ment before witnesses for their signature clearly indicated his intention that the instrument was his will, and that he desired the witnesses to Isign it as such, and constituted a sufficient acknowledgment to witnesses that such instrument Iwas his will.

Edward J. Smith, of Frederick, and Alfred J. Shriver, of Baltimore (Smith & Smith, of Frederick, on the brief), for appellants. Frank Gosnell and William L. Marbury, both of Baltimore (Frank L. Stoner, of Frederick,

[Ed. Note.-For other cases, see Wills, Cent. on the brief), for appellees. Dig. § 305-313.]

10. WILLS~303(3)—EXECUTION-PROOF.

The mere fact that after an interval of 40 years one of witnesses to will is unable to remember its testamentary character is not sufficient to deprive it of legal sufficiency where proof shows execution by testator and signature by witnesses in presence of testator.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 714.]

11. WILLS

306-REVOCATION-METHOD.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 732, 733.]

12. WILLS 306-REVOCATION-EVIDENCE.

Under Code Pub. Civ. Laws, art. 93, § 324, prescribing the exclusive method of revoking wills, testimony as to subsequent declarations of testator inconsistent with provisions of the will is neither admissible nor sufficient to prove revocation of the will.

URNER, J. This appeal is from an order of the orphans' court of Frederick county refusing to admit to probate a paper purporting to be the will of George E. Hankey, late of Frederick county, who died on December 20, 1915, leaving real and personal property of considerable value. Upon the theory that Mr. Hankey died intestate, no will having The fact that a will executed 40 years before been found among his papers, administration death of testator was found among old, discard- upon his personal estate was granted to the ed papers in a storeroom of testator's home, and not in safe deposit box in which testator appellees on December 29, 1915. About a kept valuable papers, is no adequate ground up-month later one of the administrators, in the on which revocation of will can be predicated, course of his examination of the contents of since, under Code Pub. Civ. Laws, art. 93, § 324, a storage room adjoining the bedroom oca will can be revoked only by another will or codi-cupied by the decedent in his lifetime, discil in writing or other writing declaring revocation or by burning, canceling, tearing, or covered among a lot of miscellaneous papers obliterating by the testator or in his presence the document now in dispute. It purports to and by his direction and consent. be the last will and testament of George E. Hankey, executed December 30, 1874, and is attested by the signatures of three witnesses. ministrators, through their attorney, and two This paper was filed for probate by the adof the witnesses, the other being dead, made affidavits in regard to their attestation. The affidavit of William N. Hoffman, an attesting witness, was to the effect that he did not see the testator sign the will, but heard him that at the time of so doing he was, to the declare it to be his last will and testament; best of the affiant's apprehension, of sound and disposing mind and capable of executing a valid deed or contract; that the affiant subscribed his name as a witness to the will in the presence and at the request of the testator, but to the best of his knowledge no other person was then present; and that he did not see the other subscribing witnesses sign their names to the instrument. other living witness, James A. Taylor, made affidavit that he did not see the testator sign the will; that the testator did not tell the affiant it was a will he was attesting, and therefore he could not swear it was a will; that he could not say the testator was at the time of sound and disposing mind and capable of executing a valid deed or contract,

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 732, 733.]

13. WILLS 173–Erasures AND INTERLINEATIONS-EFFECT.

Erasures and interlineations in a will consisting of merely correcting name of the county in which one of the legatees is located and in changing the name of one legatee of a small bequest were not sufficient to impair the will in other respects or to affect its general validity. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 452.]

14. APPEAL AND ERROR 609-DISMISSAL OF APPEAL-SUFFICIENCY OF RECORD-SUPPLE

MENTAL RECORD.

A motion to dismiss an appeal on the ground that part of the testimony in the lower court was omitted from the record transcript will be denied where the deficiency has been supplied by a supplemental record, and no prejudice to appellees appears to have resulted from the omission in the first instance.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2685-2687.]

The

Appeal from Orphans' Court, Frederick nor could he state that when he attested the County.

"To be officially reported."

paper there was any one present but the testator and himself, or that he saw the other subscribing witnesses sign their names to the paper, but that he was certain as to the

Proceeding for the probate of last will and testament of John H. Hankey, propounded by John H. Hankey and others, adminis- fact of his having attached thereto his own trators. From an order refusing to admit signature. the will to probate, the Woodstock College of Baltimore County, Md., a corporation, and others appeal. Reversed and remanded. Argued before BOYD, C. J., and BRISCOE, BURKE, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

