Pegg v. Warford

4 Md. 385

• Court: Court of Appeals of Maryland
• Decided: December 15, 1853
• Status: Published

Opinion

Le Grand, C. J.

delivered the opinion of this court.

This is an appeal from an order of the orphans court for Baltimore city.

It appears from the record, that on the 8th of February 1853, a paper, dated the 6th of April 1848, purporting to be the will of Rachel Colvin, deceased, was produced and filed in the orphans court for Baltimore city; that on the 26th of the same month, Thompson Pegg and others filed their petition or caveat, which, on the 21st April, was answered by the appellee. That on the 1st March 1853, another paper, dated the 13th October 1845, purporting to be the last will of Rachel Colvin, was produced and filed in the same court; and that, on the 3rd March 1853, Jesse Landis and others filed their caveat to the will of 1848; and, on the 19th March 1853, Thompson Pegg and others filed their caveat to the paper dated 13th October 1845. On the 21st April 1853, the appellee filed his answer to the petition or caveat of Pegg and others to the. paper dated the 13th October 1845, and, on the same day, filed his answer to the petition or caveat of Landis and others to the same paper. On the 17th May 1853, on the application of Pegg and others, the orphans court directed issues, embracing the papers purporting to be wills of date 1845 and 1848, to be sent to the superior court for Baltimore city for trial; and on the written application of Landis and others, issues were ordered touching the will of 1848. On the 23rd of October 1853, Regnear Van Sickle and others filed their caveat against the paper of the 6th Jipril 1848, which was answered by appellee on the 12th November following.

On the 5th November 1853, appellants filed their petition, which, after reciting the proceedings of the orphans court, prays that t.he issues which had been granted “may be revoked, and that plenary proceedings may be ordered, and that new issues may be framed and transmitted for trial to the circuit court for Baltimore county, and that said parties, (those who had filed caveats,) may be ordered to join in the same, or that the said issues granted upon the application of petitioners may be revoked, and new ones framed and transmitted to the circuit court of Baltimore county for trial.”

On the 12th November 1853, appellee, and Landis and others, filed their separate answers to the petition of appellants, the appellee resisting the granting of the prayer of the petition, and Landis and others acquiescing in it, except in so far as they are required to join with the petitioners and to abandon the issues ordered on their own application. On the 14th November 1853, Van Sickle and others filed their answer and consent to the prayer of the petitioners. On the 26th November 1853, the court dismissed the petition of the appellants, and it is from this order of dismissal the appeal is taken.

These facts exhibit a singularity of case without parallel in the published history of the judicature of the State. In all the cases, with which ure are acquainted, in which issues have been ordered by the orphans courts of our State, the caveators have, so far as the records show, harmonized in their efforts to set aside the papers propounded as wills, and therefore, in each case, there has been but one set of issues. The uniformity of this practice would seem to impress it with the character of being the best, and there can scarcely be a doubt on the mind of any one that when it is practicable it ought to be observed. We, therefore, hold it proper for the orphans court to order a joinder of all the caveators when the issues they desire are the same in substance; but, we can very readily understand, that in a case where there is more than one paper propounded as a testamentary disposition of property, the interests of the different caveators may be, to a certain extent, conflicting, and this case furnishes an illustration of the principle. It may be to the interest of some of them to sustain the will of 1845, whilst they assail that of 1848. .It would be manifestly productive of confusion to compel such of them to join with those who not only assail the will of 1848, but also that of 1845. There ought not to be' a joinder of parties whose proposed ends are not the same, but where they are so there is, in our judgment, a power in the court to compel it.

It is a somewhat remarkable circumstance, that notwithstanding the great care bestowed upon the draught of the act of 1798, chapter 101, and, in general, its minuteness, and particularity of detail and direction, there should have been so little ascertained by it in regard to the granting and trial of issues. The only parts of the act having reference to this matter are the 16th and 17th sections of sub-chapter 15,, and the 20th section of sub-chapter 8.-

By the 16th section of sub-chapter 15, it is provided, that “whenever either of the parties having a contest in the orphans court shall require it, the said court may direct a plenary proceeding, by bill or petition,’to which there shall be an answer on oath,” &c.;, and, by the 17th section of the same sub-chapter, it is enacted, “on such plenary proceedings all depositions shall be taken in writing and recorded, and in case either party shall require, the court shall direct an issue or issues to be made up, and sent to any court of law which-may be most convenient,- under all circumstances, for trying the same, and the said issue or issues shall be tried in the said court of law as soon as may be, without any continuance longer than is necessary to procure the attendance of a witness or witnesses; and the power of the court of law,, and proceedings thereto relative, shall be as hereinbefore directed respecting the trial of issues, and the orphans court shall give judgment, or decree upon the bill and answer, or upon bill, answer, depositions, or finding of the jury,” &c. The reference in this section, by the words “as hereinbefore directed,” is to the 20th section of sub-chapter 8, which provides for the case of an executor or administrator being indebted to the estate of the deceased, and authorises the court, on the petition of any person interested in the administration, to direct an issue or issues to be tried, and declares “the same shall be tried in any court of law proper for the trial and most convenient under all circumstances, and the court of law shall have power to direct the jury and grant a new trial, as if the1 issue or issues were in a suit therein instituted,” &c.

There is nothing in either of these sections, nor in any other part of the act of 1798, nor indeed in any of the supplements thereto, which defines the duty of the orphans court where issues are applied for by different parties, at different times; and there is also a perfect silence as to the power of the court over the matter of granting issues when that authority has been once exercised. In regard to these matters therefore, our conclusions and reasoning must be drawn from the nature of the proceeding, the purpose proposed by the testamentary system, and the analogies of the law.

