Brewer v. Barrett

Stone, J., delivered the opinion of the Court. One of the questions presented for our consideration upon this appeal, is the form of the issues sent from the Orphans’ Court of Baltimore City to the Court of Common Pleas for trial. These issues are as.follows : 1st. Whether said paper writing, dated the 20th day of February, 1881, purporting to be the last will and testament of J oseph Victory, was signed by the said J oseph Victory, or by some other person in his jiresence, and by his express direction, and attested and subscribed in his presence by three or four credible witnesses ? ^ 2d.

Whether the said paper writing was executed hy the said Joseph Victory when he was of sound and disposing mind, and capable of executing a valid deed or contract P 3d. Whether the execution of said paper writing was procured by undue influence, exercised and practised upon the said Joseph Victory, and constraining his will therein ? 4th. Whether the said Joseph Victory was at any time subsequent to the execution of said pretended will, desir ⁵⁹¹ ous of altering or destroying the same, and was prevented, therefrom by management, fraud, undue influence or importunity ? All these issues have been excepted to and are all brought before us for review.

Ho valid objection has been, or can be, shown, to the first or second issues. They are responsive to the charges made in the caveat, are couched in plain and easily understood terms, and distinctly and clearly present the points upon which the caveators desire the jury to pass, and have been sanctioned by long practice in this State. The first issue raises the question whether the will was executed in the manner prescribed by our statute, so as to pass real estate; and the second, whether the testator possessed sufficient testamentary capacity to make any will, whether of real or personal property? Upon both these questions the caveators had the undoubted right to have issues framed and sent to a Court of law for trial.

We are not prepared to say that the third issue is so manifestly defective, that if it alone was involved the defect would cause a reversal of this case, but as the case will be sent back, and as we think that issue has a defect, we will suggest how it may be amended. This Court has said, in Sumwalt vs. Sumwalt, 52 Md., 347 , ccIt is not the province of the Orphans’ Court to define the nature, or degree of influence exerted upon a testator which will render his will void.” The Court also says, in the same case: “ 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.” The words “ and constraining his will therein,” used in the third issue, do, in some measure, attempt to define the degree of influence exerted over the testator, and are there ⁵⁹² fore objectionable. The issue would be better without them.

It is the province of the Court before whom these issues will be tried, to define to the jury what constitutes such undue influence as would vitiate the will, and it is not the province of the Orphans’ Court to attempt to qualify the term “undue influence,” which is a well understood legal term, by the addition of any words explanatory thereof; leaving out these words the issue would read 3d. Whether the execution of said paper writing was procured by undue influence, exercised and practised upon said Joseph Victory? To such an issue we see no objection. The fourth issue is glaringly defective—so much so, that even if found for the caveators, we doubt whether any judgment affecting the will, could have been pronounced upon it. .

The object of this fourth issue, we presume, was to submit the question of the revocation of the will to the jury. A will once made is good and valid until it is revolted. What constitutes a revocation is well defined and settled. After it is once duly and properly made, nothing can affect or render inoperative a will but a revocation of it, and it is the duty of the Court before whom these issues may be