Kay v. Roberts

Shehan, J., delivered the opinion of the Court. Della R. Kay and Alvinia Evans, heirs at law and next of kin and sisters of Virginia W. Troutman, deceased, who reside in the State of Virginia, are appellants, and Clarence M. Roberts, executor of the alleged last will and testament of Virginia W. Troutman, and James E. Troutman, sole devisee in said alleged will, are appellees. There are two appeals from orders of the Orphans’ Court of Prince George’s County in this record. The first is from an order of September 17th, 1935, in which that court refused to frame issues as to the validity of said will and to send them to the Circuit Court for Prince ⁴⁰² George’s County for trial, as prayed by the appellants.

The reason assigned by the court for this action was that issues had already been tried and the validity of the will had been sustained. This appeal has been abandoned; the record has not been transmitted to this court within the time prescribed. The appeal was ordered on the 17th day of September, 1935, and the record was not filed here until February 19th, 1936; therefore this appeal must be dismissed. The second appeal is from an order of the Orphans’ Court of Prince George’s County of January 7th, 1936, dismissing a petition filed by the appellants on October 22nd, 1935, in which it was prayed to vacate an order of January 22nd, 1935, admitting to probate the said paper writing, purporting to be the last will and testament of Virginia W. Troutman, deceased, and granting letters testamentary to Clarence M. Roberts.

The single question here presented is whether the court erred in passing its order of January 7th, 1936, dismissing the appellants’ petition of October 22nd, 1935. Virginia W. Troutman died on the 12th day of June, 1934, leaving surviving her two sisters, the said Della R. Kay and Alvinia Evans, as her sole heirs at law and next of kin, who are appellants. Carrie N. King, Ruth I. Kamm, and James E. Trout-man were supposed to be, and presented themselves as, adopted children of said Virginia W. Troutman, but the evidence fails to establish this fact, and, so far as the record goes, there is nothing to show that any one of the three was legally adopted, and therefore they had no interest in the property of Virginia W. Troutman as her heirs at law or next of kin. The will of Virginia W. Troutman was dated December 2nd, 1933, and James E. Troutman, who is designated therein as “My adopted son,” was named as sole beneficiary in the said will.

Clarence M. Roberts, executor, offered the paper writing for probate in the Orphans’ Court of Prince George’s County. Carrie N.- King and Ruth I. Kamm filed a caveat to the said alleged will about the 1st of September, 1934; issues ⁴⁰³ were framed and sent to the Circuit Court for Prince George’s County for trial. These caveators were unable to establish their adoption, and therefore were unable to show any interest in the property of the deceased, and sought to continue the case, which effort failed, and under instructions from the court, the jury found on all the issues in favor of the caveatees. The findings of the jury were certified to the Orphans’ Court, and the paper writing was thereupon admitted to probate, and letters testamentary were granted to Clarence M. Roberts.