Fisher v. Boyce

Roberts, J., delivered the opinion of the Cdurt. This appeal is taken from an order of the Orphans’ Court of Baltimore County, transmitting issues to a Court of Law caveating the will of James Boyce, late of said county. Two questions are presented by this appeal: First. — Had the Orphans’ Court, under the circumstances of this case, any authority to order the transmission of the particidar issues prayed for ? and Second. — Were not the appellees, by their antecedent conduct, estopped from contesting the validity of the will in controversy? It is not contended by the appellants that the Orphans’ ■Court had no authority to send to a Court of Law for trial, issues which contest the validity, either of the will and codicil in their entirety, or separate and distinct provisions thereof.

But it is contended that there is no authority in law justifying the Orphans’ Court in transmitting to a Court of Law an issue or issues which assail as fraudulent and void .certain parts of a will and codicil, which are not in them.selves distinct and severable from the other parts. The particulars of this controversy are, that James Boyce, ⁴⁹ late of Baltimore County, deceased, departed this life, leaving a last will and testament in writing, dated the 9th of July, 1891, and also a codicil thereto, dated the 27th of July, 1891, both of which were, on the 6th of September, 1891, duly admitted to probate in the Orphans’ Court of Baltimore County, and letters testamentary thereon granted to the appellants, who duly qualified as executors. On the 8th of January, 1892, the appellants filed in the Circuit Court of Baltimore City their bill of .complaint against all the parties interested in the settlement of said estate under the provisions of said will and codicil, asking said Court to construe the meaning and effect of all the provisions of said will and codicil, and assume the administration and settlement of said entire estate, both real and personal. The bill was answered, and among others, by James Boyce, a son, and Catharine Harrison, a daughter of the testator, who are the appellees in this record.

In their respective answers the appellees severally and unqualifiedly admit the due execution, publication and probate of said will and codicil. On the 26th of March, 1892, the Court, by its decree, assumed jurisdiction of the trust and took charge of the administration and settlement of the same. On the 31st of March, 1892, the said Catharine Harrison, by her husband as next friend, filed her petition in the same cause, claiming that she was entitled under said will to the income on the one-sixth of the residue of said estate after paying certain legacies in said will provided, and praying a monthly allowance under the provisions of said will for maintenance pending the settlement of said estate. In the answer to said petition it was claimed that the petitioner had received a large sum of money from her father during his lifetime, amounting to not less than thirty-eight thousand dollars; that the debts, incumbrances and legacies would consume the greater part of the estate, and that her income, if any, from said residue, was then incapable of ascertainment.

The petition and answer were heard on the proofs offered, and the petition dismissed. On March 12th, ⁵⁰ 1894, the appellees filed their petition in the Orphans’ Court of Baltimore County, in which they alleged that “the paper-writing ’ dated the 9th of July, 1891, is in some particulars the true last will and testament of the said James Boyce; and the paper-writing dated the 27th of July, 1891, is in some respects a true codicil to said will,” but that certain provisions of both said will and of said codicil were procured to be executed by said testator by undue influence and fraud. To a proper understanding of this controversy it will be necessary to quote here in its entirety the residuary clause of said testator’s will, which mainly constitutes the contention in this case, and is as follows: “ It is my will that all the rest, residue and remainder of my estate, real and personal, situate in the State of Maryland and in other States, shall be divided by my executors into six parts [and all the sums which have been charged by me, or by my authority, on any of my books of account or memoranda, against any of my children, or which may appear on memoranda made by me, and not yet entered into my books of accotmt, shall be treated as parts of my estate, and the charges against each child shall be divided and treated as parts of the share of my estate set apart to such child, or to trustees, to her andhefisstie), it being my purpose, as far as practicable, thereby to promote equality in the benefits which my children have derived and shall derive from my estate.” That which is included within brackets and italicized is the part of said clause which it is claimed by the appellees is fraudulent and void, as having been procured by the practice of undue influence upon the testator in the execution of the same. It is also contended that the last line of the codicil, which reads, “ and I confirm my last will and testament in other respects,” was procured to be executed by the testator by the practice upon him of fraud.

We come now to the consideration of the first question arising on this appeal. ⁵¹ Until the decision in the case of Griffith v. Diffenderfer and wife, 50 Md. 466 , the practice had never been sanctioned in this State of allowing issues transmitted to a Court of Law to be so framed as to contest the validity of certain parts of a will without assailing the entire will. However, before the decision in this State, the same practice had long prevailed in the