Johns v. Hodges

Irving, J., delivered the opinion of the Court. The will of John T. Johns having heen offered for .probate in the Orphans’ Court of Baltimore County, the same was caveated by the heirs-at-law of the alleged testator, -and issues were framed and sent to a Court of law for trial, to test the validity of the will, and whether the same should he admitted to probate. Pending this contest, the caveators, the appellees in this Court, filed their bill in -equity in the Circuit Court for Baltimore County, asking the appointment of a receiver to take charge of the real •estate, and manage the same and receive the rents thereof, until the pending controversy respecting the validity of the will could be settled. All parties in interest were brought in, and answered.

By their answer, they renew their denial of the allegations of the caveators, affecting the validity of the will under which they claim, but while they assert the validity ■of the will, they express willingness “to agree to any -arrangement that may be necessary and proper to protect their interest pending said litigation, and inasmuch as the ■controversy may deter tenants from paying rents, and otherwise prove injurious to the property, unless the same be taken in charge by the Court, they consent to the appointment of receivers to preserve and manage the prop-erty,” &c. The answer asserts the possession of part of the estate, viz., the mansion property of the deceased, by John Johns, who had taken possession thereof after the death of the testator, under his claim through the will. But by agreement, under which a decree appointing receivers was passed, this part of the real estate was put into the possession of the receivers also at an agreed rental. The agreement for the order appointing receivers, is as follows: “It is agreed by all parties interested in this case that the Court shall pass an order on the bill filed, appointing Stewart Brown and R. R. Boarman receivers,.and that said order shall include all the real estate of the decedent, ⁵³² including the part of the estate mentioned in the answer, as now in the possession of John Johns.

It is understood, however, that the receivers shall rent said part of the estate so occupied by said John Johns, at the rent of one hundred dollars per annum, to said John Johns, who shall thereafter hold the same as tenant of the receivers, to await the final decision of the pending controversy about the will of said John T. Johns.” In pursuance of this-agreement, the Court passed an order or decree, appointing the receivers as asked for in the hill, which decree states it to he by “ consent of all parties claiming the property.” This decree was dated the seventeenth day of October, 1881. On the 28th of June, 1883, the complainants filed their petition for the discharge of the receivers, on the ground that a verdict had been rendered in their favor and against the'will. This petition being premature, because the Orphans’ Court had not finally adjudicated the case, no action was taken, and on the 15th of November following a supplemental petition was filed, alleging the final action of the Orphans’ Court in refusing probate to the will, after the verdict upon the issues had been certified to that Court, and praying the discharge of the receivers. The appellants also filed a petition alleging that their claim was a question of pure legal right, and asking that the Court grant them leave to sue the receivers conjointly with the parties complainant, in an action of ejectment • and in effect asking the retention of -the receivers for that purpose, and to await the issue of such action of ejectment.

This application was. resisted by the heirs-at-law, who' contended that their suit was for the protection of the property pending the controversy in the Orphans’ Court, and only during such controversy ; and insisted that now that the will had been refused probate they were entitled to he restored to the possession as prima facie, at least, entitled to the property. This view the Court adopted and ⁵³³ passed a decree dismissing the petition of the appellants, •asking for a continuance of the receivers and for leave to sue them in ejectment; discharging the receivers after the rendition of the account ordered, and the collection of the rents in arrear; and directing the surrender of the property to the heirs-at-law. From this decree and all •decrees in the case appeal was taken. The prayer of •appeal is broad enough to cover the original decree appointing the receivers, and it has been argued in this Court that sufficient allegations were not made in the ■original bill to warrant the interposition of the Court.

Into this inquiry we are not called upon to go; for the •appellants in their answer concurred in the view that such •action as was asked for by the complainants, was necessary to the protection of all in interest, including themselves, and afterwards entered into the agreement for the decree which was passed; and even now they are asking to have the receivers continued, and that they may have leave to sue them in ejectment as such. The relief which was granted on the prayer of the complainants, is not unusual relief and without precedent, and if there were •omissions from the original bill of certain allegations, which ought to have been incorporated to make the ground for equitable interference clear on the face of the bill, we must at this state of the case, treat the whole proceeding as regular and proper, and refuse to go behind the decree which was passed by consent and in the interest of all. The main question which is raised in this case is of great interest and importance, and has never been the subject of express decision in this Court, if indeed it has ever been raised in the State. It may he stated thus: Does the refusal of probate to a will of real estate, after issues framed in the Orphans’ Court for trial before a jury in a Court of law, and a verdict thereon adverse to the will, effectually conclude the devisee ? or may the devisee, not ⁵³⁴ withstanding the verdict and order of the Orphans’ Court thereon, proceed hy ejectment upon the will itself, without prohate, and renew the issue as to its validity in that way before another Court and jury ?

