This caveat case presents a hearsay question. The declarant, a legatee of one-half of the residuary estate, if any, under the challenged will, was neither personal representative of the decedent’s estate nor a participant in the caveat proceedings. The Court of Special Appeals held that a witness’s testimony, recounting a statement by the declarant, was substantively admissible in support of the caveat, as the statement of a party opponent. Merling v. Merling,
The caveat proceeding underlying the evidentiary issue involves the will of Sara E. Holliday (Holliday). While resid
In October 1986 Holliday, then eighty-four years old, required the removal of cataracts. She arranged with Raymond to live in his home in Joppa, Harford County, Maryland during the period of postoperative, in-home care. On October 31 Holliday executed a power of attorney to Raymond that had been prepared at her request by Maryland counsel. Shortly thereafter, Raymond, with the assistance of his brother, George Merling (George), managed Holliday’s affairs and arranged for her medical care.
On November 5, 1986, Holliday executed a new will, prepared by the same Maryland counsel (the Maryland Will). Under the new will, Holliday left her entire estate to Raymond and to George “share and share alike, one-half to each.” Raymond is appointed personal representative under the Maryland Will.
Holliday fell at Raymond’s home on December 15, 1986 and was taken to Fallston General Hospital. Examination revealed that she had suffered a stroke and that she had a brain tumor. She was transferred to a nursing home in Western-port, Allegany County, Maryland where she died on February 17, 1987. There was no immediate probate of the Maryland Will.
Maryland Code (1974, 1991 Repl.Vol.), § 5-207(b) of the Estates and Trusts Article (ET) provides that “[i]f [a] petition to caveat is filed ... after administrative probate, it has the effect of a request for judicial probate.”
Raymond, as personal representative of Holliday’s estate, filed an answer to the petition to caveat. Raymond, as personal representative, framed issues and requested their transmittal to a court of law for trial by jury. Raymond, as personal representative, was Joyce’s adversary in the trial of the caveat case. Raymond’s brother, George, the legatee of the other half of the residuary estate under the Maryland Will, did not answer the caveat petition and did not participate
The caveat case came on for trial before a jury in May 1993. Raymond moved in limine to exclude the testimony of a witness, Carla Cunningham (Cunningham), who had been a business partner of George. Joyce proffered that Cunningham would testify that George had indicated in 1986 that he and Raymond knew that Holliday was troubled by bad vision and almost incoherent when the Maryland Will was executed. Joyce further proffered that Cunningham would testify that George had said that Holliday was admitted to a nursing home in Westernport to discourage visits by Joyce and her children and discussions of Holliday’s will. The motion in limine was granted.
The jury’s verdict on the issues submitted to it was entirely favorable to Raymond and sustained the Maryland Will. Joyce appealed to the Court of Special Appeals contending, inter alia, that the Cunningham testimony had been improperly excluded.
The Court of Special Appeals reversed and remanded. That court considered three theories for the possible admissibility of the Cunningham testimony. A factor in each theory was whether George was a party to the caveat proceeding. First, the court assumed George was not a party, and it considered whether the Cunningham testimony would be admissible under the hearsay rule exception for statements contrary to the declarant’s pecuniary interest. That exception could not apply because there was no evidence that George was unavailable as a witness, and the hearsay exception for a statement against interest requires “that the declarant be unavailable at the time of trial.” Aetna Casualty & Sur. Co.
The intermediate appellate court, continuing to assume that George was not a party, next considered whether his statement was admissible through Cunningham against Raymond on the theory that Raymond and George were either co-conspirators or joint owners of any distribution to be made under the residuary clause of the Maryland Will. The Court of Special Appeals held that there was no probative evidence of a conspiracy, and Joyce has not sought review by this Court of that holding.
The Court of Special Appeals also held that “George and Raymond took separately, not jointly, under the will of Sara E. Holliday; the bequest of the residuary estate was not to the two of them jointly, but one-half to each of them.”