The proof furnished by the affidavits we have summarized was not considered by the orphans' court to be sufficient to justify the admission of the will to probate, but no order was then passed for its rejection. A petition was subsequently filed by the appel

lants, as legatees under the will, alleging [2, 3] The names of the three witnesses are that it was validly executed and attested, subscribed to the will beneath the signature and requesting that it be admitted to probate. of the testator, and to the right of an attestaIt was charged in the petition that the af- tion clause which recites that the will was fidavits made by the surviving witnesses did signed, sealed, published, and declared in not correctly state their real knowledge on their presence by the testator, and that they, the subject, as communicated to the deputy at his request, in his presence and in the register of wills by whom the affidavits were presence of each other, signed their names prepared and the oaths administered. The thereto as witnesses. The attestation clause administrators answered the petition and is itself prima facie evidence of the facts disputed the validity of the alleged will, as- therein recited. Conrades v. Heller, 119 Md. serting that it was found among a lot of old 461, 87 Atl. 28; 40 Cyc. 1125. But the fordiscarded papers, that there are erasures malities it describes are in excess of those and changes in its provisions, and that it required by the law. There is no provision was not executed and attested as required by in the statute then or now in force that the law. The answer denies that the affidavits testator must sign in the presence of the made by the attesting witnesses were in any witnesses, or that they must sign in each othrespect erroneous. er's presence. It is provided simply that the At the hearing of the case before the or- will shall be in writing and signed by the tesphans' court the signature of Lewis E. Thom- tator, or by some person for him in his presas, the deceased witness to the will, was duly ence and by his express direction, "and shall proved. The surviving witnesses deposed to be attested and subscribed in the presence of the same facts stated in their respective af- the said devisor" by credible witnesses to the fidavits, except that Mr. Hoffman said he number of "three or four" if the will was could not remember whether or not the oth-executed prior to 1884, and "two or more" if it er witnesses were present when he signed, is of a later date. In construing and applyand that he did not intend his affidavit to ing the statute, this court has emphasized the make a positive statement as to their ab fact that it does not require the witnesses to sence, and except also that Mr. Taylor testi- see the testator sign the will, or to observe fied he did not mean his affidavit to indicate each other attest its execution. Stirling v. any doubt as to the testator's mental capaci- Stirling, 64 Md. 138, 21 Atl. 273; Conrades ty. The deputy register of wills who pre- v. Heller, supra; Robinson v. Jones, 105 Md. pared the athidavits vouched for their ac- 71, 65 Atl. 814; Etchison v. Etchison, 53 Md. curacy according to his understanding of the 357; Welty v. Welty, 8 Md. 22. The statestatements made by the witnesses at the ments in the affidavits and testimony to the time. For the purposes of the present ques- effect that the testator did not sign in the tion the qualifications which the attesting presence of the two deposing witnesses, and witnesses have made as to their first deposi- that they may not have attested the will in tions are not important. It is immaterial the presence of each other, may therefore be entirely disregarded. The only material inquiry, as the testator's own signature is proven beyond dispute,' is whether the will was "attested and subscribed" in his presence by each of those who signed it as witnesses.

whether Mr. Hoffman stated in his affidavit

that he did not sign in the presence of the other witnesses, and it is not a vital inquiry whether Mr. Taylor deposed that he could not express an opinion as to the capacity of

the testator to make a valid deed or contract.

These subjects were discussed when the affidavits were in course of preparation, and the deputy register had no possible interest in varying the statements of the witnesses as they were then understood. There is no occasion to doubt the honesty of purpose of any one concerned in the proceeding.

[4, 5] It is, of course, essential to the attestation, if the instrument was signed by the testator out of the presence of one or more of the witnesses, that he should in some way acknowledge it to them as his act. The attestation should also be made at the testator's request, express or implied. It is not, however, necessary that the testator should

[1] Under the law of this state in force at verbally declare the instrument to be his will, the time of the execution of the paper in if his conduct, or the paper itself, apprises controversy, wills of personal property did

not require attestation, while three subscrib- the witnesses of that fact (Conrades v. Heling witnesses were necessary to the valid ler and Etchison v. Etchison, supra); nor is execution of wills of real estate. Acts 1798, it requisite that he should formally ask them c. 101; Code 1860, art. 93, § 301; Acts 1884, to sign and attest the paper, his implied asc. 293; Lindsay v. Wilson, 103 Md. 265, 63 Atl. 566, 2 L. R. A. (N. S.) 408. Whether the present instrument would be valid to the extent of its dispositions of personalty, even if not effective to pass realty, is a question raised in argument which we need not discuss, because we are of opinion that it is validly executed for both of those testamen

sent being sufficient (Gross v. Burneston, 91 Md. 387, 46 Atl. 993; Robinson v. Jones, supra; Higgins v. Carlton, 28 Md. 140, 92 Am. Dec. 666; Brengle v. Tucker, 114 Md. 602, 80 Atl. 224). In this instance one of the subscribing witnesses, Mr. Hoffman, states in his affidavit that he heard the testator declare the paper to be his will, and that the

