Hamill v. Hamill

Offutt, J., delivered the opinion of the Court. These appeals submit three questions: (1) May one, who is an heir at law, and also' a beneficiary under the unprobated will of a testator, and who has filed a caveat to' a later will of said testator, be required, as a condition precedent to prosecuting such caveat, to' elect whether he will prosecute it as a beneficiary under the earlier will or as an heir at law of the decedent; (2) whether a caveat to a will, filed by “the guardian and next friend” of an infant possessed of a caveatable interest therein, may be prosecuted as the caveat of the infant; and (3) whether either party to a caveat proceeding involving the validity of a will is entitled to any issue of fact which is not relevant nor material to- that question. The facts forming the background of those questions are these: Gilmor S, Hamill, late of Garrett County, Md., died ¹⁶¹ on March 7th, 1931, leaving what purported to- be a last will and testament, executed on January 7th, 1930, which was admitted to- probate by the Orphans’ Court of Garrett County on the 10th day of March, 1931. He left to survive him two sons, Stuart F. Hamill and H. Byrne Hamill, and four children of a deceased son, G. Semm.es Hamill, Jr., who are James F. and Gilmor S. Hamill, III, of full age, and Virginia E. and Edwin O. Hamill, infants, and they, on May 12th, 1931, filed a caveat to- the will on the grounds- of mental incapacity and undue influence and that it was not properly executed.

On July 7th, 1933, Stuart E. Hamill and George A. Fraley, executors of the will, filed in the caveat proceedings a petition in which they asked the court to- require the caveators to- elect “whether they assume, assert and represent in this litigation, that Gilmor S. Hamill died testate or intestate, whether they are heirs-at-law and next of kin of Gilmor S. Hamill: intestate or legatees, devisees and beneficiaries under a will of Gilmor S. Hamill, deceased, dated [November 10th, 1929, and now on file in the office of the Register of Wills o-f Garrett County, and whether they file their petition and caveat in the capacity, -character or right of heirs-at-law and next o-f kin -o-f Gilmor S. Hamill, deceased, intestate, or as legatees, devisees and beneficiaries under the will of Gilmor S. Hamill, deceased, dated .November 10th, 1929.” In that paper, in addition to- the facts stated above, the executors also alleged that Gilm-o-r S. Hamill, on November 10th, 1929, executed another will, which at the request o-f the- caveators they produced “in this court and filed with the Register of Wills,” under which the caveators took a larger part of the- estate of Gilmor S. Hamill than under the later probated will, and that the earlier will contained an in terror&m clause under which any legatee who -contested it would be debarred from sharing in the testator’s estate. On the .same day, before that motion or petition had been heard, the executors filed a combined answer and demurrer ¹⁶² to the caveat. They demurred on the grounds: (1) That Virginia E. Hamill, one of the infant caveators, is a female infant and will he of the age of eighteen years in August, 1931, and hence should sue by next friend and not by guardian; (2) that Emily O. Houck, the mother of Virginia E. Hamill, was living, and that Virginia E. Hamill could only conduct the proceedings by her mother as her next friend; (3) that the caveators, as legatees, devisees, and beneficiaries under an earlier will of the decedent, are not entitled to1 file a caveat as his next of kin; and (4) that “Paul L. Hitchins, guardian and next friend, is without title and right to file said petition and bring said suit.” In their ■answer they in effect traversed all allegations of the caveat which affected the validity of the will. On July 21st, 1931, the caveators answered the motion of July 7th, and in their answer admitted that the paper writing of November 10th, 1929, purporting to- be the will of G-ilmor S. Hamill, was produced in the orphans’1 court and filed with the register of wills at their request, and that under that will they would take a larger part of the testator’s estate than under the probated will, and they further stated that “Paul L. Hitchins was at the time of jhe filing of said petition and caveat the duly and legally appointed guardian in this court of Virginia E. Hamill and Edwin O. Hamill, and that in addition thereto he has been duly and legally appointed by their mother, Emily O. Hamill, their next friend for the purpose of filing said caveat with the same full power and authority to- prosecute the same in his name as next friend of said infants as fully as she could do* herself as their only surviving parent, and that Paul L. Hitchins has the legal right to file and prosecute said caveat in either or both of his capacities as guardian and next friend.” They denied that the court had the power to dismiss the caveat of the infant caveators, or h> order that it be brought by their mother as next friend, because, they said, Hitchins was the guardian of said infants appointed by the orphans’ court, and also their next friend appointed by their mother.

