Little Sisters of the Poor v. Cushing

Bryan, J., delivered the opinion of the Court. Jane Cushing filed a caveat to the will of Elizabeth Cunningham, deceased, and an answer thereto was filed by Eliza Jane Connolly, the executrix named in said will. The will had already been admitted to probate by the Orphans’ Court, and letters testamentary had been issued to the executrix, who had been duly qualified as such. Issues were prayed by the caveatrix and transmitted by the Orphans’ Court to a Court of law for trial, and the jury found a verdict in favor of the caveatrix.

After the verdict had been rendered, a petition was filed in the Orphans’ Court by two of the residuary legatees under the will, praying that the order transmitting the issues should he rescinded; and the executrix moved the Court to arrest the judgment on the verdict. It would have been improper to make the legatees under the will parties to the caveat. Letters testamentary had been granted tó the executrix; and she was the proper representative of the estate of the deceased; and it was her duty to appear to the caveat and conduct the defence. The defence of all the interests of the estate is ⁴¹⁹ confided by the law to the executor.

He is the proper representative of the legatees in all legal controversies. Before the probate of the will the position of legatees is essentially different. If, however, good reason had been shown for allowing the residuary legatees to be made parties defendant to the issues, the Orphans’ Court, in their discretion, might have so ordered. Cases might arise where it would be highly important to their interests that they should be permitted to take part in defending the will.

An executor might be faithless, or incompetent, or wanting in intelligence and energy. Under such circumstances there is no good reason why residuary legatees should not be permitted, if they desire it, to assist in the defence of their own interests. But the direction of this whole matter is committed exclusively to the discretion of the Orphans’ Court. A caveator has no right to file his petition against them, and make them incur the expenses of litigation against their will.

The issues were ordered in the regular course of the Court, after the caveat bad been answered by the executrix. Her counsel had a full opportunity to object to the issues, if he had wished to do so; or he might have prayed other issues if he had wished to present other questions for contestation. The executrix was represented by counsel at the trial before the jury, and there seems to have been no objection to the transmission of the issues, until after a verdict had been rendered against the will. The Court directed these issues in the exercise of its ordinary jurisdiction, and it is of no importance whether the residuary legatees acquiesced in the action of the Court or not.

They had no right either to give or to withhold assent to the exertion by the Court of powers, which had been conferred upon it by the law. It has been objected to the grant of issues that the answer of the executrix was not verified by -oath. This is a singular objection to be made in behalf of the executrix. ⁴²⁰ Undoubtedly it was her duty to make affidavit to her answer. But if the petitioner chose to overlook the omission, and to proceed without probing her conscience by requiring an oath from her, he certainly did her no injury.

Undoubtedly, the jurisdiction of the Orphans’ Court was not defeated by this waiver of a rule of