Stocksdale v. Cullison

Bowie, J., delivered the opinion of the Court. This cause originated in a caveat filed by the appellants, in the Orphans’ Court of Carroll county, at April Term, 1868, against an instrument 'previously admitted to probat in common form in that Court, as the last will and testament of Aaron Stocksdale, deceased. At the instance of the caveators, certain issues were directed by the Orphans’ Court to the Circuit Court for Carroll county for trial. Subsequently, upon the suggestion and affidavit of the counsel for the caveators, the record of the proceedings were by the Circuit Court for Carroll county ordered to be transmitted to the Circuit Court for Howard county.

The issues submitted to the jury were substantially as follows: 1st. Whether the paper writing exhibited in the Orphans’ Court of Carroll county, purporting to be the last will and testament of Aaron Stocksdale, late of said county, deceased, is false, fraudulent and forged, and not the true and proper last will and testament of said deceased ? 2d. Whether or not the signature of said Aaron Stocksdale, as testator, to the said paper writing, purporting to be the last will and testament of said Aaron Stocksdale, is the true and proper handwriting and signature of said Aaron Stocksdale? 3d. Whether the signatures of Jacob A. Troyer, Reuben A. Troyer and Jacob Hiltybrand, as the subscribing witnesses to the said paper writing, purporting to be the last will and testament of the said Aaron Stocksdale, are the true and proper signatures of said Troyers and Hiltybrand ?

The jury found for the caveators on all the issues. Four bills of exception were taken by the appellants (the caveatees) at the trial below: The first, to an order of the Court declaring that the right to open and conclude the argument of the cause, belonged to the caveators; the second, third and fourth to the rulings of ³²⁴ the Court, excluding certain declarations, statements and acts offered in evidence by the caveatees, hereinafter more particularly mentioned. The case being submitted on the briefs of the counsel of the respective parties, and no reference being made by the appellants’ counsel to the first exception, relating to the right of opening and concluding the argument before the jury, it may be assumed that the exception is abandoned; yet from abundant caution we may remark, the order of the Court below in that respect was in strict conformity with the practice in this State, and the decisions of this Court. Brooke vs. Townshend, 7 Gill, 24 ; Higgins, et al. vs. Carlton & Scaggs, 28 Md., 143 .

The caveators having offered.evidence tending to prove the signatures of .the supposed testator and the attesting witnesses were forged, the appellants, to maintain the issues on their part, offered evidence of the genuineness of said signatures, and of the death of the subscribing witnesses, and offered to prove that on the day before the funeral of Aaron Stocks-dale, the witness inquired of the caveatee, George Stocksdale, whether there was a will of his father’s in existence, and the reply of said George to the question; which question and answer the Court refused to allow to go to the jury, to which ruling the appellants excepted. In addition to the evidence offered in the second exception, the caveatees offered to prove that on the day before the funeral of Aaron Stocksdale, while several of the children of the deceased, and the caveatee George were present, it was generally stated by the family of the deceased, that their belief was their father had left no will; which evidence the Court refused to permit to go to the jury, and the caveatees excepted, which constitutes the third exception. In addition to the above testimony, the caveatees offered to prove that Reuben A. Troyer, one of the attesting witnesses, died about the 20th of January, 1861, and that a short time before he was taken with his last illness, he said to the wit ³²⁵ ness, “ old Mr. Stoeksdale lias made a will now,” and, at the same time, Jacob A. Troyer, another of the attesting witnesses, remarked, “ I wrote a will once,” which declarations, or either of them, the Court refused to admit as