Price v. Moore

21 Md. 366 | Md. | 1864

Goldsborough, J.,

delivered the opinion of this Court:

The appellant on the 6th day of May 1857, filed in the Orphans’ Court for Baltimore City for probate, a paper writing purporting to be the last will- and testament of Miss Charci-lla Owings. On the 8th day of May, Mrs. Frances Taylor, alleging herself to be a sister and one of the next of kin of Mrs. Owings, filed her petition or caveat against the above.paper writing, denying that it was the last will and.testament of the deceased, and praying that it be not admitted to probate. To this caveat the appeh. lant filed his answer.

Before aav adjudication however, the caveator, Mrs. Taylor, prayed the Court to frame issues and transmit them to the Superior Court of Baltimore City, and the issues named in the record were accordingly framed and transmitted, and it was further ordered, that Mrs. Taylor he plaintiff, and John O. Price be defendant.

These issues were subsequently removed for trial to the Circuit Court for Baltimore County, and on the 25th day of January 1859, the following entry appears on the docket of this last named Court: “Dismissed, order of plaintiff filed.” On the 26th day of March of the same year, the Orphans’ Court, reciting in their order or decree that the caveat had’ been dismissed, admitted to probate the paper writing purporting to be the last will and testament of Miss Owings. On the day of this decree, the appellees came into the Orphans’ Court and filed their petition, alleging that the paper writing which had been admitted to probate, was not the genuine last will and testament of Miss Owings, and prayed that the probate thereof then granted, might be reconsidered, and that the issues suggested by the petitioners and appended to their petition, be framed and sent to the Superior Court of Baltimore City for trial. Which application was granted by the Court, and from its order this appeal was taken.

The appellant resists this order, and contends that the probate of the will was had in solemn form on proceedings which put the validity of that paper in issue, and that it was therefore final and conclusive.

On the other hand the appellees insistthat it was allowed, not upon the plenary proceedings of Mrs. Taylor, but in common form without contest, and under these circumstances, that the Orphans’ Court was authorised by the Act of 1798, ch. 101, sub-ch. 2, sec. 13, to direct other issues to be made up upon the application of q,ny other party interested in contesting the validity of that paper. The material question, whether the will was admitted to probate in common or solemn form, is presented by these propositions.

The 17th sec., sub-ch. 35, of the above mentioned Act, authorises the Orphans’ Court in cases of contest by plenary proceedings, to give judgment or decree upon bill and answer, or on the bill, answer and depositions or finding of a jury; but the 13th sec., sub-ch. 2, provides for the admission of a will to probate without contest, and in such case, authorises the Court on petition of a party interested, to revoke the letters and direct further proceedings. This record shows .that Mrs. Taylor instituted proceedings for the purpose of contesting the validity of the paper admitted to probate, but it also appears that these proceedings were terminated without the finding of a jury, or any adjudication of the questions presented; and that she dismissed them, thereby abandoning the contest and ceasing to be a party thereto. The decree or order allowing the probate, not only recites the fact that her proceedings, including the caveat, were dismissed, but it assumes that they were no longer before the Court for any purpose whatever. In that respect we think the decree of the Orphans’ Court free from objection, for we have said in the case of Price vs. Taylor, ante p. 356, that the dismissal of issues necessarily results in a return of the case to the Orphans’ Court, where all persons interested would have the right to become contesting parties; and further, that the effect of Mrs. Taylor’s order to dismiss the issues, as to the validity of this will the.n .pending, was to place the case precisely as it was before she filed her caveat. We are clearly of opinion that the probate of. the will was had in common form, and within the meaning of the Act, without contest. Having ■reached that conclusion, it follows as a matter, of course,, that it was competent for the Orphans’ Court, under the 13th section, sub-ch. 2, to revoke and annul the probate and direct issues to be made up, for the purpose of ascertaining whether the paper propounded, was legally executed, and a valid will.

(Decided May 13th, 1864.)

The order from which this appeal was taken, will be affirmed and cause remanded.

Order affirmed with costs to appellees.