Hall v. Yellott

²⁴⁶ Pattison, J., delivered the opinion of the Court. On the twelfth day of August, 1916, Dr. Thomas Hall Emory, late of Baltimore County, executed a paper writing purporting to be his last will and testament, in which he named the appellees as his executors, and two days thereafter’ .he died at Saranac Lake, in the State of New York. On the twenty-first day of the same month, a caveat thereto was filed by the appellants, Edward IT. Hall, Isabella B. Hall and Patty W. Jewell, the brother and sisters of the deceased mother of Dr. Thomas Hall Emory, deceased, and his next of kin.

In their petition and caveat so filed, they alleged, in addition to the fact that the paper writing is not the last will and testament of the said Thomas Hall Emory: “(1) That the paper was not signed by the said Thomas H. Emory or by any person in his presence and by his expressed direction, nor attested and subscribed in the presence of each other by two or more credible witnesses. “(2) That it was executed by Thomas Hall Emory when he was not of sound and disposing mind and capable of executing a valid deed or contract. “(3) That it was procured by undue influence, exercised and practiced upon the said Thomas Hall Emory constraining his will therein.” The executors filed their answer thereto) denying all the allegations set forth in the caveat relating to the validity of said alleged will and declaring that said paper' writing mentioned in the petition was in truth the last will and testament of Dr. Emory. Thereafter the caveators filed their replication to the answer of the executors'. A supplemental petition was subsequently filed by the caveators, alleging therein as a further reason why the paper writing should not be admitted to probate: “That at the time of the execution of the said paper writing, the said Thomas Hall Emory did not know and- understand the contents thereof,” to which supplemental petition the executors, as caveatees, filed their ²⁴⁷ answer: “Averring that at the time of the execution of the said paper writing referred to- in the petition the said Thomas Hall Emory did know and understand the contents thereof,” and to this answer the caveators- filed their replication. On the 5th day of September the caveators presented to the Court the following issues to be transmitted to a Court of law for trial: “1.

Whether the paper writing dated the 12th day-of August, in the year 1916, and purporting to be the last will and testament of the said Thomas Hall Emory, deceased, was signed hy the said Thomas Hall Emory and attested and subscribed in his presence and in the presence of each other hy two credible witnesses. “2. Whether the contents of the paper writing dated the 12th day of August, in the year 1916, and purporting to he the last will and testament of the said Thomas TIall Emory, deceased, were read to or hy him and known to him at or before the time of the alleged execution thereof. “3. Whether the execution by the said Thomas Hall Emory, deceased, of the paper writing dated the 12th day of August, in the year 1916, and purporting to he the last will and testament of the said Thomas Hall Emory, deceased, was procured hy undue influence exercised and practiced upon him. “4. Whether the paper writing dated the 12th day of August, in the year 1916, and purporting to he the last will and testament of the said Thomas Hall Emory, deceased, was executed hy him when he was of sound and disposing mind and capable of executing a valid deed or contract.” The executors answered consenting to the form of all the issues pro-p-osed by the eaveato-rs except the second issue and suggested that it should read as follows-: “(2) Whether the contents of the paper writing dated the 12th day of August, in the year 1916, and purporting to be the last will and testament of the ²⁴⁸ said Thomas Hall Emory, deceased, was read to or by him, or known to him at or before the time of the alleged execution thereof.” The Court adopted the first, third and fourth issues as framed by the caveators and the second issue in the form suggested by the executors and ordered that said four issues be sent to the Circuit Court for Baltimore County for trial by jury.

The caveators thereupon appealed from the order “refusing the second issue prayed by the caveators.” The form of the second issue as proposed by the executors and adopted by the Court differs from the form proposed by the caveators only in the use of the italicized word “or” that is substituted for the italicized word “and” found in the issue as proposed by the caveators. It will thus be seen that the single issue involved in this appeal is whether the caveators were entitled to have the second issue, as framed by them, transmitted for trial by jury. The form of the second