47 A.2d 72 | Md. | 1946
Miss Elizabeth V. Denby, of Baltimore, died on April 23, 1944, leaving a purported will which was offered for probate in the Orphans' Court of Baltimore City by Fidelity Trust Company. On June 23, 1944, five next of kin, Henry S. Barrett, Frederick R. Barrett, Mrs. Florence Mills, Miss Mary Toner and Mrs. Florence Starlings, filed a caveat alleging (1) that the will was not validly executed, and (2) that it was revoked. The trust company answered that the will, written entirely in the handwriting of the testatrix, was executed in accordance with the law of Maryland, and had not been revoked. Frederick J. Singley, attorney, of Baltimore, also filed an answer to the petition in view of the fact that in the final provision of the will appointing the trust company executor, a line is drawn through the words "The Fidelity Trust Co." and above them are interlined the words "Frederick J. Singley, attorney." Lines have also been drawn through the first seventeen items of the will, and there are some interlineations. In item 18, which makes a bequest to the Epileptic Home at Port Deposit, Maryland, the amount of the bequest was apparently changed from $2,000 to $1,000. In item 19, giving the residue to St. Mark's English Lutheran *486 Church Trust Fund of Baltimore, and National Lutheran Home for the Aged, of Washington, a line is drawn through the word "Trust," and the word "Endowment" is interlined. Singley, in his answer, declares that the alteration is inoperative and Fidelity Trust Company has been validly appointed executor.
On May 15, 1945, the caveators asked the Orphans' Court to send five issues to a court of law for trial by a jury: (1) whether the will was signed by Miss Denby and attested and subscribed in her presence by two credible witnesses; (2) whether it was read to her before she executed it, (3) whether it was rejected by her, (4) whether it was revoked by her, and (5) whether it is in fact her will. On May 22, 1945, the trust company asked the court to send five issues: (1) whether the will was signed by Miss Denby and attested and subscribed in her presence by two credible witnesses, (2) which, if any, of the lines and interlineations were made before the will was executed, (3) whether the will was without lines and interlineations at the time it was executed, (4) which portions, if any, were revoked after it was executed, and (5) whether the text as it was at the time of the execution is her will. On December 21, 1945, the court refused the trust company's issues, and ordered that the following issues be sent to the Baltimore City Court for trial: (1) whether the will was executed by Miss Denby and attested and subscribed in her presence by two credible witnesses, (2) whether the will was revoked by her, and (3) whether it is in fact her will. The trust company is appealing from that order.
The Legislature of Maryland, in establishing the Orphans' Court system in the state following the adoption of the Constitution of 1776, empowered each Orphans' Court to direct any issue to be tried by plenary proceeding and to call a jury of twelve freeholders of the county to assist in the determination of the issue. Acts of 1777, Fed. Sess., Chap. 8. The plan was borrowed from the Court of Chancery. Pegg v. Warford, *487
The contention of the trust company is that, since the jury will be called upon to determine the validity of the will as a whole, they should also determine at the same time whether the lines and interlineations were made before or after the execution of the will. Ordinarily the legal effect of cancellations and interlineations *488
in a will is no part of the factum of the will, and is not determined by the probate of the will, but is a question of construction, which is not as such within the jurisdiction of the orphans' court. Ramsey v. Welby,
On this appeal the trust company maintains that the will should be probated in its original form without any lines or interlineations. There is no question that after a will has been properly executed, nothing can render it inoperative except a revocation of it. Brewer v. Barrett,
Order affirmed and cause remanded, the costs to be paid out ofthe estate.