James v. Parker

⁴⁶⁷ Briscoe, J., delivered the opinion of the Court. The questions presented for consideration in this case arise upon a demurrer to a petition, filed in the Orphans’ Court for Montgomery County on the 28th of February, 1917, to establish by secondary evidence a last will and testament, alleged to have been lost, mislaid or destroyed and to admit it to probate and record. Charles H. Parker, a resident of Montgomery County, Md., died on the 12th day of August, 1915, possessed of real and personal property, situate in this State. H'e left surviving him, nine children as his only heirs at law, six of whom are adults and three are minors.

The appellants, C. Clinton James and Eva J. Turner (a daughter) are the executors and trustees named in the alleged will sought to be established and Charles TI. Parker, the other appellant, is one of the devisees under the will, and they are the petitioners in the Court below. The appelleeá are five of the six adult children of the decedent, Charles H. Parker, and are the defendants in the Court below. The cause of demurrer is stated to be: 1.

That the petition does not state facts sufficient to show the existence of any will of Chas. IT. Parker, deceased, which is entitled to probate. 2. Because under the allegations of the petition, the alleged paper therein referred to is not entitled to probate. 3.

Because there are no sufficient allegations contained in the petition which show that the petitioners are entitled, as a matter of law, to have the prayers of the petition granted. 4. Because the petition is wholly insufficient, and wanting in materia] and necessary allegations to show the validity of any alleged will or to show that any alleged will of Chas. H. Parker, deceased, is entitled to probate. The ease was heard, upon the demurrer to the petition and from an order of the Orphans’ Court sustaining the deu murrer, and dismissing the petition, an appeal has been taken. ⁴⁶⁸ The abject and purpose of the proceedings, it. will be seen, is to establish by secondary and parol testimony, an unproduced paper, as the original will, an alleged copy of which is filed with the petition and which the petition avers is the draft from which the will claimed to have been executed by the testator was copied before execution.

The petition is a lengthy one, covering over nine pages of the record, but as the allegations of the petition are admitted by the demuz’rer and for the purposes of the case az*e to be treated as true, we shall set put only those portions which may be necessary for the consideration of the case. The prayer of the petition is, that secondary proof be allowed to be made of the contents and terms of the will bearing date December -, 1906, and that upon satisfactory proof being made of the contents and teams of the instrument, that it be established as and for the last will and testament of Charles H. Parker1, deceased; and that letters testamentary de bonis non be issued to your petitioners upon their giving bond as required by the Court. The averments of the petition are somewhat conflicting but the substantive facts relied upon by the appellants are stated, in part, in their brief as follows: that the will sozzght to be established as and for the last will and testament of Charles H. Parker, deceased, was prepared by O. Clinton James, Esq., and was read ,by or to the said