And ¹⁶³ at the conclusion of the answer they demurred generally to the motion. On the following day the caveators, filed a general replication to the answer of the eaveatees, and, after filing that replication, they prayed the court, to transmit. to> a court of law for trial these issues.: “1. Whether the paper writings dated the 7th day of January, 1930, purporting to he the last wiil and testament of Gilmor S. Iiamill, deceased, was signed by the said Gilmor S. Hamill, or by some other person in his presence and by his express direction, and attested and subscribed in the presence of two. or more credible witnesses. “2. Whether the said paper writing dated the 7th day of January, 1930, purporting to be the last will and testament of the said Gilmor S. Hamill, deceased, was executed by him when he was of a sound and disposing mind, and capable of executing a valid deed or contract. “3.

Whether the execution by the said Gilmor S. Hamill of said paper writing dated the 7th day of January, 1930, and purporting to be the last will and testament of the said Gilmor S. Hamill was procured by undue influence, exercised and practiced upon him, and constraining his will therein.” On the same day the eaveatees suggested that in addition to those issues the court should also transmit these, which will he designated issues 4 and 5: 4. “Whether or not the said Gilmor S. Hamill had educated his four grandchildren, children of his deceased son, G. Semmes Hamill, Jr., in the very best, schools in the country and had. advanced large sums of money to these children and their mother ?” 5. “Whether or not the said Gilmor S. Hamill had expended sums of money to have educated his four grandchildren, children of his. deceased son, G. Semmes. Hamill,. Jr., in the very best schools in the country and had advanced large sums of money to these children and their mother, and if so, how much ?” On September 22nd, after a hearing, the orphans’ court ¹⁶⁴ undertook to dispose of the question raised by these pleadings, and in a single order (1) overruled the caveators’ demurrer to the motion of the eaveatees and sustained the demurrer of the eaveatees to' the caveat of the caveators; (2) dismissed the caveat of Paul L. Hit-chins, guardian and next friend of Virginia E. and Edwin O. Hamill; (3) directed that that caveat should be filed by their mother as next friend and designated and appointed her as next friend; (4) required the two adult caveators to' elect within thirty days whether they would file their caveat as heirs at law of Gilmor S. Hamill or as beneficiaries under his will dated November 10th, 1929 (erroneously stated in the order as 1921), and (5) that upon the filing of said election the issues stated above with some modification be transmitted to the Circuit Court for Garrett County for trial. These appeals are from that order.

The apparent intent of these confusing and inconsistent pleadings was to' present the three questions to which reference has been made, and, in the absence of any contention to the contrary, it will be assumed that they are sufficient for that purpose. 1. Beverting to the question first stated, appellee’s contention appears to be that a beneficiary under an unprobated will, who is also an heir at law of the testator, cannot be permitted to prosecute a caveat to- a later will executed by the same testator unless he surrenders either his rights under the earlier will or his rights as- an heir at law. No logical or rational basis for that contention has been suggested, nor has any apposite precedent been cited to support it. Obviously the equitable doctrine of election has no- application to such a case as this, nor is it a case where the selection of one of alternate remedies precludes the person making such selection from pursuing any other or different remedy.

The doctrine of election is that a donee; who- is entitled to- one, but not more than one, of a plurality of gifts, may be obliged to' elect which he will take. The rationale of the doctrine is said in the earlier cases to be the intention of the donor that the donee should have the right to but one of ¹⁶⁵ several gifts, but tba-t he should also have the right to' say which gift he would have (Story, Eq. Jur. (14th Ed.), see. 1451 et seq.) ; but Pomeroy, in his work on Equity Jurisprudence, see. 466, rests it upon the principle that he who seeks equity must do equity.

But in any case, the