniformly declared good at common law, and have had the repeated sanction of this court. And they are only questionable when they contravene the express provisions of the insolvent laws. If executed with "a view to give an undue and improper preference," when, in the language of the act, "the grantor had no reasonable expectation of being exempted from liability or execution for or on account of his debts, without applying for the benefit of the insolvent laws," then the law denounces, and a trustee, afterwards appointed by the insolvent court, may avoid them. But here there is nothing to sustain this assumption of fraud against the insolvent laws. The case is submitted upon the bill, answer, and replication. The bill avers that the grantor owed debts beyond the amount of the property conveyed, and the assignment is alleged to have been "in contemplation of insolv ency." If this means, in view of an application for relief, under the insolvent laws, or rather, that he had no reasonable expectation of escaping such application, the answer denies it, and affirms that the conveyance was made for the express purpose of avoiding it, and that all the creditors subsequently assented. This denial upon oath, although from the grantee and not the insolvent, is at least sufficient to put the complainant upon his proof. And when he relies upon the proximity in point of time, between the date of the deed and the day of the application, as evidence to show the animus and reasonable expectation of the grantor, that single fact, standing alone without any supporting circumstances, is not to be received as adequate or reliable proof of what the insolvent intended or anticipated at the time of executing the assignment. And taken with the explanation given in the answer, that the grantor was only afterwards coerced to apply to the insolvent commissioners, by the rigorous conduct of one of his creditors, it discloses no such motive or expectation as would bring this assignment within the provisions of the act. With a conveyance like this, fair upon its face, and just and equal in its provisions, it would require additional and corroborating evidence to justify legal conclusion that it was designed to contravene the provisions of the insolvent laws. It has been strongly insisted that assignments of this character are against the policy of our insolvent system, and ought to be AM. DEO. VOL. LII-44 |