In Conrades v. Heller, supra, it was said by Chief Judge Boyd that upon the question as to whether the testator acknowledged the will to the witnesses:

the testator's presence and at his request. | per, which was lying on a table, and that he So far as the attestation of this witness is complied with the request and then left the concerned, we have explicit proof that the room. With the executed paper placed berequirements of the law were fully observed. fore him on the table, plainly disclosing the [6, 7] In the case of the deceased witness, fact that it was a will, and with the attestathe proof of his signature is given by statute tion clause, already signed by two other witthe same effect as if he had been present nesses, conveying the same information, it at the probate and had testified that the will is hard to believe that his mind did not rewas duly executed. Code, art. 93, § 353; ceive the knowledge thus afforded. Conrades v. Heller, supra. The third witness, Mr. Taylor, while stating in his affidavit that he signed as a witness in the presence of the testator, makes the further statements that he was not told, and therefore could not swear, that the paper was a will, and that he could not say that the testator was capable at the time of executing a valid deed or contract. In the light of the later testimony of this witness, the allusion in his affidavit to the mental capacity of the testator, instead of announcing verbally to one tator could be disregarded, but it is clear that a negative statement of this nature would not be sufficient to overcome the presumption of the testator's sanity, or constitute a proper ground for a refusal to admit the will to pro-act the testator clearly indicated that the bate. Smith v. Shuppner, 125 Md. 409, 93 Atl. 514.

[8] The recital as to the affiant's inability

that the recitals of the attestation clause are

"It is sufficient if he by word, act, sign, or conduct makes it certain that he intends the paper which he is about to sign to be his will and desires the witnesses to sign it as such. 40 Cyc. 1115-1117."

[9] In the case of the present will the tes

of the witnesses that the paper was his will,
virtually stated that fact through the medi-
um of the paper itself, which, as executed
and placed before the witness, revealed at
once its real nature and purpose.
By this

paper was his will, and that he desired it to

be attested as such by the witness then in

attendance.

execution and attestation of the will is suffi[10] In our judgment, the proof as to the cient under the statute to justify its admission to probate, and the mere fact that after

is unable to remember its testamentary charan interval of 40 years one of the witnesses acter should not deprive it of the legal effi

to swear that the paper he signed was a will, because he was not told that such was its character, is not conclusive proof, after the lapse of more than 40 years, that the witness was not informed in some way at the time as to the testamentary quality of the instrument he was attesting. The presumption is true. Conrades v. Heller, supra. Its decla-cacy to which his signature was intended to ration that the paper being attested was the will of George E. Hankey was immediately under the eyes of the witness as he attached his signature. The two other witnesses and the testator had already signed. Mr. Taylor states that the testator asked him to sign the paper without telling him it was a will, but it would be very remarkable if he could re

member all the incidents of an event which occurred so many years ago, and it is highly improbable that under the circumstances of the request and of his attestation he did not understand at that time the purpose of the act he was performing. While his memory, which he says is not good, does not enable him to testify that it was a will he was witnessing, yet he does not assert that he was actually unaware of that fact on the remote occasion of its execution in December, 1874. The original will was submitted for our inspection at the hearing, and we observed that the names of the witnesses were signed on the last page of the will, where its concluding language and the signature of the testator were in full view. The will is in the even handwriting of the testator's attorney, James McSherry, Esq., afterwards Chief Judge of this court. It was testified by Mr. Taylor that he was called into Mr. Hankey's

contribute.

[11] Upon the question raised by the allegations of the answer as to the finding of the will among a lot of discarded papers in a storeroom at Mr. Hankey's home, and as to certain erasures and interlineations in the will, we must hold, in view of the evidence, that there is no adequate ground upon which a revocation of the will by the testator can be predicated. The only methods of revoking a will in this state are those prescribed by section 324 of article 93 of the Code, as

follows:

"No will in writing devising lands, tenements or hereditaments, or bequeathing any goods chattels or personal property of any kind, as heretofore described, nor any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, canceling, tearing or obliterating the same, by the testator himself or in his presence, and by his direction and consent; but all devises and bequests so made shall remain and continue in force until the same be destroyed by burning, canceling, tearing or obliterating the same by the testator or by his direction, in manner aforesaid, unless the same be altered by some other will or codicil in writing or other writing of the devisor signed as hereinbefore said in the presence of two or more witnesses declaring the same."

The administrator who discovered the will testified that it was found "in the old back

In consequence of the conclusion we have reached, it will be necessary to reverse the order of the orphans' court and remand the cause to the end that an order admitting the will to probate may be passed.

Order reversed, and cause remanded; the costs to be paid out of the estate.

DUGAN v. HOWARD.
(Court of Appeals of Maryland.
1. EQUITY 159-PLEAS.

