Struth v. Decker

Briscoe, J., delivered' the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore City passed on the 23rd day of May 1905, in the matter of a caveat to the will of Charles G. Struth of Baltimore City, deceased. It appears that on the 4th day of April, 1902, upon a caveat to this will, six issues were framed and sent to the Court of Common Pleas of Baltimore to be tried by a jury. At the trial, a verdict was rendered for the caveatees on all the issues and upon an appeal to this Court, the rulings of of the Court below were affirmed.

Struth v. Decker, 100 Md. 377 . Subsequently, the finding of the jury was by an order of the Orphans’ Court, dated on the 7th of February, 1905, ratified and confirmed and the caveat dismissed. Afterwards, on the 16th of February, 1905, Emma A. Struth and others, the caveators on the former appeal and the appellants here, filled a petition in the Orphans’ Court of Baltimore City against Adolph F. Decker and others, the caveatees, and the appellees here, asking that two additional issues be framed and sent to a Court of law for trial. The alleged new issues are in substance as follows : First,. ⁴⁹⁸ that the paper writing dated the 25th day of February, 1002, and purporting to be the last will and testament of Charles Struth, deceased, was and is not his last will and testament because its execution was procured by fraud exercised and practiced upon him; and second, that the provisions of the will do not carry out all the material and important intentions of the testator, as given by him to its draftsman but these were omitted and not contained in the will.

In their answer, the appellees deny the allegations of the petition, and aver that the case was res adjudicates and the matters raised by the new issues were passed upon and determined by the issues on the original appeal. The case was heard on petition and answer and from an order of the Orphans’ Court denying the caveator’s application for new issues, and dismissing the petition, an appeal has been taken. The case as thus stated, it will be seen, presents the question, whether the two issues asked for by the appellants in their petition of the 16th of February, 1905, were not embraced in and determined by the issues on the former appeal. And to do this it becomes necessary to consider what was tried and decided in the former case.

The verdict rendered in the original case decided and determined that the will was executed according to the requirements of the statute; that it was executed by the testator when he was of sound and disposing mind and capable of executing a valid contract; that the contents of the will were read to or by him, and known to him, at or before the time of its execution; that no part of the will was unknown to or misunderstood by the testator, at the time of its alleged execution, and lastly, the execution of the will was not procured by undue influence exercised and practiced upon him. We have carefully examined the several issues contained in the record on the former appeal and also those presented here and fail to find any substantial difference in the propositions submitted and proposed by the appellants in the two cases. The new issue asked by the appellants, that the will was ⁴⁹⁹ not the last will and testament oí the testator, because the ex-cution was procured by fraud exercised and practiced upon him, is practically the same as the one passed upon by the sixth issue, relating to undue influence, in the former case. In Struth v. Decker, supra, (the former appeal) it is said: “The fifth prayer of the caveator defining