Associated Professors of Loyola College v. Stuart

⁹⁷ Sloan, J., delivered the opinion of the Court. The question here is the right of certain caveators to contest the will of Frances Stuart, who died January 19th, 1940. The will was executed January 13th, 1940. From an order dismissing all of the objections to caveators, this appeal is taken by the • Associated Professors of Loyola College in the City of Baltimore, Inc., and the Woodstock College of Baltimore County, both corporations, which were made defendants in the caveat proceedings directed to be sent on issues to the Superior Court of Baltimore City.

Those who filed caveats were Georgia C. Wills (not a party on this record), the Congregation of the Mission of St. Vincent de Paul Society of Baltimore, Michael J. Curley, Roman Catholic Archbishop of Baltimore, and The Redemptorists, all corporations, Agnes Stuart, Blanche Stuart, and John E. Lechthaler, Dorothea Armiger, Mary McCloskey, Marguerite Stuart, and David Stuart, all of whom were beneficiaries under a will of September 8th, 1937, which was revoked by a latter will, but was not destroyed. No objection was made to the granting of issues to John E. Lechthaler, Dorothea Armiger, Marion McCloskey, Marguerite Stuart, and David Stuart, whose interests as legatees under the first will were lessened or destroyed by the later will. The objection to the caveats of Agnes Stuart and Blanche Stuart was on the ground that they benefitted by the second as compared with the first will. The contention against allowing the Congregation of the Mission of St. Vincent de Paul Society, and the Redemptorists, and Archbishop Curley, all religious corporations, which were included in the first will and excluded from the second, is that the gifts and devises to them are void and cannot come into existence until sanctioned by the Legislature.

Declaration of Rights, article 38. It appears from the record that Agnes Stuart and Blanche Stuart are the heirs at law and next of kin of the testatrix, Frances Stuart; and if both wills are annulled, they would take the estate. While it was stated ⁹⁸ by their counsel at the hearing in the Orphans’ Court that they filed petitions for caveat as heirs at law and next of kin, they were not obliged to make an election. This was expressly decided in Hamill v. Hamill, 162 Md. 159, 164 , 159 A. 247 .

The appellants base their contention that Agnes and Blanche Stuart cannot caveat the will of 1940 as legatees thereunder because they have “recognized” the will of 1937 as their cousin’s valid will. That is not what they have done. They are heirs at law and next of kin of the testatrix, and they are contesting the last will she made. If that is out of the way, they may, when the 1937 will is offered for probate, contest that.

Safe Deposit & Trust Co. v. Devilbiss, 128 Md. 182 , 97 A. 367 . “If the probated will (in this case the caveat preceded and delayed probate) should be set aside, the caveators would, if sufficient grounds exist, have the right to attack the earlier will, or, if it is a valid testamentary act they would have the right to take under its provisions. * * * Nor is there any apparent reason why they should be required to surrender such rights as they may have either as caveators or as heirs at law as a condition precedent to prosecuting a caveat to a will which they assert is a nullity. * * * Whether therefore they be finally entitled to take as heirs at law or as beneficiaries under the earlier will or the probated will must depend, not upon their election, but upon facts and circumstances over which they have no control. The rights are not coordinate, both cannot exist at the same time, and conditions which establish one necessarily negative the other.” Hamill v. Hamill, 162 Md. 159, 165 , 159 A. 247, 249 . We, therefore, are of' the opinion that Agnes and Blanche Stuart, as heirs at law and next of kin, have the right to caveat the will of 1940, and as to them the order for issues must stand. The other question is as to the right of three religious corporations, beneficiaries under the will of 1937, excluded from the 1940 will, to