| Md. | Jun 13, 1860
delivered the opinion of this court.
This record shows that Isaac Hesson, one of the executors of Peter Hesson, presented a claim against his testator, which was objected to by Joseph Hesson, his co-executor. The orphans court allowed it as a credit in Isaac Hesson’s account as executor, and on appeal this court reversed the order of the orphans court for want of proof of the claim. See 14 Md. Rep., 8. When the record was remanded the present appellants, being some of the legatees, filed their petition objecting to the claim, on the ground that it was not due and owing, that it was false, stale and spurious, and barred by ■ the Statute of Limitations, and praying that the claimant might be required to prove his demand and that issues might
On the same day that this petition was filed, 11th of July 1859, Joseph Hesson, as legatee and co-executor, exhibited a petition, referring to his former petition, which was before this court on the appeal referred to, and asking that issues might be framed to test the validity and existence of the claim. The objections stated are of the same character with those relied on by the present appellants. To this petition there was an answer filed on the 22nd of July, in the recess of the court, but not verified by affidavit, and' on the 26th of July, the day the order was passed on the application for issues by Yingling and Everly, and without a tender of issues on the part of Joseph Hesson, the court directed that his petition and proceedings should be consolidated with those on the part of the present appellants, that the same issues should be sent for trial, and that Joseph Hesson be admitted as a defendant to be heard on that trial, so as to have one trial and verdict. Prom these orders the present appeal is taken, on the part of Yingling and Everly, but Joseph Hesson does not unite in the appeal.
The first point of the appellants objects that the court did not dispose of the case in full; that is, that the order does not notice the fourth issue tendered. If the court had expressly refused this issue there would have been no reason for this suggestion, and then we should have had another, based on the refusal. As we view the case the question is the same in effect and substance, whether presented in one way or the
We think that this proposition cannot be maintained. The object appears to have been to present lapse of time as a legal bar to the demand, as effectually as if pleaded in an action at law. But the law is well settled that this cannot be done in the orphans court, though “it may look to the fact of such bar, as evidence to be weighed with all other testimony in relation to any claim, in determining on its justice.” 1 Gill, 360, Bowling vs. Lamar. As the jury is substituted in aid of the court to ascertain the facts, and the proceeding is to be considered all the while as within the probate powers of the orphans court, (1 Gill, 29; 14 Md. Rep., 532,) the court of law, to which the issues may be sent, must decide on the same principles and rules that govern the orphans court. Hence, whatever benefit the appellants could have from a reliance on lapse of time in the orphans court, they may avail themselves of when the issues are tried at law, which involve the existence, legality and justice of the claim.
In cases of this kind we think the party propounding the claim should appear as plaintiff in the trial of the issues. The party applying for the issues is not entitled to be plaintiff, though in one sense he may be considered actor in the proceeding. Here the matter to be established is the appellee’s claim against his testator. He could not sue himself, nor initiate proceedings with a view to issues at law. He did all that, in the first instance, the law requires; he proved his claim and offered it for allowance in his account as executor, and when contested he ought not to be deprived of the advantage of position which the burden of establishing the claim would give any other creditor of the estate. The cases referred to by the appellants do not apply as closely as their counsel contended they do. In Brooke vs. Townshend, 7 Gill, 25, the factmn of the will was not in issue. Conceding its existence, but denying its validity, the caveators assailed it, on the
We are of opinion that the appellants have no cause of complaint., in that the proceedings on Joseph .Ilesson’s application were united with theirs. If an answer under oath had been filed, and issues tendered, we suppose they would have been the same, or closely similar, in both cases. One petition is almost a copy from the other as to material averments; and, presenting the same objections to the claim, we cannot perceive how different issues could have been framed. This being so, the court, would have ordered a joinder of parties with a view to one trial on one set of issues. Pegg vs. Warford, 4 Md. Rep., 386.
If any one had cause of complaint because the court, without waiting for a sufficient answer to Joseph Hesson’s application for issues, gave him the benefit of the issues previously framed, we suppose it was the appellee himself. It appears, by the former petition of Joseph Hesson, 14 Md. Rep., 8, as well as by the present one, that the object of these parties was the same — the defeat of this claim by alleging the same defences against its allowance — and while a union of parties to this end might injure the claimant, we do not perceive any reason why these appellants should object to it.
Order affirmed with costs.