Price v. Moore

Goldsborough, J., delivered the opinion of this Court: The appellant on the 6th day of May 1857, filed in the Orphans’ Court for Baltimore City for probate, a paper writing purporting to be the last will- and testament of Miss Charci-lla Owings. On the 8th day of May, Mrs. Frances Taylor, alleging herself to be a sister and one of the next of kin of Mrs. Owings, filed her petition or caveat against the above.paper writing, denying that it was the last will and.testament of the deceased, and praying that it be not admitted to probate. To this caveat the appeh. lant filed his answer. ³⁷³ Before aav adjudication however, the caveator, Mrs. Taylor, prayed the Court to frame issues and transmit them to the Superior Court of Baltimore City, and the issues named in the record were accordingly framed and transmitted, and it was further ordered, that Mrs. Taylor he plaintiff, and John O. Price be defendant. These issues were subsequently removed for trial to the Circuit Court for Baltimore County, and on the 25th day of January 1859, the following entry appears on the docket of this last named Court: “Dismissed, order of plaintiff filed.” On the 26th day of March of the same year, the Orphans’ Court, reciting in their order or decree that the caveat had’ been dismissed, admitted to probate the paper writing purporting to be the last will and testament of Miss Owings.

On the day of this decree, the appellees came into the Orphans’ Court and filed their petition, alleging that the paper writing which had been admitted to probate, was not the genuine last will and testament of Miss Owings, and prayed that the probate thereof then granted, might be reconsidered, and that the issues suggested by the petitioners and appended to their petition, be framed and sent to the Superior Court of Baltimore City for trial. Which application was granted by the Court, and from its order this appeal was taken. The appellant resists this order, and contends that the probate of the will was had in solemn form on proceedings which put the validity of that paper in issue, and that it was therefore final and conclusive. On the other hand the appellees insistthat it was allowed, not upon the plenary proceedings of Mrs. Taylor, but in common form without contest, and under these circumstances, that the Orphans’ Court was authorised by the Act of 1798, ch. 101, sub-ch. 2, sec. 13, to direct