McSherry v. Winsatt

Stockbridge, J., delivered the opinion of the Court. A caveat to the will of Clara L. McSherry was filed by Bertha McSherry Wimsatt, a daughter of the deceased, and shortly thereafter J. Roger McSherry, a brother of the caveator, was, upon his application, permitted to unite with Mrs. Wimsatt in the caveat. Six issues were tendered by the caveators and four by the caveatees. By its order the Orphans’ Court of Frederick County directed four issues to be transmitted to the Circuit Court of Frederick county for trial by a jury.

The first- of these issues was: “1. Was the paper writing dated March 30th, 1910, purporting to be the last will and testament of Clara L. McSherry, signed by her, and was the same executed and attested in due form as required by law ?” This appeal is taken from the order of the Orphans’ Court directing the sending of the issues and particularly from that portion which constitutes the first issue, already quoted. This it is earnestly argued on behalf of the appellants, presents a clear question of law, and, therefore, is not in a form proper to be submitted to a jury, and reliance is placed upon the language of this Court in the opinion in the case of Ward v. Poor, 94 Md. 133 . The third issue in the ease of Ward v. Poor was objectionable for several reasons, and, therefore, is not in complete analogy with the present case.

The phraseology adopted by the Orphans’ Court of Frederick County is a paraphrase of the language of the Code, Article 93, section 317, and undoubtedly the better form in which to present an issue upon the execution of a will is to adopt as nearly as possible the language of the statute, or ⁶⁵⁴ else by the insertion of the names as in the case of Brewer v. Barrett, 58 Md. 587 , to make the issue as framed a concrete one of fact only. A departure from either of these involves the danger of tendering