Simmons v. Hagner

Thomas, J., delivered the opinion of the Court. On the 14th of June, 1921, the appellees, the two executrices of the last will and testament of Florence B. Simmons, deceased, filed in the Orphans’ Court of Washington County a petition alleging that Roger E. Simmons was one of the “'distributees, legatees” in, and one of the executors of, the last will and testament of the said Florence B. Simmons ; that the said Roger E. Simmons was “indebted unto the estate of Florence B. Simmons in the sum of $800, and was so indebted unto the said Florence B. Simmons in her lifetime,"’ and that he had “failed, neglected and refused to make any' return to” the orphans’ court “of the said $800,” and praying that he be required to answer under oath the matters alleged in the petition. Tn pursuance of an order passed by the orphans’ court, Roger E. Simmons filed an answer under oath, denying that he was indebted to the decedent in her lifetime, or to her estate, in the sum of $800. After filing a replication to the answer, the petitioners filed a petition in the orphans’ court, alleging that they were entitled to have the issues of fact presented by their petition and the answer of the respondent tried and determined by a'jury, and praying that the following issue be sent io the Circuit Court for Washington County for trial: “Is Roger E. Simmons indebted to 'the estate of Florence B. Simmons, deceased, if so, how much ?”' ²⁵⁰ To the issue proposed by the petitioners the respondent filed the following objections: “1st — That he objects to said proposed issue because the same is indefinite. 2nd — That he is entitled to be advised wherefore and for what and in what manner the said Leah B. Hagner and Anna B. S. Talley, executrices, allege or claim that he, the said Roger E. Simmons, is indebted to the estate of Florence B. Simmons in the amount of $800, or in any other amount, or in any manner whatsoever or any amount whatsoever.” This appeal is from an order of the orphans’ court overruling said objections and directing the issue proposed by the petitioners to be transmitted to the circuit court for trial.

The petition of the appellees was filed under section 228 of article 93 of the Code, .which requires an executor to return any just claim which the decedent had against him in the list of debts, and provides, upon his failure to do so, for the filing of a petition against him by anyone interested in the administration, and for issues to be sent to the circuit court for the county for trial. 23 Cyc., 368, gives, among others, the following definition of an issue: “A single, certain and material point issuing out of the allegations of the plaintiff and defendant”; and this definition was approved in the case of Richardson v. Smith, 80 Md. p. 96, which was an appeal from an order of the orphans’ court refusing to grant an issue proposed by the appellant, and in which the Court said: “The appellant asked the court to send this issue to a jury, to wit: 'Whether the petitioner, Carrie Richardson, is the sister of Samuel Richardson, deceased?’ This was the point of controversy between the parties. It was the matter affirmed on one side and denied on the other. The question was presented clearly, distinctly, perspicuously and accurately. The form in which it was expressed