Diffenderffer v. Griffith

Irving, J., delivered the opinion of the Court. It appears from this record, that upon the petition of William Diffenderffer and Sarah A. G. Diffenderffer, his. wife, and Charles H. G. Hungerford, an infant, appearing by bis guardian and next friend, certain issues, involving-the validity of the last will and testament of Sarah A. Griffith, were framed by the Orphans’ Court of BaltimoreCify, and sent to the Baltimore City Court for trial. Upon affidavit, that a fair and impartial tidal could not be had in that Court, the issues were removed from that Court to the Circuit Court for Anne Arundel County for trial. “ The issues came on for trial, and after the jury had been struck, and three of the jurymen already sworn, the counsel for the defendants suggested the death of Sarah A. G. Diffenderffer, one of the plaintiffs, and objected to-•the trial being further proceeded with.” This suggestion of death was made in writing'; and an agreement of facts, in these words was filed: “it is agreed that the last- will and testament of Mrs. Sarah A. G. Diffenderffer leaves. ⁸³ all her property, real and personal to her husband, William Diffenderffer for life, without impeachment of waste, and after his death to their children, and if those children do not survive him, then to Charles II. S. Hungerford; and Mrs. Diffenderffer died February 20th, 1880, leaving three children now living.” Upon this suggestion and agreement of facts being filed, the Circuit Court for Anne Arundel County, on the 25th of October, 1880, passed an order remanding the record “to the Orphans’ Court of Baltimore City, in order that .such issues as are herein-before indicated, may he applied for and transmitted, or that such proceedings in the case may be had as to the Court may seem proper, or as the parties in interest may he advised arc proper to be taken.” This order forms the subject of the first exception on this appeal.

The theory upon which this order was passed, and upon which it lias been defended in this Court, is concisely stated by the learned Court in the brief opinion prefacing the order. “As Mrs. Diffenderffer has, since the granting" and transmission of said issues for trial, died, leaving a will, by which her interest in the estate of the alleged testatrix, in case the will should he set aside, has devolved upon other parties, the trial of these issues ought not now to he proceeded with until the devisees of Mrs. Diffenderffer shall have the opportunity to file an application for issues, or in some way be brought into the case, or until the said Hungerford shall have the opportunity of asking for separate issues. There seems to be no provision made by law for such a state of things as has arisen in this case, and we are of opinion where issues are granted on the joint application of two parties, and one of them dies before the issues are tried, the other party cannot proceed to trial thereof, and that the record must he remanded to the Orphans’ Court,” &c. In determining that the Court trying the issues had no power on the suggestion of death of one of the parties, ⁸⁴ plaintiff to substitute new parties to the cause in place of the deceased, we think the Court was entirely right. The Circuit Court had no original jurisdiction in the premises.

It was not acting in the exercise of its ordinary powers as a Court of general jurisdiction. It could not remodel • the issues, or change them in any particular. Pegg vs. Warford, 4 Md., 395 ; Cook vs. Carr and Wife, 20 Md., 410 . The power of the Court and its duty was to see that a verdict, upon the issues propounded for inquiry .before a jury was reached by legal steps, and competent and legal evidence.

It was the province of the Court to decide all questions necessarily incidental to the bringing to trial and verdict; and when a verdict was obtained, to certify it to the Orphans’ Court, whence the issues came. It is clear that the Second Article of the Code of Public General Laws, title, Abatement, applies only to actions at law, strictly so-called. Article sixteen of the Code provides for contingencies in equity proceedings, like that arising in this case, by authorizing the making of new parties where the right survives. No special provision is made anywhere in the Code, for making new parties in the Orphans’ Court, upon the death of litigants.

And though there are cases in that Court, where from the nature of the proceeding, the Court might be held to have the power to admit new parties, this case is not one of them; and if the remanding had been submitted to, a new proceeding from the start would be necessary. The effect of the Court’s ruling and order, is to put an end to the pending proceeding entirely, and put the surviving caveator or plaintiff, to the necessity and expense of a new proceeding, issues and transcript to the Circuit Court. In so ruling, we think there was error. We are all of opinion that in a case of this kind, the death of one of two or more caveators, who had united in applying for issues, and on whose application such issues were framed and transmitted for trial, ought not to abate the proceeding ⁸⁵ and subject the survivor or survivors to the cost and delays incident to a new proceeding.

It is not consonant with reason and sound policy, that it should produce such a result in such a case. The true theory of the proceeding, the right of parties to it, and the necessary powers of the Court having the trial in charge, does not, in our opinion, involve any such consequences. Upon the death of one of several caveators, who have voluntarily or by coercive order of the Orphans’ Court, united in prosecuting .a contest of this nature, the survivor or survivors should be allowed to proceed with the cause ; and the Court having the conduct of the trial must, of necessity, have the power to make the necessary entry to show by whom the case was prosecuted, and to obtain a legal - verdict. This proceeding is, in no way, analogous to a suit upon-a cause of action in which the parties plaintiff have a joint or inseparable interest, and where joinder is necessary to a proper and final decision of the question at issue.

Each of the parties plaintiff in this case, in virtue of certain property rights, in the event of the will being set