In the case of Cain, et al., vs. Warford, 3 Md. Rep., 462, this court said, “the obvious purpose of the 16th section, (sub-chapter 15,) is to enable the court to advertise itself of the real facts in the case,” and this also is clearly the object of the 17th section, which provides for an issue or issues. The practice of directing issues is undoubtedly borrowed from chaneery and the ecclesiastical courts, and was observed in this State prior to the passage of the act of 1798. By the' 9th section of the act of February 1777, chapter 8, the orphans courts were empowered to grant a plenary proceeding, and to order an issue and summon a jury for the trial of the same. ’Whilst, however, that act authorised the court to give judgment on the finding of the jury, it is not so clear they were bound to do so in conformity with it as they arc required by the act of 1798.

Under the act of 1798, “oí any singe of the proceedings, before final adjudication, either party may require it, (an issue,) and the court is not at liberty to refuse it.” Barroll and Cannell, vs. Reading, 5 Har. and Johns., 176. From this it follows, that even after the finding of a jury on issues, a party in interest can require another issue or issues in regard to facts not covered by those pronounced upon, if the final judgment on the paper purporting to be a will has not been rendered. Thus if an issue be sent to a court of law which involves only the question of the execution, attestation and publication of the paper, and it be found in favor of the paper, it is still competent to the same party, or any other in interest, to require another issue or issues involving an inquiry as to the mental and disposing capacity of the testator, or the exercise of undue importunity and control over him, the practice of fraud upon him or any other fact not inconsistent with the execution, attestation and publication of the paper. No issue can be granted which substantially embraces the same question that has been pronounced upon by the jury, for their finding in regard to it is conclusive and binding on the whole world. Nor, for the same reason, can the same issue be granted on the several applications of different parties, unless they be joined as plaintiffs or defendants, so as to produce by the trial but one and the same verdict. Were different parties permitted to propound the same question to different juries, there might, and most probably would be, different verdicts, and, as an inevitable consequence, under the act of 1798, different judgments in the orphans court on the same matter. It would be absurd to impute such a folly to the act. Its purpose is to ensure certainty, and this cannot be accomplished if the same question be submitted to different juries. We hold, therefore, from the very nature of the thing, when a question is once submitted, so far as it is concerned, the functions of the orphans court are suspended until the finding of the jury be certified, and when that is done, it has no discretion in regard to it, but is imperatively required to enter up judgment in conformity thereto. And, as a consequence of this, where, on the application of one party, an issue is-transmitted to a court of law for trial, the granting, on the application of another party, of substantially the same issue to be tried before another jury, is a mere nullity — a void act. On an appeal from an order of the orphans court awarding the same issue a second time, this court would be bound to denounce it as utterly void and of none effect.

We perceive nothing in these views obnoxious to censure from any quarter. When the question has been once fairly answered by a jury it ought to be considered as definitively settled. If the jury disregard the testimony or the court err in its instructions of the law, the party aggrieved has his remedy by a motion for a new trial, or an appeal to this court.

We do not regard the orphans court as having any power to revoke or remodel issues after they have been transmitted; until then, however, as we have said, they have the right, by virtue of a power necessarily inherent in them, to compel the joinder of parties who desire the same issues; and, as we have shown by the case of Barroll vs. Reading, 5 H. & J., 176, a party has the right to require an issue up to the time of final adjudication, the appellants are entitled to an issue involving an inquiry as to the mental capacity of Miss Colvin when she executed the paper dated 13th October 1845, and the orphans court have power, in their order awarding it, to direct that it shall be tried at the same time and before the same jury which shall act upon the issues already transmitted. This secures to them all they have a right to ask — the verdict of a jury on all the questions they may think proper to propound touching the paper of 1845 or of 1848.

It does not necessarily follow, because the finding of a jury on issues be as is desired by those at whose instance they may have been awarded, that the paper shall be admitted to or denied probate as the case may be. The finding of the jury may be affirmatively or negatively on the questions submitted, and yet such finding either way may not determine the question of the validity of the paper as a will; there may be other facts outside of the verdict and not inconsistent with it which will decide the question. For instance, a jury might find on an issue so framed that a certain paper purporting to be a last will, was executed, duly attested and published as such, and yet its final judgment might be against the paper as a valid will, because it might appear from testimony taken before the orphans court, or by the finding of another jury, that at the time of the execution and publication, the testator had not the requisite disposing capacity. And this being so, the orphans court have not only the right, but are bound to render their final judgment on the finding of different juries, where they have pronounced on different issues touching the same paper. They .are also to consider all testimony adduced before them on the same subject which is not inconsistent with the finding of the juries. So far as the facts covered by the verdicts are involved, they are settled unalterably by it, and all other facts contrariwise are to be disregarded.

Whilst we are of opinion the orphans court have no power to revoke or remodel the issues transmitted to the superior court at the instance of the appellants, yet we nevertheless think, that by consent of the parties to the proceeding they may be abandoned in the court of law where they are pending for trial, and others framed by the orphans court without prejudice to the rights of either party.

As the prayer for plenary proceedings is also embraced in the petition of the appellants, we will remark, that we regard the proceeding which has been had on the caveat and petition of the appellants as a plenary proceeding, and that wherever a bill or petition be filed, whether or not the other parties are cited to appear, if in point of fact they do appear and answer, the proceeding is plenary.

From these reasons it appears, we are of opinion, that the appellants were entitled to issues relating to the mental capacity of Miss Colvin when she executed the paper of October 1845. In so far we disapprove of the order of the orphans court, and affirm it so far as it relates to the other matters embraced in the petition of the appellants.

Order affirmed in part and reversed in part, and pause remanded, costs to await the final result.