88 Md. 378 | Md. | 1898
delivered the opinion of the Court.
The appellant filed a caveat to the will of John A. McCambridge, which had been admitted to probate by the Orphans’ Court of Baltimore City and asked that issues be framed and sent to a Court of law for trial. The appellee filed an answer alleging that John McCambridge and others had filed a caveat to the will on the same grounds that were assigned in the one filed by the appellant and that issues were duly framed and sent to the Baltimore City Court, a trial of which resulted in a verdict in favor of the will, and the verdict having been certified to the Orphans’ Court of Baltimore City, judgment was finally entered thereon sustaining the will upon all the issues. The appellant then filed another petition asking leave to amend his caveat theretofore filed, by inserting the allegations therein made. In the proposed amendment it was admitted that the issues
It is well established in this State that when issues, sent to a Court of law at the instance of one interested party, have been tried and a verdict has been rendered sustaining the will, which is duly certified to the Orphans’ Court and probate granted in pursuance thereof, other persons cannot have issues framed embracing substantially the same questions, although they were not parties to the prior proceedings. Worthington v. Git-
It is true, however, that parties interested are not precluded from impeaching the probate of a will by reason of the fact that there has been a previous trial, if there has been fraud and collusion in obtaining a verdict on the issues (Worthington v. Gittings, supra), and it has been held by this Court that the Orphans’ Court can, on proper allegations and proof, set aside a judgment based on a verdict rendered in a Court of law on issues sent to it by the Orphans’ Court, when there has been fraud and collusion in obtaining the verdict. Munnikhuysen v. Magraw 57 Md. 172. But it was also held in Worthington v. Gittings, that in order to procure the revocation of the probate of a will, taken in solemn form, there must be a “ direct application for that purpose, and the fraud or collusion, with all the particulars, must be distinctly charged, as also the manner in which the Court was misled or imposed on; and such allegations must be fully and clearly supported by proof. The application must, moreover, be made within a reasonable time after the discovery of the facts which are supposed to establish the fraud; for if there be any unnecessary or unreasonable delay in making the application, the right to make it will be considered as waived.” Whilst it must be conceded that proceedings in the Orphans’ Court are not and need not be conducted with all the technical formalities that are usually required in Courts of law, there must be some regard for the form of the proceedings, even in that Court. It would be going a great way, and would have a tendency to confuse rather than simplify, to hold that a judgment of the Orphans’
The rule in Equity Courts is that where there has been apparent laches in the prosecution of the suit it is incumbent upon the plaintiff in order to repel the presumption of laches or unreasonable delay, to set up in the bill the reasons why the suit was not brought sooner, and if there be circumstances which.will excuse or explain the laches or bring the case within any exception, it is necessary that such excuse or explanation be stated in the bill. 12 Ency. of Pl. and Pr., 834. In this State this rule has been adopted and the objection can be raised by demurrer to the bill. Noble v. Turner, 69 Md. 519; Belt v. Bowie, 65 Md. 350. It is'quite as important to enforce such a rule in proceedings of this character in the Orphans’ Courts and as it is not the practice in that Court to raise such questions by demurrer it can well be done, as in this case, by a motion to dismiss the petition. Of course the Orphans’ Court can, where it is proper, prevent injustice from being done by allowing an-amendmeñt,'but the amendment proposed in this case' fell far short of-what the practice we are now'discussing requires, and we think the Court was right in dismissing the petition for this reason, 'as well as others we have' given, and its order must' be affirmed.
Order affirmed, costs above and below to be paid by the appellant.