Amos Cramer vs. Gideon D. Crumbaugh, 3 Md. 491

Mason, J., dissented in part, and delivered the following dissenting opinion: In the views expressed by the chief justice, upon the first four heads or divisions into which he has divided this case, I concur. Upon the fifth I dissent. I do not think there is sufficient evidence in the record to establish, that the testator had any knowledge of the contents of the paper at the time he affixed his signature to it as his last will and testament.

If Crumbaugh had taken no beneficial interest under this will, all the presumptions and legal intendments would have favored the validity of the will, and I would not have hesitated to have pronounced it good. While it is clear from the proof that the deceased intended to make a will, it is by no means clear to my mind, that the paper actually executed was the will which he wanted to make. Is it not manifest, that any other paper could as easily have been imposed upon the testator as the will he wanted to sign, and which he supposed he was signing?

In other words, does the record furnish any evidence, or any facts, from which a reasonable presumption would arise, that the contents of this paper were known to Cramer, or that it was drawn in accordance with his directions? I do not intend to intimate that any particular kind of proof Is necessary, where the scrivener takes a benefit under the will, to show the actual knowledge of its contents by the testator; but in some way, other than the mere legal presumptions which usually favor duly executed testamentary papers, I think it should appear that the party signing the supposed will knew its contents.

The error in the court’s opinion in this case 1 conceive to consist in the circumstance, that while it is conceded “that if a party,” (according to Baron Parke, in the case in 1 Curteis,) “writes a will under which he takes a benefit, that is a circumstance which generally ought to excite the suspicion of the court,” &c., yet, in fact, such a case is not sufficiently distinguished from the case of an ordinary will.

The learned judge, whose opinion is relied on and cited by the majority of the court, when he says, “these are cases of wills, prepared by a legatee so pregnant with suspicion,” See., embraces the case now before us, and that without clear proof of the actual knowledge of the contents of the paper by the supposed testator, the will ought not to be sustained. In addition to the other suspicious circumstances attending this transaction, the fact that the legatee and scrivener, at his own instance, became the depository of the paper, ought to determine the case against him.

At no time then had the testator'an opportunity of discovering whether a fraud had been practised upon him, (if such was the fact,) by referring to the paper.