Johnson v. Saulsbury

Thomas, J., delivered the opinion of the Court. It appears from the record in No. 19 Appeals of the April Term, 1922, that Oharles H. Saulsbury, of Talbot County, Maryland, died on the 17th day of March, 1920, leaving one child and a widow, and leaving a paper purporting to be his last will and testament, by which he devised and bequeathed all his estate remaining after the payment of his debts and funeral expenses to1 M. Tilghman Johnson, the executor, in trust to pay the net income therefrom to his widow, Ida M. Saulsbury, and his daughter, Ellen G. Saulsbury, in equal shares, during their natural lives, and to1 the survivor during her life. The will further provided that if his widow remarried the whole of said income shoidd be paid to his daughter during her life, and that upon the termination of said trust by the death of the survivor of said widow and daughter, the estate should vest absolutely in the children of said daughter, but in the event that the daughter died “leaving no children or descendants of children surviving her,” the whole of the estate, upon the termination of said trust, should go to the testator’s brother, James O. Saulsbury, absolutely. The will was admitted to probate on the 24th of March, 1920.

On the 4th of May, 1920, the widow renounced the ¹⁵⁹ provisions made for her and elected to take in lieu thereof her “legal share of the estate,” and thereafter the daughter filed a petition and caveat to the will and prayed that the executor be required to answer. After the answer of tbe executor was filed, tbe Orphans’ Court of Talbot Oounty, on tbe 22nd of February, 1921, on the petition of tbe caveator, directed certain issues to be sent to tbe Circuit Court for Talbot County for trial, and further ordered that upon the trial of such issues the caveator should he the plaintiff and the executor the defendant. On May 16th, 1921, a motion was made by tbe caveator in the circuit court for leave to amend the caveat and petition by adding tbe name of James O. Saulsbury, devisee, as a party defendant. This motion was overruled on tbe 18th of May, 1921, and on tbe same day the caveator made a “motion for leave to dismiss without prejudice.” To the granting of this motion the eaveatee objected.

Tbe objection was overruled, and tbe eaveatee noted an exception to tbe ruling, and on tbe same day tbe motion for leave to dismiss was granted, and the case was entered “dismissed without prejudice.” After a certificate of the proceedings in the circuit court was scut to the orphans’ court, the daughter filed in the orphans’ court another petition and caveat to said will, to which she made the executor and James C. Saulsbury parties, and thereupon tbe executor and James C. Saulsbury filed a petition in the orphans’ court, setting out the proceedings to which we have referred, and praying that said second petition and caveat be dismissed. The daughter then filed another petition, praying the orphans’ court to pass an order dismissing her first caveat, but the orphans’ court, on the 25th of October, 1921, dismissed the second, caveat, and on the 6th of December, 1921, passed another order refusing to dismiss the first caveat. From these orders the caveator entered an appeal on the lJth of January, 1922, but the appeal was dismissed by this Court at the April Term, 1922, because it was not taken, and the record was not transmitted to this Court, in ¹⁶⁰ time. The record, in this case shows that after the dismissal of the former appeal, the caveator filed a petition in the orphans’ court praying that the issues originally sent to the circuit court he again sent to that court for trial.

The executor objected to the granting of said petition, but the orphans’ court, on the 25th of April, 1922, passed an order directing that said issues be sent to the circuit court for trial, and from that order the executor, caveatee, has brought this appeal. The contention of the appellant is that under the decisions in the Berry Will Case, 93 Md. 560 , and Bennett v. Bennett, 106 Md. 122 , the caveator had no authority to dismiss the ease in the circuit court over the objection of the caveatee, and that the circuit court erred in permitting her to do so', and that there was, therefore, no error in the orders