Etchison v. Etchison

Bartol, C. J., delivered the opinion of the Court. This is an appeal from the rulings of the Circuit Court for Montgomery County, on the trial of issues sent from the Orphans’ Court arising upon a caveat to the will of Lloyd Etchison, deceased. The appellant, on behalf of himself and other heirs of the testator, was caveator, and the appellee was caveatee. The verdict was rendered in favor of the latter on 30th day of March 1878.

Exceptions were reserved by the appellant to the rulings of the Court ■upon the prayers, an appeal prayed on the 18th December 1878, and the bill of exceptions signed on the 26th day of March 1879, on which day it hears date. A motion has been made to dismiss the appeal, for the reason that the hill of exceptions was filed and signed too late, being long after the lapse of the term, and there being, as alleged, no order of Court extending the time and no consent of counsel to such extension. The rules regulating this subject have been stated in The Baltimore Building Association vs. Grant, 41 Md., 560 , and Wheeler vs. Briscoe, 44 Md., 308 ; and need not he here repeated. In this case the affidavits of counsel have been filed showing the circumstances which caused the delay in signing the hill of exceptions, and the action .of the Circuit Court in the matter.

The recollection of the counsel does not in all respects agree, and their state ³⁵⁶ ments are somewhat in conflifet. Without entering here into a particular examination of the testimony, we have concluded under the facts and circumstances as disclosed hy the affidavits, to overrule the motion. The issues sent for trial were eleven in number; but three only, the first, eighth and ninth were involved in the Court’s instructions; these present the question- of the factum of the will, that is to say, whether it was duly executed and attested according to law, and the question of the testamentary capacity of the testator. Upon the question of testamentary capacity the jury were fully and correctly instructed, by granting the first, second, third, fourteenth and sixteenth prayers of the caveator, and the first and eighth prayers of the caveatee, this last being conceded.

The only prayer of the caveator relating to this question, which was rejected, was the thirteenth; but as the proposition contained in this prayer was fully covered by the instructions granted, it was not error to reject it. There being no necessity or propriety in repeating the same instruction to the jury. Upon the question of the execution and attestation of the will. It appears that it was signed by the testator, by making his mark, and was attested in due form, by three subscribing witnesses, J. M. Smith, L. W. Snyder and B. B. Crawford.

The testimony is, that the will was written by Dr. Crawford, one of the subscribing