The Democratic advocate. [volume] (Westminster, Md.) 1865-1972, 1892-01-30
1T WAS BUT ISN'T NOW.
The Court of Appeals Decides that the Paper
Pound in Miss McKinstrys Bible is a
viii, Then Decides it Isn't.


The Court of Appeals of Maryland on Fri
day of last week decided the case of The
Trustees Of the Western Maryland College vs.
Mordecai c. McKinstry, administrator Of
Mary Mckinstry, involving the character OF
paper offered as the will of the decedent
The Court decided the paper is will, and
reversed the order of the Orphans Court
which refused to admit it to probate. The
decision was delivered by Judge McSherry,
and is as follows:
Mary NJ McKinstry died on the 2sth of December
1890 and on the 30th of January following letters OF
administration upon her estate were committed TO
her brother, MOrdeeai c. Mckinstry. On the 18th OF
the succeeding March, the administrator brought
into and filed in the Orphans Court OF Carroll
county bible which had belonged to the dece-
dent and upon the last leaf in the back thereof
there was written, in the hand writing OF the de-
ceased the following:
"S5, 600 for West Md. College $1,000 of it to be
given to the Theological Seminary: 81 900 to Ward
Hall. The $500 TO be given to the main build
July Is, 1885. MAMIE McKINsrRY''
Subsequently the Trustees of Western Maryland
College, body corporate, filed q petition in the
Orphans Court offering the above recited writing
for probate as testamentary paper; but Mordecai
C. McKinstry in his capacity as administrator, filed
cdreCt against the probate thereof. Some evidence
was taken and all agreed statement of facts was
drawn up and signed and finally, after hearing,
the Orphans Court refused to admit the paper TO
probate. From this order the present appeal has
been taken by the Trustees of Western Maryland
College.
The only question which we are called upon to
decide is Whether the paper is entitled 10 be admit
ted TO probate as a valid will of personal property.
Whether it is such will depends this Court
concsey said in heleter rs Herman, 60 Nd, ~, or
whether the decedent had 1.-The wish mind to do
that which the paper seeks TO do, and to do it then
and by that paper The mere form of the instru
ment is immnterial, for the reports abound with
adjudged cases admitting to probate valid tesla
mentary dispositions of personal property papers OF
almost every description. Careg e. De!tis IS va.
it shall take effect, be apparent the face Of
the instrument, it will be admitted to probate upon
proof of its execution. But its failure TO express
such intention will not defeat its operation rs
other eompetent evidence Df course ii will be un.
4ersood tbet tes observations AMY oniv 10 wills
disposng of personal property and executed prior
to the LIST day of August lssL Since the act Of 1881
ecuton and attestation is required in wills of per
sonal as in those relating to real estate.
Now, whilst the paper in controversy contains no
words declaratory of testamentary intention, the
evidence in the record is quite sufficient TO show
that Miss McKinstry designed that ii should operate
her will. She had been educated at Western
Maryland College and was warmly attached to that
institution. In April 1883 her father died suddenly
and intestate. Her health was then very delicate
Four months after the deceaSe of her father, she
wrote with her own hand, on the blank leaf of the
bible she constantly used the words and figures we
have already transcribed.
In 1886 her mother died. In the Spring of 1890
when Frustrated with sickness and when evidently
contemplating the near approach OF ueatil, silt
showed the writing her only sister and asked her
to read it and TO say what she thought of IL. Her
sister describes that interview, thus AFTER read
ing it said Mamie if this is your wish, II IS all
right and she said, L am very glad, ana SAID
Mamie, it is yours, you can do with 1t as you
please;' said after thinking over it, this writ
len some time ago. have you never changed your
mind about it? She said no. have not, and I!rould
ne 5U tpsIcs 10 be carried out" The same witness
further testified 81 said why did you write it in the
bible this is a very sacred place." She replied
yes that is The reason why wrote it there: thought
that there are very few who would not respect the
bible" In the same conversation Miss Mary Nc
won't think l am taking this of of you. you will
have plenty without it, In September, 1880, Rev
Dr. Lewis President of the College called 10 see the
Misses McKinstry, and in the course of converse
ton about building q Chapel for the College re-
marked. that it would be nice way for you ladies
to help us Miss Mary Mckinstry made no answer
but after his departure she said 10 her sister, You
know what l said TO you last Spring; II they VIII
wait until am dead and gone they will know what
With this testimony before us, it is impossible to
doubt or to misunderstood the intention of Miss
Mary McKinstry with respect TO this paper. She
certainly meant something by the writing-it was
not designed by her to be an idle and meaningless
thing. She knew it intended TO deprive her
brother and sister of a portion of her estate. But
this she also knew would only be effective after
her decease. 1t expressed her wishes and she
wanted those wishes carried out, not in her life
time because that she could have done herself but
after her death, when some one would come
across" the paper she had written and finding ii
would respect The disposition she had made. one
Of the reasons she assigned for writing it in her
bible was that itmght be found-and the other was,
that the sacred character of the volume might afford
an additional assurance of the fulhlmemt of her
purpose. Why need she have cared whether IT was
found or not unless when found it was TO be heed
ed and given full effect, as the expression of her
wishes She evidently believed that the paper aS
written amply sufficient 10 carry out her wishes
and she doubtless died with an abiding conviction
that those wishes would never be frustrated. II was
the paper in the condition it was that she relied on
not merely as eydencing her wishes, but as sufii.
cient TO carry them into effect after her decease. If
she regarded il as q mere memorandum ana not Il
complete and perfected will, she would never have
been solicitous that it should be found after her
DEATH and when found respected; and she would
never have said to her sister after the interview
with DIR. Lewis, IF they wait till l am dead and
gone they will know what l intend giving them.
Giving them; how? Obviously by some instrument
operative after her deaththe only one she is shown
her own hand where she believed it would be ulti-
mately found and when found, carried into effect
Her affection for the College prompted her TO make
provision for it, her estate was amply sufficient Tor
that purpose, whilst still leaving considerable for
her next of kim she chose to make that provision by
a paper which she meant TO be operative after her
DEATH she lived for more than seven years after its
date without changing wishing to change her
intention, and she wrote and signed 1t at time
when the law of this state required no more Tor
maity in the execution of wills of personal property
than She observed, and IL must stand her last Will
and testament Just as she wished it TO stand, and
Just she believed it would stand.
There was consequently error in the order Of the
Orphans Court refusing TO admit the paper to pro-
bate and that order will be reversed and the cause
admitted probate, the costs to be paid out of the
estate of the decedent.
True copy,-Test:
]. FRANK FORD, Clerk.