The Court of Special Appeals was correct in rejecting joint interest as a ground of admissibility. The privity or identity of interest exception is derived from the law of property. 2 McCormick on Evidence § 260, at 170 (J. Strong 4th ed. 1992). Wigmore explains that the exception is a “question of identity of title [that] depends obviously upon the substantive law of property.” 4 Wigmore on Evidence § 1081, at 201 (J. Chadbourn ed. 1972). ‘Where a title is created as a joint interest and by a single legal act, it would seem that the admissions of any one of the holders would be receivable against another as party.” Id. at 205 (footnote omitted). But, “[i]t seems also clear, and is conceded on all hands, that a codevisee or colegatee does not hold by a joint title, and
The third and final theory of admissibility considered by the Court of Special Appeals was whether George was a party to the caveat action so that Cunningham’s testimony would be admissible as the statement of a party opponent to Joyce. The court held that George was a party. It essentially reasoned that, if the caveat had resulted in nullifying probate of the Maryland Will, George would have had a right to appeal. The court considered Md.Code (1974, 1989 Repl. Vol.), § 12-501 of the Courts and Judicial Proceedings Article (CJ) as authorizing such an approach. That statute provides that “[a] party may appeal to the Court of Special Appeals from a final judgment of an orphans’ court.” In its Merling opinion the intermediate appellate court cited Davis v. Gerhard,
Stating that the holdings of Meyer and Davis required it to do so, the Court of Special Appeals in the instant matter adopted the following rule: “A beneficiary under a will who does not appear or respond to a caveat is nevertheless deemed a party to the caveat suit for all purposes, including admissibility in evidence of an admission by that party as an exception to the hearsay rule.”
Raymond petitioned this Court for the writ of certiorari, and Joyce, by a conditional cross-petition, raised the issue that we have decided, supra. We issued the writ, primarily to review the above-quoted rule announced by the intermediate appellate court.
In our opinion, it does not follow from the fact that an appeal is allowed to a non-participating legatee, aggrieved by an order of an orphans’ court, that a non-participating legatee is a party opponent, for the purpose of the hearsay exception at issue here, in a caveat case tried on issues transmitted to a court of law. CJ § 12-501 deals with orders of an orphans’ court. Davis v. Gerhard,
That the procedure is as above described was clearer in the predecessor statutes to CJ § 12-301. Following the revision of the statutes relating to appeals by Chapter 399 of the Acts of 1957, Md.Code (1957), Art. 5, § 2 provided:
“Any party may appeal to the Court of Appeals from a decision, determination or ruling of a court of law to which issues have been sent from an equity court or an orphans’ court to be tried.”
The predecessor to former Art. 5, § 2 was a statute originally enacted by Chapter 208 of the Acts of 1832. As amended, the 1832 enactment was Md.Code (1951), Art. 5, § 5. It provided:
“In cases of issues sent from the orphans’ court or a court of equity to a court of law to be tried, exceptions may be taken to any opinion given by the court before whom such issues shall be tried, and an appeal may be taken on such exceptions; and such appeal, while pending, shall stay all proceedings in the orphans’ court touching the matter of such issues.”
A long line of decisions of this Court recognizes that the appeal from the determination of issues transmitted by an orphans’ court to a circuit court is from the determination of the issues by the circuit court, and not from the judgment thereafter entered by the orphans’ court. See Grant v. Curtin,
Meyer v. Henderson,
The right of a legatee to appeal had been conferred by the Acts of 1818, Ch. 204, § 1. As codified at the time of the Meyer decision in Md.Code (1888), Art. 5, § 58, that statute read in relevant part: “From all ... judgments made by the orphans’ court, the party who may deem himself aggrieved by such ... judgment, may appeal to the court of appeals.” Meyer drew on Stevenson v. Schriver, 9 G. & J. 324 (1837), for the following construction of the 1818 enactment:
“ ‘The term party, in this section of the Act, is not used in a technical sense, necessarily importing a litigant before the Court in the proceedings in which the decree or order passed at the time of or antecedently to its passage; but may also mean one in whose interest the decree or order has a direct tendency to operate injuriously and who after*375 its passage may appear in Court and claim the privilege of appeal.’ ”
Meyer,
“Many, if not most of the orders of the Orphans’ Court, are wholly ex parte, and yet the right to appeal has never been denied to him who has sustained an injury thereby.”
9 G. & J. at 335. This sentence explains the reason for the liberal rule as to parties that applies to the appeal of orders of orphans’ courts.
The question, nevertheless, remains: “Was George a party opponent to Joyce in the trial of the caveat issues?” The discussion, supra, in addition to explaining why we are not persuaded by the reason given by the Court of Special Appeals for its “yes” answer, outlines our reasons for answering “no.” In relation to the general administration of a decedent’s estate, a caveat case is a plenary proceeding. ET § 2-105. Particularly where, as here, the issues of fact generated by the petition for caveat are transferred to a court of law, the proceedings bear major similarities to an independent unit of litigation. Conflicting resolutions of disputed facts are respectively advocated by the participants. Such caveat proceedings become actions in the circuit court, generally subject to Title 2 of the Maryland Rules of Procedure. Rule 1-101. When such a caveat proceeding comes on for trial, the proof is subject to Title 5 of the Maryland Rules of Evidence. Id. Applying here the analogy to civil trials, we would ordinarily decide applicability of the hearsay exception under consideration by identifying Joyce’s adversary in the litigation. Here the only adversary was Raymond, as personal representative of Holliday’s estate.
