Parker v. Leighton

Boyd, C. J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Montgomery County ratifying an account filed by the appellees as executors and trustees under the will of Charles H. Parker, deceased. The record shows that a caveat to that will was filed by Benjamin H. Parker, Mareb R. McKimmie and Mable T. O’Donnell, three of the appellants, who together with Thomas C. Parker and Grace M. Heiston, the other appellants, are five of the nine children of Charles H. Parker. Eva J. Turner, formerly Eva J. Dolan, one of the ⁴¹¹ appellees, and three minors are the other children.

Four issues were framed and sent to the Circuit Court for Montgomery County, which, as abbreviated, were as follows: 1. Did the testator execute the paper writing purporting to be his last will and testament in accordance with the form required by the laws of Maryland? 2. Were the contents of the paper writing read to or by the said Charles H. Parker, or known to him at or before the time of the alleged execution thereof ? 3. Was he at the time of the execution of the paper writing of sound and disposing mind and capable of executing a valid deed or contract?' 4.

Was the execution of the paper writing procured by undue influence exercised and practised upon said Charles H. Parker? On December 22nd, 1916, a jury found in favor of the caveators on the first, second and third issues, and in favor of the caveatees on the fourth issue. An appeal was taken by the caveatees, but it was dismissed by them on February 24th, 1917. The verdict was certified to the Orphans’ Court, which on March 8th, 1917, passed a decree in accordance with the verdict on the issues, that the paper writing “is not the last will and testament of the said Charles H. Parker and probate thereof is hereby revoked.” The decree also provided that all costs of that Court and of the Circuit Court for Montgomery County arising out of the framing, transmission and determination of the. issues bo paid out of the estate of the deceased.

On March 8th, 1917, an account of the appellees as executors and trustees was filed in the Orphans’ Court and objections to it were filed by the appellants, which were overruled and the account was ratified. From that action of the Court this appeal was taken. It is contended by the appellants: 1. That the evidence offered by them, which was rejected, showed the absence of jurisdictional facts, the existence of which was essential to the jurisdiction of the Orphans’ Court in making an order of probate; that the order of probate was therefore void and the will was never probated, and hence the executors can not be allowed the expenses of defending the caveat, or ⁴¹² other items of the account. 2.

That the evidence offered tended to show that the appellees knew that the alleged will was false and not entitled to probate; that they acted in bad faith, undertook to establish as a genuine will a paper which they knew to be false, and therefore can not be allowed the account or the items thereof. First—-It appears from the record that Charles H. Parker died August 12th, 1915. On the 18th of that month Ernestine F. Terflinger made an affidavit as to the custody of the will, that she obtained it from E.' F. Leighton, attorney for the decedent, on or about the 14th of August, 1915. On September 10th, 1915, a certificate of the Register of Wills was made and filed that the two subscribing witnesses to the will had appeared before him “and in the presence of Almighty God, solemnly and truly declared that they were present and did see the testator therein named sign and seal this will, that they heard him publish, pronounce and declare the same to be his last will and testament, .that at the time of his so doing he was, to the best of their apprehension, .of sound and disposing mind, memory and understanding, and that they respectively subscribed their names as witnesses to this will in the presence of the testator, at his request, and all in the presence of each other.” On the 16th day of September, 1915, the Orphans’ Court passed an order admitting the will .to probate.

It appears therefore from the record, that the Court admitted the will to probate and although there was some criticism. at the argument of the form of the certificate of the register as to proof by the witnesses, it was a sufficient compliance with section 350’ of Article 93 of the Annotated Code. On September 28th, 1915, the Court approved the bond presented by the appellees and ordered that letters testamentary be granted to them upon taking the usual oath. Some objec-' tion was made that letters testamentary were not issued in the form prescribed by section 51 of Article 93, but there is a certificate of the register that letters testamentary were issued, and the mere fact that they were not precisely in the ⁴¹³ form prescribed by that section could not invalidate or effect the proceedings of the executors. In Decker v. Fahrenholtz, 107 Md. 515 , it was said: “The statutes in this State do not prescribe any particular form in which the judgment of probate shall be expressed, nor do the statutes elsewhere so far as we are informed.

