Munnikhuysen v. Magraw

Bartol, C. J., delivered the opinion of the Court. , These cases were before this Court at April Term 1881. At that time the appeals were from .an order of the Or ⁵⁵⁹ phans’ Court sustaining the exception of the respondents, the present appellees, to the jurisdiction of the Court, and dismissing the petitions of the appellants. For the reasons which will he found stated at length in the opinion of this Court on the former appeals, oT Md., 112, the order was reversed and the cases remanded, with directions to the Orphans’ Court to hear the testimony, and determine the cases upon the pleadings and proof. In obedience to that direction, the Court below heard the testimony, and the arguments presented by the respective counsel, and on the 23d day of January, 1882, passed an order in each case, dismissing the petition with costs \ from these orders the present appeals have been taken and, hy consent, have been argued together.

The decision on the former appeals renders it unnecessary to refer to many of the questions argued at the bar. It appears from the record that the proceedings before the Orphans’ Court upon the caveat to the will of Mrs. Magraw, deceased, including the verdict of the jury in the Circuit Court, which resulted in the order of October 14th, 1813, setting aside the will, and revoking the letters testamentary, before granted to Adam R. Magraw, were all had hy the consent of the caveators and of Adam R. Magraw, executor, who was sole caveatee. What might be the legal effect of the proceeding, upon the rights of parties to whom, by the will, property and estates were limited in remainder, and who were not represented in Court during the progress of the proceeding, it is not necessary now to express any opinion. Nor are we called on to construe the will, and to determine the validity of the several limitations in trust after the life estate devised by the will.

The decision of these appeals depends upon the determination of other questions, which will be presently considered. Before passing to them, however, it is proper to say that in the original petitions filed in the Orphans’' Court, ⁵⁶⁰ upon the allegations of which alone this Court was called upon to decide upon the former appeals, the most grave and serious charges of fraud and collusion were made against counsel concerned; hut upon the proof produced are shown to he entirely without foundation in fact. Errors and mistakes may have heen committed, hut we find nothing in the evidence to justify the conclusion that there was in fact any fraud and collusion as charged. The only question which it is necessary for us to decide, is whether these petitioners, the appellants, are entitled to impeach the validity of the order of the Orphans’ Court passed on the 14th day of October 1873, which by their petitions, they seek to have set aside and annulled.

And first as to the petition of Mr. Munnikhuysen. It appears from the record that he claims to he a creditor of Mrs. Magraw, deceased, upon a single bill, on which he has instituted suit now pending in the Circuit Court for Howard County. On the former appeal it was decided that as creditor “he has no such interest in the question, whether the will was good or had, as entitles him to controvert the action of the Orphans’ Court about it.” 57 Md., 192 . Has he any standing as a trustee under the will?

In his petition he alleges “that large property real and personal was left to him in trust under the will.” Upon the former appeal, which came up on demurrer to the petition, this Court was of course compelled to act only upon the averments in the petition, without reference to the answer, which alleged that the petitioner had renounced and resigned his office of trustee, as well as that of executor. It appears from the evidence in the record that the statement in the answer in this respect is true. By an amicable arrangement and settlement made on the 5th day of July 1873, signed by Mr. Poe as counsel for the caveators, and Mr. Earnandis as counsel for Mr. Munnikhuysen, the latter agreed to renounce his execu ⁵⁶¹ torship, and also to renounce Iris trusteeship under the will. He was paid §9000, as a consideration for this agreement.

In pursuance thereof he filed a petition in the Orphans’ Court resigning his office as executor, and praying to he