| Md. | Jul 15, 1879
delivered the opinion of the Court.
This is an appeal from the Orphans’ Court of Baltimore County. It appears by tbe record that David S. Sumwalt died on the 4th day of November 1878, leaving a paper, purporting to be his last will bearing date the 16th day of October 1850.
Before the alleged will was offered for probate, Samuel Sumwalt the brother of the deceased filed his petition in the Orphans’ Court, alleging that he has been advised that Elizabeth Sumwalt, widow of the deceased, who for the last eighteen years of his life, lived separate and apart from him under a deed or agreement for-separation, has threatened to exhibit and propound for probate, a certain paper-writing purporting to be a last will and testament of said David, and the petitioner being desirous of contesting the validity and sufficiency of the alleged testamentary paper, if the same should be offered, filed his caveat thereto, and prayed that it may be inquired and determined whether said paper-writing is in truth and fact the last will and testament of David S. Sumwalt, and (if the same should be found to have been executed by said deceased, which is not admitted,) whether or not the execution of the same was procured by fraud or undue
On the 27th day of November 1878, Mrs. Sumwalt, the widow filed in tire Orphans’ Court, the will of her late husband, devising to her all his estate and property and appointing her executrix.
On the 4th day of December she filed her answer to the petition and caveat of Samuel Sumwalt—alleging that the will was duly executed, and denying that the execution of the same was procured by fraud or undue influence practiced upon the testator, or that the same had been revoked or annulled by him, or that he was in any manner prevented by any fraud or concealment of the respondent from cancelling the same.
On the same day a petition and caveat was filed by Joshua B. Sumwalt and others, next of kin to the deceased, alleging that the said testamentary paper, if it had ever been executed by the deceased, (which the caveators do not admit) had been subsequently wholly revoked and annulled.
A petition was then filed by all the caveators, praying that certain issues proposed by them, should be sent to a Court of law for trial. These issues did not involve the question of the execution of the paper by the deceased. They were as follows:
1st. Was or not the execution of the said paper-writing, dated October 16th 1850, and purporting to be the last will and testament of the said David S. Sumwalt procured by undue influence practiced upon him ?
2nd. Was or not the execution of said paper-writing, dated October 16th 1850, obtained from the said David S. Sumwalt, by the exercise of a dominion or influence by some person or persons, which prevented the exercise of a sound discretion, on the part of said David S. Sumwalt ?
4th. Was or not the said paper-writing, dated October 16th 1850, and purporting to he the last will and testament of David S. Sumwalt, revoked'by an indenture dated the third day of October in the year eighteen hundred and sixty, made between the said David S. Sumwalt and Elizabeth Sumwalt, his wife, of the first part, George W. Davis, Trustee, of the second part, and George H. Brice and Charles W. Ridgely of the third part ?
5th. Was or not the said paper-writing, purporting to he the last will and testament of the said David S. Sumwalt, dated October 16th 1850, revoked by an indenture dated the fifth day of June, in the year eighteen hundred and fifty-one, made between the said David S. Sumwalt of the first part, and George W. Davis of the other part?
6th. Was or not the said David S. Sumwalt prevented, by the fraudulent concealment by any person or persons, of the said alleged will of him, the said David S. Sumwalt, dated October 16th 1850, from revoking the same, by burning, cancelling or otherwise ?
The caveatee objected to the second and sixth issues; and proposed five issues in lieu of those suggested by the caveators. Of these the first, second, third' and fourth were identical with the first, third, fourth and fifth offered by the caveators.
The caveatee objected to the fifth issue proposed by the caveators as wholly irrelevant and improper ; but in the event of this objection not being sustained, she proposed in lieu thereof the following :
5th. Was or not the said David S. Sumwalt prevented from revoking said alleged will, by burning, cancelling, tearing or obliterating the same, by the fraudulent concealment of any person or persons, and if so, was such
The Orphans’ Court by its order granted the six issues, as prayed by the caveators, and refused to grant the fifth issue as proposed by the caveatee, and from that order the present appeal was taken.
The proceeding in this case is under Art. 93, sec. 250, of the Code, which requires the Orphans’ Court, in all cases of controversy therein, if either party requires it, to direct an issue or issues to be made up, and sent to any Court of law convenient for trying the same.
The obvious purpose of this provision as said in Cain vs. Warford, 3 Md., 462, and Pegg vs. Warford, 4 Md., 393, is “ to enable the Orphans’ Court to advertise itself of the real facts of the case.” These when found by the jury are conclusive upon the Orphans’ Court, which has no discretion, but must enter the judgment in conformity to the finding of the jury. Pegg vs. Warford, 4 Md., 394; Brown vs. Brown, 22 Md., 110; Waters vs. Waters, 28 Md., 24.
In framing issues it• is the duty of the Orphans’ Court to present the questions of fact in dispute, and to be determined by the jury, in a plain and clear way; there is obvious impropriety in multiplying the issues unnecessarily, and especially in presenting the same substantial question in two separate and distinct issues. In Pegg vs. Warford, 4 Md., 385, and Warford vs. Van Sickle, 4 Md., 397, it was decided that after issues had been awarded at the instance of a party, it was error to award the same issues at the instance of another party, and that the latter was a void act and of no effect. This decision was made with reference to a case where caveats to a will had been filed by different parties; but the same objection' applies, although perhaps not with the same force, to awarding two distinct and separate issues, in the same case, presenting substantially the same question. This objection
The degree and kind of influence, which if exerted upon a testator, will vitiate his will, is well understood and has often been defined by the Courts,
We do not mean to enter upon a definition of it here, to do so would be out of place on this appeal. It is sufficient to say that the question to be answered by the jury on this subject is clearly and sufficiently presented by the first issue, and it was error to grant the second.
With respect to the other issues, we have to say that there being no dispute as to the execution of the will, the only questions raised by the caveat are two; first, whether its execution was procured by undue influence, and secondly, was it afterwards revoked or cancelled ?
These questions are fully and distinctly presented by the first and third issues proposed by the caveators ; and for the purpose of a trial of the questions involved, these are all the issues which we think are proper to be granted.
The questions proposed to be raised by the fourth and fifth issues, as to the effect of the deeds therein mentioned, and whether they operated to revoke the will, are questions which arise under and are properly presented by the third issue.
So with respect to the sixth issue as proposed. That amounts to no more than a question whether the will had been cancelled or revoked. Now what effect might be produced by a fraudulent concealment of a will, to prevent its being cancelled or destroyed, if that should be shown by the evidence, we think it would be quite premature, if not improper, now to express any opinion. Whether that fact could operate as a revocation, is a question which will properly arise under the third issue, that is to say, was the will revoked, after the execution thereof.
We have carefully examined the several cases which have been before this Court, involving the question of framing issues in the Orphans’ Court, and do not think that any of them have conclusively settled the practice in favor of the form of the several issues proposed by the caveators in this case. The particular objections which have been urged by the appellant in this case, do not appear to have been made or considered in any case to which we have been referred.
In our opinion, the correct rule to be observed, and the one which will best subserve the purposes of justice, is to grant no more than one issue presenting the same substantial question, and secondly, not to multiply the issues unnecessarily, and to grant such only as distinctly present the real questions in dispute.
We think in the present case the first and third issues prayed by the caveators sufficiently present the questions in controversy, and we shall therefore reverse the order of the Orphans’ Court and remand the case for further proceedings in accordance with the views expressed in this opinion.
Reversed and remanded.