62 Md. 525 | Md. | 1884
delivered the opinion of the Court.
The will of John T. Johns having heen offered for .probate in the Orphans’ Court of Baltimore County, the same was caveated by the heirs-at-law of the alleged testator, -and issues were framed and sent to a Court of law for trial, to test the validity of the will, and whether the same should he admitted to probate. Pending this contest, the caveators, the appellees in this Court, filed their bill in -equity in the Circuit Court for Baltimore County, asking the appointment of a receiver to take charge of the real •estate, and manage the same and receive the rents thereof, until the pending controversy respecting the validity of the will could be settled.
All parties in interest were brought in, and answered. By their answer, they renew their denial of the allegations of the caveators, affecting the validity of the will under which they claim, but while they assert the validity ■of the will, they express willingness “to agree to any -arrangement that may be necessary and proper to protect their interest pending said litigation, and inasmuch as the ■controversy may deter tenants from paying rents, and otherwise prove injurious to the property, unless the same be taken in charge by the Court, they consent to the appointment of receivers to preserve and manage the prop-erty,” &c. The answer asserts the possession of part of the estate, viz., the mansion property of the deceased, by John Johns, who had taken possession thereof after the death of the testator, under his claim through the will. But by agreement, under which a decree appointing receivers was passed, this part of the real estate was put into the possession of the receivers also at an agreed rental. The agreement for the order appointing receivers, is as follows: “It is agreed by all parties interested in this case that the Court shall pass an order on the bill filed, appointing Stewart Brown and R. R. Boarman receivers,.and that said order shall include all the real estate of the decedent,
On the 28th of June, 1883, the complainants filed their petition for the discharge of the receivers, on the ground that a verdict had been rendered in their favor and against the'will. This petition being premature, because the Orphans’ Court had not finally adjudicated the case, no action was taken, and on the 15th of November following a supplemental petition was filed, alleging the final action of the Orphans’ Court in refusing probate to the will, after the verdict upon the issues had been certified to that Court, and praying the discharge of the receivers. The appellants also filed a petition alleging that their claim was a question of pure legal right, and asking that the Court grant them leave to sue the receivers conjointly with the parties complainant, in an action of ejectment • and in effect asking the retention of -the receivers for that purpose, and to await the issue of such action of ejectment. This application was. resisted by the heirs-at-law, who' contended that their suit was for the protection of the property pending the controversy in the Orphans’ Court, and only during such controversy ; and insisted that now that the will had been refused probate they were entitled to he restored to the possession as prima facie, at least, entitled to the property. This view the Court adopted and
The main question which is raised in this case is of great interest and importance, and has never been the subject of express decision in this Court, if indeed it has ever been raised in the State. It may he stated thus: Does the refusal of probate to a will of real estate, after issues framed in the Orphans’ Court for trial before a jury in a Court of law, and a verdict thereon adverse to the will, effectually conclude the devisee ? or may the devisee, not
Before the Act of 1831, chapter 315, the probate affected: only wills of personal estate. The Act of 1198 made no provision for wills of real estate being proved or contested hut that Act did make provision for the custody of such wills hy the Register of Wills, and for the punishment of' any person who should fail to deliver a will left in his custody, to the Register within a certain number of months.. If a will of personal estate was refused probate, it could, not he offered for probate, hy express provision of the statute, in any other county; hut the right of appeal was. given, and the decision of the appellate tribunal was made conclusive. Uniform decisions in this State under the Act of 1198 have held the rejection of probate of wills of personal property unappealed from, or appealed from and affirmed, conclusive against the will and the rights of any person dependent upon it. The question here is, shall the-same rule he applied to wills of real estate under the Act of 1831, or the Code which retains its provisions, and supersedes all other law on the subject? Sections 310 and 311 of Article 93 of the Code of Public General Laws, read as follows: “310. Probate of wills may be made in the following manner that is to say: 311. The Orphans’Courts, and in their recess, the Registers of Wills in this-State are authorized to take the probate of any will, testament, or codicil, whether the same has relation to real or personal estate, or to both real and personal estate.” Sections 315 to 320, inclusive, provide for notice, caveat, and contest in the Orphans’ Court, and sections 249 and 250 provide for issues to he sent toa Court of law and trial before a jury of the grounds on which probate is resisted hut the final decree, in the Orphans’ Court after such issues are tried and result is certified, is necessary to se
The very question having been distinctly presented to a jury in a way for which express provision has been made in the statute, and on that verdict a Court of competent jurisdiction having made a decree against the will, by the ordinary rules of law it ought to be conclusive. In the Duchess of Kingston’s Case it was distinctly laid down, that the judgment of a Court of concurrent jurisdiction directly upon the point, is as a plea in bar or as evidence conclusive between the same parties upon the same matter in another Court; and that the judgment of a Court of exclusive jurisdiction directly upon the-same matter between the same parties, is conclusive upon the question arising incidentally in another Court for a different purpose. 11 Harg. State Trials, 261. We will consider whether this is an exception to these general rules. No other mode of probate is provided for except that in the Orphans’ Court. It is given the jurisdiction expressly; and both wills of
