Edelen v. Edelen

Le Grand, C. J., delivered the opinion of this court. This is an appeal from the circuit court of Prince George’s county. It appears from the record that the appellee filed his petition in the Orphans court, asking that letters of administration, which had been formerly granted to the appellant on the estate of Francis Edelen, should be revoked, and that a certain paper writing, referred to in the petition, as executed by the intestate of “the appellant, should be admitted to probate as and for the last will of the said Francis Edelen. The appellant answered the petition and insisted that her letters of ■administration should not be revoked, and that the said paper writing should not be admitted to probate.

On her application the Orphans court framed three issues, and sent them to the circuit court for trial. These issues all relate to the paper propounded as a will. The Orphans court did not designate which of the partied was to be considered as plaintiff and which as defendant. The jury were sworn “to try the issues between Thomas H. Edelen, plaintiff, and Christiana Edelen, administratrix of Francis Edelen, defendant.” After the jury were sworn, but before any testimony was given, the appellant prayed the court to change the status of the parties so as to make Christiana Edelen caveator, and Thomas Edelen caveatee.

This the court refused, and it is ²⁹³ this refusal which constitutes the first exception. The object and purpose of the appellant in making this application to the court was to secure the privilege to her counsel of opening and closing the case before the jury; a right to which we think she was clearly entitled under the decisions of the Court of Appeals. It was she who first denied the validity of the paper as a testamentary paper, and asked for issues to determine that question. The issues relate to the fact of the execution of the paper, the place where it was found deposited, and the intention, if executed by the deceased, in executing it.

So far as the question we are now considering is involved, we see no difference between this case and that of Brooke, et al., vs. Townshend, 7 Gill, 10 . In that case the caveatees claimed, as matter of right, that they should open and conclude the argument before the jury. The county court was of a different opinion, and the Court of Appeals concurred with 'them. At page 25 of the report of the case, the court say: “It appears to us to be perfectly clear that in a case thus situated, the caveators are to be regarded as the assailants of •the will; as the actors who originated this proceeding, and who were therefore entitled to be placed upon the record in the attitude of plaintiffs.” In the case now before us, the appellant was undoubtedly the assailant of the paper as a will, •and the actor who originated this proceeding, namely, the framing of issues to try its validity as a testamentary paper.

But it was argued by the counsel for the appellee that it was too late — the jury having been sworn — to make the motion which was made on behalf of the appellanl, and the case of Stockton vs. Frey, 4 Gill, 407 , was relied upon to sustain this view'. The cases are not similar in their character; besides, that case was decided under the 20th rule of Baltimore county -court, which was made a part of the record, but w’hich can have no influence in this case. We think the circuit court ■erred, and therefore reverse it on this exception. The second exception sets out