Barroll & Cannell v. Reading

Jun 15, 1821
Versions:5 H. & J. 175

The opinion of the court was delivered by

Buchanan, J.

It appears in this case that an instrument of writing, *176purporting to be the last will and testament of Andrew f. Peterson, was exhibited in the orphans court of Cecil county, for probat, by the appellee* against which a caveat was entered by the appellants* and that pending the caveat, and after the depositions of several witnesses had been taken, an application was made to that court, on the part of the appellan ts, to direct a plenary proceeding by libel, and answer on oath, and to call a jury of twelve freeholders to their assistance* for the purpose of trying an issue, which was refused; and the ninth section of the act of February' 1777, ch. 8, on which the application was founded, being repugnant to, and repealed by, the act of 1798, ch. 101, the court did right in rejecting the prayer. But the court was clearly wrong in refusing to direct a plenary proceeding, and an issue’ or issues to be made up and sent to a court of law for trial on the application of the appellants, as directed by the sixteenth and seventeenth sections of the fifteenth sub-chapter of the act of 1798, ch. 101, which are imperative. The regular mode of proceeding in opposition to the admission of a will to probat, is by caveat; and it may often happen, (and probably most frequently does,) that the necessity for a plenary proceeding and a trial by jury, is only discovered after a part at least of the testimony is taken; and at any stage of the proceedings, before final adjudication, either party may require it, and the court is not at liberty to refuse it. The objection that an appeal will not lie in such a case as this, and that the record is not properly before us, cannot be sustained.- The language of the act of assembly is, “any person who may conceive him or herself aggrieved by any judgment, de.cree, decision or order, of the orphans court, shall have the liberty of appealing,” &c. emphatically giving an appeal from any decision of the orphans court; and it is quite clear that a refusal of a prayer preferred by a party to a contest in that court, is a decision of the court upon such prayer. The court therefore decrees, that the judgment of the orphans court of Cecil county, admitting to pr'obat the' instrument of writing purporting to be the last will and testament of índrew J. Peterson, be reversed, with costs to the appellants; and that a plenary proceeding, by bill and answer on oath, be had as prayed by the appellants, and an issue made up and sent to the county court of Cecil for trial; and that the orphans court of Cecil county. *177take such order in the premises as may be necessary and proper-for carrying this decree into full effect.

DECREE REVERSED, &C.