Section 323 of Article 93 provides that “ Any probate^ of a will or codicil taken by the Orphans’ Court or Register of Wills, so far as the same concerns real estate, shall be taken only as prima facie evidence of such will or codicil.” The appellants rely bn this section, and argue that the principle of mutuality requires that a decree adverse to the will should be no more conclusive in favor of the heirs than a decree in favor of the will should be against them. That may he equitable as an abstract proposition, but the question is, did the Legislature so intend? The qualification is express and without ambiguity. The appellees insist that it is a sufficient answer to the appellants” contention, that there is no corresponding exception made in favor of the devisee. If there had been it seems to us, that it would have made these minute provisions respecting probate or its refusal a futile mockery. Probate being provided for and its contest carefully secured, it must have been intended to make probate a condition precedent to the instrument being used as a will for any purpose. If probate was not necessary why not sue in
The office of a proviso in a statute is either to restrain its general application or except something from it and exclude misinterpretation. Potter’s Dwarris on Statutes, 118 and note. The same authority says it is always to be strictly construed. ' This provision is in the nature of a proviso, and must be construed accordingly, by giving it a strict construction and restricting the exception within the limits which the language naturally imports. The statement that in a will of lands the probate thereof shall only be prima facie can mean but one thing, and it would be dis
The creation of a Court for a particular purpose, and the clothing it with all the powers necessary to its jurisdiction over the subject and the parties interested, without giving concurrent jurisdiction to any other tribunal, by the familiar maxim, “ designatio unius, exclusio est alterius,” would seem to exclude the jurisdiction of any other than the one specially authorized. Judge Story in Tompkins vs. Tompkins, (1 Story, 547-554,) in discussing the like question arising under the law of Rhode Island, says, the giving of jurisdiction to a tribunal to take the probate of a will, notwithstanding no exclusive words-were used in the statute, operated to make the jurisdiction of the authorized tribunal exclusive and its decisions conclusive on the question. Such decisions, he says, are of like nature with proceedings in rem, “ and necessarily conclusive of the matter in controversy for the common-safety and repose of mankind.” The law of Massachusetts contains no exclusive words, yet the jurisdiction of Courts of probate is held to be exclusive. 1 Story Rep., 554, and Osgood vs. Breed, 12 Mass. 525. In Greenleaf’s Evidence, 2 vol., sec. 672, it is said that this is the generally accepted law in those States of the Union where Courts of probate are established. Counsel for the appellants rely on Bonsal vs. Smith, 5 Rawle, 80, and other cases in Pennsylvania which have followed it, because of the eminence of the Court pronouncing that decision and
We can see no good reason for making the refusal of probate, under the statute as it now stands, conclusive upon a legatee and not conclusive upon the devisee. It requires the making of an arbitrary and indefensible distinction, not suggested by any language of the statute. In this instance the conclusion was reached by a jury, and the Court, after fullest investigation touching the testator’s capacity to make a will, with all the parties interested under that will, and. all the heirs-at-law parties to the proceeding and represented. It ought to be conclusive upon all. There should be an end of litigation on that question. If it were not so, at any time within twenty years, when the witnesses upon whose testimony the will was rejected may have died, the question might be raised by ejectment against the heirs-at-law. We can not but think, the fact, that though more than a half century has elapsed since the Act of 1831 was passed, no case seems to have been brought based on a different view, is an argument in favor of the soundness of that which we take.
To adopt the view contended for by the appellants’ counsel, would not only require a most unnatural construction of the legislation on the subject, but would bring •about a very singular and anomalous condition of things if the plaintiffs in an ejectment suit should succeed. A will would he given efficacy which had been refused probate
It only remains to determine whether there was error in the order restoring possession to the heirs-at-law. When the receivers were appointed, the will was not proven; its probate was contested, in regular way. The devisees were in possession of none of the property except the homestead, which the record shows that John Johns had taken possession of and was in possession of, when the application was made for the appointment of receivers. The Court took the custody and control of all the estate, including that of which John Johns had taken possession, and he rented it from the receivers. The decree of the Court undertakes to decide nothing finally as between the parties respecting their title; but it recognizes the heirs as apparently entitled inasmuch as the decision that has been had, in a Court of competent jurisdiction, was against the will’s validity; and in so doing the Court was fully justified by authority. The case of Rachel Colvin, 3 Md. Ch. Dec., 278, and Hannah K. Chase’s Case, 1 Bland, 213, seem to sustain the Court’s view; and Chancellor Hart’s decision in Lloyd vs. Trimleston, 2 Molloy, 81, is
Affirmed and remanded.