In 16 Enc. Pl. & Pr. 1043, it is said to be sufficient if it appear from the minutes of the Court that the will was proved and allowed, and that a formal judgment or decree admitting the'will to probate is not necessary.” In this case there wus a formal decree, but we quote the above to show the position this Court has taken with reference to proceedings in the Orphans’ Court. Coming then to the question whether the omission to show that some of the “next relations of the deceased” attended or that notice appears to have been given affected the jurisdiction of the Court to grant the probate, we find nothing in the record to show that such notice as is contemplated by the statute was not given to some of the next relations of the deceased. In Stanley v. Safe Deposit Company, 88 Md. 401 , we said that sections 327 and 328 (now sections 343 and 344) of Article 93 do not contemplate a formal notice such as a summons or something in the nature of an order of publication, as section 329 (now 345) provides for that character of notice in the event of the other not appearing to have been given, “but they refer to a notice to be given by the executor or other person exhibiting the will to the Court for probate, and if it appeared to the Court that such reasonable notice was given as provided for in section 327 (343), it unquestionably had jurisdiction to proceed to take probate of the will.

Having the jurisdiction to decide that question, and having decided it, as we must presume it did unless we assume that it wholly disregarded the express provisions of the law, which we would not be justified in doing, its decision can not be reviewed in the way now attempted.” We held in that case that it was not a proper matter for issues as the law conferred jurisdiction on and imposed the duty on that Court to determine that preliminary question. ⁴¹⁴ We will not quote the proffer of the appellants to prove certain facts by the Register of Wills, but we have examined that proffer very carefully and find that it falls far short of negativing what was said to be sufficient in Stanley v. Safe Deposit Co., supra. Everything contained in that proffer may be true and still the executors may have informed some of the near relations that the will would be offered for probate at the time it was. , Although section 343 of Article 93 authorizes the Register of Wills to take the probate of a will in the recess of Court, this will was admitted by the Orphans’ Court itself under section 344. The Register of Wills under and by virtue of section 350 took the “deposition,” as it is called in that section, of the two subscribing witnesses, which he or his deputy, when directed by the Orphans’ Court, is authorized to do wherever he may find witnesses to a will who can not conveniently attend at the office of the register, whether within or without the State, and the proof so taken is as valid as if all the witnesses had appeared before and been examined by the Orphans’ Court for the Register. That having been done in this case the Orphans’ Court admitted the will to probate as shown above.

In reference to the question of notice to the next relations the case of Lederer v. Johannsen, 124 Md. 453 , is conclusive. In that case Mrs. Parker was appointed executrix and Paul Johannsen executor of Mrs. Lederer. The question of notice was raised—the appellant contending that notice was not given to him and that without it the Orphans’ Court had no jurisdiction to admit the will to probate. Judge Thomas quoted in full sections 343, 344 and 345 of Article 93 of the Code, and on page 459 said: “The facts of this case bring it clearly within the provisions of sections 343 and 344.