(130 Md. 114) (No. 76.)

Jan. 17, 1917.)

ters and a lot of rubbish." He was unable | we would not be justified in ordering the apto say in just what part of the room he peal dismissed. found the will, as he gathered it up, without recognizing it, among a lot of papers which he took home for examination. The room contained a number of boxes and sacks filled with papers and letters. The impression of the witness seemed to be that the will was in one of the boxes. At the Farmers' & Mechanics' National Bank of Frederick the testator had a safe deposit box in which he kept his bonds and certificates of stock and some title deeds. This was the place where it might have been supposed that the will also would be kept, but the fact that it was not given the care and protection which other important papers received does not prove that its revocation was intended. It has not been burned, canceled, torn, or obliterated, or revoked by a later will. It remained in the testator's possession until the time of his death without revocation by any of the means specified by the statute for such a purpose, and as his duly executed last will and testament it must be given the recognition which the law accords to such an instrument. Byers v. Hoppe, 61 Md. 211, 48 Am. Rep. 89; Lowe v. Whitridge, 105 Md. 189, 65 Atl. 926; Sewell v. Slingluff, 57 Md. 548; Wittman v. Goodhand, 26 Md. 103.

[12] Testimony was offered as to subsequent declarations by the testator inconsistent with some of the provisions of the will, but such evidence was not sufficient or admissible to prove that the will had been revoked. The statute does not permit a formally executed will to be revoked by verbal declarations. This view is emphasized in the cases last cited.

[13] The only erasures and interlineations in the will consist of the striking out of the word "Howard" and the insertion of "Baltimore" as the correct designation of the county in which Woodstock College, one of the legatees, is located, and in the substitution of the name of Martha Batson for that of Arthur Buxton as one of a number of persons to whom the sum of $50 each is bequeathed. These alterations have no effect upon the will in other respects, and clearly do not impair its general validity. Safe Deposit & Trust Co. v. Thom, 117 Md. 154, 83 Atl. 45; Home of the Aged v. Bantz, 107 Md. 543, 69 Atl. 376; Id., 106 Md. 147, 66 Atl. 701; Eachbach v. Collins, 61 Md. 498, 48 Am. Rep. 123.

[14] A motion to dismiss the appeal was made on the ground that a part of the testimony taken before the orphans' court was omitted from the transcript of the record. The defficiency has since been supplied by a supplemental record, and no prejudice to the appellees appears to have resulted from the omission in the first instance, and under such circumstances, as we held in Heating Co. v. Whitelock, 120 Md. 418, 87 Atl. 820,

While pleas are not usual in equity suits, any facts may be pleaded which without going into the full merits show a good and complete defense to the whole or a part of the bill, such as the pendency of another suit in the same jurisdiction between the same parties in regard to the same subject-matter.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 396.]

2. ABATEMENT AND REVIVAL 8(1) DE-
FENSES IN OTHER ACTIONS PENDING.
for labor and materials furnished for defend-
In a suit to enforce a subcontractor's lien
ant's building, the action of the court in strik-
ing a plea of lis pendens setting up a prior ac-
tion against the same defendant to enforce a
mechanic's lien, to which suit the plaintiff had
been made a party as a lien claimant, and in
which he had set up the same claim as that in-
volved in the present suit, and which case is still
pending, was error.

and Revival, Cent. Dig. §§ 39, 47, 48, 60, 63.]
[Ed. Note.-For other cases, see Abatement

3. MECHANICS' LIENS 122 - PROCEEDINGS
TO PERFECT-NOTICE-CONTRACT NOT MADE
WITH OWNER.

Under Code Pub. Civ. Laws, art. 63, § 11, providing that, where the contract is not made with the owner or his agents the lien claimant must give notice to the owner in writing of his intention to claim a lien within 60 days after furnishing the materials, a notice of plaintiff's the amount for which his contract was let was intention to claim a lien which incorrectly stated defective.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 165-170.] 4. MECHANICS' LIENS 122 TO PERFECT CIENCY.

PROCEEDINGS NOTICE TO OWNER - SUFFI

A notice of plaintiff's intention to claim a lien which did not give the date when any of the materials were furnished or labor done was defective.

[Ed. Note.-For other cases, see Mechanics'

Liens, Cent. Dig. §§ 165-170.]

5. MECHANICS' LIENS ~291(5)—INTEREST ON CLAIM.

Interest on the claim could not be awarded for a longer time than claimed by plaintiff in his claim for lien.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 603.]

Appeal from Circuit Court, Anne Arundel County, in Equity; Jas. R. Brashears, Judge. Suit by Charles A. Howard against Mary Coale Dugan. From a decree striking out her plea of lis pendens, the defendant appeals. Decree reversed, and bill dismissed, without