Reilly v. Dougherty

Irving, J., delivered the opinion of the Court. The will of James Dougherty having been admitted to probate in the Orphans’.Court of Baltimore City, George W. Dougherty, the appellee, filed his petition alleging himself to be the son of the testator, and praying the revocation of the letters of administration which had been granted to Bernard Reilly and Richard Bernard, two of the appellants, and that the probate of the will might be vacated, because the testator was not of sound and disposing mind, and capable of executing the same; and because the same was procured by undue influence. This ²⁷⁷ petition prayed that issues based upon the allegations of the petition should be framed and sent to a Court of law for trial. The executors and legatees answered the petition, not only denying the allegations affecting the validity of the will, but also denying that the petitioner was a son of the testator and had any rightful standing in Court to assail the will.

The answer averred that he ivas not begotten nor born during wedlock, or whilst the bands of marriage between his alleged father and mother had legally subsisted, and prayed that the petition should be dismissed. The appellee, after the respondents had filed their answer, filed an amended petition setting forth the date of the marriage of his father and mother, and of his birth in the year following, and alleging the reasons why filie will should not have been probated, and that, probate should not stand. The appellants again answered denying the allegations impeaching the will, and again specially denying that the petitioner was the son of the testator, and had the right to institute such proceeding. This answer prayed, that, as preliminary to entertaining, at the instance of the petitioner, any inquiry respecting the validity of the will, proof be taken before the Orphans’ Court or upon issues to bo directed for that purpose, and that judgment be given on that plea.

The Orphans’ Court disregarded this prayer of the appellants and framed issues respecting the right of the petitioner to maintain the proceeding, and respecting the validity of the will, to be tried in a Court of law at one and the same time. The appellants excepted to the issues as framed for the reason, that the question of the right of the petitioner to ask for issues touching the validity of the will, was a preliminary one, and the sole question upon this appeal is whether the appellants were entitled to have the legitimacy of the petitioner first tried and decided. We see no reason why rhe rule laid down in Tyler vs. Murray, 57 Md., 438 , as applicable to common law Courts ²⁷⁸ should not prevail also in Courts of special and limited jurisdiction. 'The doctrine, there established is, in the language of the Supreme Court of the United States, (Sheppard, &c. vs. Graves, 14 Howard, 509,) that matters which appertain solely to the jurisdiction of the Court or the disabilities of the suitor should never be blended with questions which enter into the subject-matter of the controversy.” Sound reason and policy would seem to require the same rule to be applied in