44 A.2d 446 | Md. | 1945
John George Ebelke died December 29, 1943, leaving a purported will and codicil which were duly admitted to probate by the Orphans' Court of Baltimore City. A petition and caveat was filed by certain relatives alleging among other things that the execution of both these paper writings was procured by undue influence exercised and practiced upon the decedent. The executor *172 filed an answer denying these allegations, to which replication was filed, and thereafter the Orphans' Court signed an order framing issues and sending them to the Superior Court for trial. The case was duly set for trial in the Superior Court on November 1, 1944, but it being represented to the court that the appellees proposed to file a petition for additional issues in the Orphans' Court, the case was postponed. On the same day the appellees filed an additional petition and caveat in the Orphans' Court, in which they alleged that since the filing of the original petition and caveat, they had discovered evidence that items 3, 4, 5, and 18 of the will, and the residuary clause of the codicil, were procured by undue influence. The appellant filed an answer denying the allegations of undue influence and prayed the dismissal of the additional petition and caveat. The appellees then filed a petition praying that the additional petition and caveat be treated as an amendment to the original petition and caveat, and obtained an order of Court granting this prayer. A petition framing two additional issues was then filed by the appellees, and an answer objecting thereto was filed by the appellant. On March 5, 1945, the Orphans' Court passed an order granting the additional issues and sending them to the Superior Court for trial. These issues raised the questions as to what parts, if any, of the paper writings purporting to be the will and codicil, respectively, were procured by undue influence. The executor appeals to this Court from the order of March 5, 1945.
In the purported will the testator made specific bequests in items 1 and 2 to his brother Joseph and his nephew Henry DeBoer. By the third item, he made a bequest to his niece Lilliam M. Schneider; by the fourth and fifth items, he devised his dwelling and a ground rent to Lillian M. Schneider and her husband. By item 18, he left the residue of his estate one-half to his brother Joseph and one-half to his niece Lillian M. Schneider and her husband. In the twelve other items he made bequests to certain charities. *173
In the purported codicil, after reciting the death of his brother Joseph, he revoked items 1 and 18, and substituted a residuary clause leaving one-third of the residue to his nephew Henry DeBoer, one-third to his niece Lillian M. Schneider, and one-third to her husband.
Under the original issues as to undue influence, it would be incumbent upon the jury to find either that the entire will and codicil were valid or that they were invalid, whereas under the additional issues the jury could find that some items were valid and others invalid, according to the evidence produced. Thus the additional issues are broader than the original ones. It is true that under the additional issues the jury might find all parts of the will and codicil invalid, and in that event the answers to all the issues would reach the same result, but this possibility presents no practical difficulties. Even in a case where issues are completely duplicitous the answers can be molded, under appropriate instructions from the trial court, so as to effectuate the jury's ultimate finding of fact. Holland v.Enright,
The propriety of framing issues in the Orphans' Court as to partial invalidity was recognized by this Court in the case ofMunnikhuysen v. Magraw,
In the case of Griffith v. Diffenderfer,
In the case of Fisher v. Boyce,
In Lyon v. Townsend,
These rulings are in accord with the great weight of authority in other states. In 1 Page on Wills (Lifetime Ed.), Section 193, p. 390, it is said: "Where it can be shown that a part of the will was caused by undue influence, and that the rest of the will was not caused thereby, and the part of such will caused by undue influence can be separated from the rest, leaving it intelligible and complete in itself, it is held in most states, that only such part of the will as is caused by undue influence is invalid, and the rest is valid." See the cases collected in a note, 69 A.L.R. 1129.
The appellant does not challenge the authority of the Orphans' Court to frame issues as to partial invalidity in an appropriate case, but he contends that the issues must conform to the pleadings in the Orphans' Court, and that the appellees cannot attack the testamentary dispostions both in whole and in part; and if the attack is upon only a part, the particular part must be specified. He further contends that after transmission of issues the Orphans' Court cannot revoke or modify them, and that the petition for additional issues came too late.
This Court has recognized that issues must be framed in accordance with the matters set forth in the petition and answer.Hamill v. Hamill,
This Court has said that issues cannot be revoked or modified by the Orphans' Court after their transmission to a court of law for trial, on the ground that the functions of the Orphans' Court are suspended until the verdict of the jury is certified and returned by the trial court. To determine the scope of this rule, it is necessary to examine the cases narrowly. Because of the division of authority in this field between the Orphans' Courts and the courts of law, procedural distinctions have been drawn in regard to each step in the process of adjudication. Framing of issues is the sole concern of the Orphans' Court, with a direct right of appeal to this court; the trial court has no authority to alter the issues submitted to it. On the other hand, after a finding by the jury in the trial court, subject to a further right of appeal, the Orphans' Court is bound to put it into effect.
In Pegg v. Warford,
In Cook v. Carr,
In Tabler v. Tabler,
The Tabler case definitely holds that an issue as to partial invalidity cannot be passed upon by a different jury, after trial of an issue as to invalidity as a whole, but the case does not hold that an issue as to partial invalidity is not sufficiently distinct and severable to permit it to be submitted to the same jury. It cannot be denied that the additional issues granted in the order appealed from would have been proper issues if they had been framed pursuant to allegations in the original caveat. We see no objection to their being brought into the case pursuant to amendment of the original caveat before trial of the issues originally framed.
Order affirmed, with costs.