We do not believe that Raymond’s role as personal representative of Holliday’s estate makes George, as a legatee, in some way constructively a party opponent to Joyce. The role in a caveat case of the personal representative depends upon when the caveat is filed. If a caveat is filed before probate, the caveat acts as a stay pending determination of the issues;
Indeed, where the will had been admitted to probate, it is not only the executor’s duty to defend the interests of the estate, but it is procedurally improper for the caveator to designate the legatees as parties to the caveat proceedings. Little Sisters of the Poor v. Cushing,
A. Gibber, Gibber on Estate Administration § 2.59 (3d ed. 1991) (Gibber) discusses rulings by the Orphans’ Court for Baltimore City in In re Estate of Cole, Estate No. A-23367 (reported in Baltimore Daily Record May 5, 1985). In that case the Orphans’ Court for Baltimore City concluded:
“1. The personal representative is the proper representative of both the legatees and the estate.
“2. After probate, a caveator cannot make a legatee a party defendant.
“3. A legatee under a contested will cannot be made a party for purposes of filing interrogatories.
“4. A legatee may petition the court to be made a party defendant.”
Gibber at 2-70.
Browne v. Browne,
The decision of the caveat issue is binding and conclusive upon all interested persons whether they were parties to the caveat proceeding or not. McDaniel v. McDaniel,
Pleasants v. McKenney,
Although George could have obtained an order from the orphans’ court designating him as a party defendant in the trial of the transmitted issues, or, although George likely could have achieved party status by answering the petition to caveat and thereafter participating as a defendant in the caveat proceedings, he did neither. We hold that, under these cir
In light of this holding, it is unnecessary to decide whether, if George had been a party, his statement would have been inadmissible for any and all substantive purposes, because of its prejudicial effect on Raymond, a non-joint co-legatee, or whether the statement would have been admissible solely against George. As to the former, see Belfield v. Coop, 8 Ill.2d 293,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT AFFIRMING THE JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT, JOYCE MERLING.
Notes
. A judge of the Circuit Court for Harford County, sitting as the Orphans' Court in the matter of Holliday’s estate prior to the caveat trial, had filed a written opinion rejecting a jurisdictional challenge by Joyce. That opinion, in part, said:
"In early 1987, [Raymond], acting as his grandmother’s attorney-in-fact, sold her house in Scottdale for $10,000.00 to one Carol L. Merling (the record does not show her relationship, if any, to the Decedent). He also sold all of the Decedent’s tangible personal*368 property and deposited her funds in the accounts in Maryland in which he had named himself and his grandmother as joint owners.”
. Title 6, "Settlement of Decedents’ Estates,” Chapters 100 through 500 of the Maryland Rules of Procedure took effect and applied to all estates of decedents opened on or after January 1, 1991.
. This case was presented to the Court of Special Appeals on an agreed statement of facts pursuant to Maryland Rules 8-207(b) and 8-413(b).
. The Court of Special Appeals held that Joyce’s objection to this ruling was preserved. That holding is not before us.
. Although the Maryland Rules of Evidence were not effective until July 1, 1994, "Rule 5-804(b)(3) is declarative of the Maryland case law.... ” L. McLain, Maryland Rules of Evidence § 2.804.4.c.iii, at 283 (1994).
. Even if Joyce had successfully demonstrated that George and Raymond took the residuary estate as joint owners, the victory seemingly would have been short lived. The May 1993 trial of this caveat case was governed by the Maryland common law of evidence which recognized the joint owner-joint obligee exception to the hearsay rule. See McBriety v. Phillips,
. ET § 2-105 in part reads:
“(a) Determination of an issue of fact.—In a controversy in the court, an issue of fact may be determined by the court.
"(b) Transfer of determination to law court.—At the request of an interested person made within the time determined by the court, the issue of fact may be determined by a court of law. When the request is made before the court has determined the issue of fact, the court shall transmit the issue to a court of law.”
. On a motion for reargument, it developed that the standing issue had, in fact, been preliminarily decided.