Mrs. Parker, who was one of the daughters of the deceased, and, therefore, one of ‘the next relations of the deceased’ was present in the Orphans’ Court when the will was offered for probate. The language of section 344 is ‘any of the next relations of the deceased,’ and no exception is ⁴¹⁵ made in case such relation happens to be the executor or executrix, or a witness to the will. As Mrs. Parker was present when the will was exhibited in the Ophans’ Court, and as no caveat or objection was filed, the Orphans’ Court was authorized to admit the will to probate without it being made to appear that reasonable notice bad been given to the near relations of the deceased of the time when the will would be exhibited in that Court.” That would seem to be conclusive of the question, but another reason may he given which is equally so. tt will be remembered that this contest is raised by objections to the account of the executors and trustees filed after the will had been set aside as the result of the caveat. In Stanley v. Safe Deposit Co., 88 Md. 401 , it was held, quoting from the syllabus for convenience, that: “When a party attacks the probate of a wall on the ground that notice thereof had not been given to near relations as required by statute, he must file his petition within a reasonable time after acquiring knowledge of that fact, and, in analogy with the time limited for taking appeals from orders of the Orphans’ Court, this should he within thirty days after the grant of probate.” In considering the question we said what is very applicable to the appellants in this case who filed a caveat, that “the facts as to notice wore as much within the knowledge of the appellants when they filed the original caveat to the will, as they were when they filed this petition, as they knew whether they were present or had notice that the will would he offered for probate.” Tt, is therefore thoroughly established that the will was admitted to probate and the validity of the probate is not. an open question.

That conclusion reached by us disposes of many of the objections urged by (bo appellant®-—particularly as to the items of expense connected with the trial of the caveat. Before taking up the items in the account which are objected to, it will be proper however to consider the second of the main contentions of the appellants stated above,— as to the alleged had faith of the appellees in procuring the ⁴¹⁶ probate of the will which they knew to be false, and hence can not be allowed the account or the items thereof. The evidence in the record and that offered to be proven are not sufficient to sustain that charge. The only authority in this State cited by the appellants is Pleasants v. McKenney, 109 Md. 277 , it being said on page 292, that: “Whether all persons interested in the will are actual parties or not, the finding of the jury is binding and conclusive upon them as* to all questions covered by the issues actually submitted to the jury for its determination.” That is a well established principle of law, but to hold that because a jury found for the caveators on such issues as those in this case, the executors are to be treated as convicted of fraud and of having acted in bad faith in procuring the probate of the will is not sustained by any decision in this State, if there be any elsewhere.

Everyone familiar with the trials of caveats to wills knows how difficult it is to prevent the jury from being influenced by their own ideas of what the testator should have done. Sometimes the jury will be influenced by the eloquence of the ¿ttorneys, and at other times they may be deceived by witnesses, but whatever the reasons for their verdict may be, it should not be given such effect as is sought to be given it in this case. As to the first issue the witnesses to the will swore to such facts as apparently showed it to have, been executed in accordance with the form required by the laws of Maryland, yet. the jury found in the negative. Those witnesses also swore as to the capacity of the testator to make a will.

Are they to be condemned as perjurers or guilty of fraud because the jury found contrary to their statements? But the question is settled in this State. In Glass v. Ramsay, 9 Gill, 456 , one of the issues was whether the execution of the paper was procured by fraud or fraudulent misrepresentations of the executors, or either of them, or by others acting for them or by their direction. The jury found in favor of the caveators, and the probate of the will and letters testamentary were revoked.

The executors then exhibited an account, in which they claimed an allowance for counsel fees, ⁴¹⁷ costs and expenses incurred by them in support of the will, and also commissions. The Court said that: “It is certainly true that this finding of the jury is to be treated as conclusive with respect to all questions touching the validity of the will. * * * But when upon a new and different issue, founded on a claim for costs and expenses incurred by the appellees in the discharge of the duties imposed upon them as executors by the letters testamentary, the finding of the jury upon the caveat is collaterally introduced to affect, the propriety or legality of such claims, it is like all other evidence of that character, open to explanation.” The Court then went on to say that “taking the depositions furnished by the counsel of the caveators, or the trial before the Orphans’ Court, into consideration, the conduct of Hugh Jenkins, one of the executors, is relieved from all imputation of fraud, so that the order of the Orphans’ Court, allowing to the appellees counsel fees and costs, is covered by the opinion of this Court in the case of Compton v. Barnes, 4 Gill, 55.” The Court also said that there was no ground for disputing the correctness of the order of the Orphans’ Court allowing commissions to the appellees. It is settled by a long line of decisions in this State that when a will is admitted to probate before the caveat, it is the right and duty of the