Before the Act of 1831, chapter 315, the probate affected: only wills of personal estate. The Act of 1198 made no provision for wills of real estate being proved or contested hut that Act did make provision for the custody of such wills hy the Register of Wills, and for the punishment of' any person who should fail to deliver a will left in his custody, to the Register within a certain number of months.. If a will of personal estate was refused probate, it could, not he offered for probate, hy express provision of the statute, in any other county; hut the right of appeal was. given, and the decision of the appellate tribunal was made conclusive. Uniform decisions in this State under the Act of 1198 have held the rejection of probate of wills of personal property unappealed from, or appealed from and affirmed, conclusive against the will and the rights of any person dependent upon it.

The question here is, shall the-same rule he applied to wills of real estate under the Act of 1831, or the Code which retains its provisions, and supersedes all other law on the subject? Sections 310 and 311 of Article 93 of the Code of Public General Laws, read as follows: “310. Probate of wills may be made in the following manner that is to say: 311. The Orphans’Courts, and in their recess, the Registers of Wills in this-State are authorized to take the probate of any will, testament, or codicil, whether the same has relation to real or personal estate, or to both real and personal estate.” Sections 315 to 320, inclusive, provide for notice, caveat, and contest in the Orphans’ Court, and sections 249 and 250 provide for issues to he sent toa Court of law and trial before a jury of the grounds on which probate is resisted hut the final decree, in the Orphans’ Court after such issues are tried and result is certified, is necessary to se ⁵³⁵ cure probate or its refusal.

The argument is, that as all this minute provision is made for contest, it could not have been intended that the issue of such contest against the will, and the consequent refusal of probate, should be wholly unavailing and fruitless; as would be the case, if the devisee may again assert his rights by an action of ejectment; and relying on a will denied probate, can have the decision of a jury and the Orphans’ Court on the question reversed and set aside by the verdict of a new jury in an ejectment case. This argument seems to us without satisfactory answer. It would certainly be making the verdict of the jury in an ejectment suit, in a Court of law, of higher authority than that of a jury chosen for the express purpose of trying the question of devisavit vel non, in aid of the Orphans’ Court. It would seem to be making a Court of law sitting in an ejectment suit, a Court of probate of higher authority than the Orphans’ Court which is expressly given probate jurisdiction; and which is the only Gourt of probate known to the law of the State.

The very question having been distinctly presented to a jury in a way for which express provision has been made in the statute, and on that verdict a Court of competent jurisdiction having made a decree against the will, by the ordinary rules of law it ought to be conclusive. In the Duchess of Kingston’s Case it was distinctly laid down, that the judgment of a Court of concurrent jurisdiction directly upon the point, is as a plea in bar or as evidence conclusive between the same parties upon the same matter in another Court; and that the judgment of a Court of exclusive jurisdiction directly upon the-same matter between the same parties, is conclusive upon the question arising incidentally in another Court for a different purpose. 11 Harg. State Trials, 261. We will consider whether this is an exception to these general rules.

No other mode of probate is provided for except that in the Orphans’ Court. It is given the jurisdiction expressly; and both wills of ⁵³⁶ realty and personalty, are provided for in the same section of the Code. No difference is made or indicated, except that made in section 323 which will be presently considered. Although by sec. 314 any will maybe proved in any county where a majority of the witnesses live and letters may he granted, yet by section 321 if the adjudication of the Orphans’ Court in one county should he adverse to the will, it is expressly provided that “ it shall not be received for probate in any other county.” It seems clear from this provision that the rejection of the will for probate was intended to he conclusive against its validity, and that the action of the Court having obtained jurisdiction of the subject-matter and parties, was intended to he final, unless reversed by the appellate tribunal, to wbicb provision was made for all decisions of tbe Orphans’ Court to be taken for review.

Section 323 of Article 93 provides that “ Any probate^ of a will or codicil taken by the Orphans’ Court or Register of Wills, so far as the same concerns real estate, shall be taken only as prima facie evidence of such will or codicil.” The appellants rely bn this section, and argue that the principle of mutuality requires that a decree adverse to the will should be no more conclusive in favor of the heirs than a decree in favor of the will should be against them. That may he equitable as an abstract proposition, but the question is, did the Legislature so intend? The qualification is express and without ambiguity. The appellees insist that it is a sufficient answer to the appellants” contention, that