Stuart v. Foutz

Melvin, J.. (The following opinion prepared by Judge Melvin, was adopted by the Court, after his death, and ordered filed as the opinion of the Court) : The appellant is the executrix of the last will and testament of the late Glen Stuart, of Baltimore County, and her appeal is from an order admitting that instrument to probate. The record shows that the only question before the Orphans’ Court was one relating to the factum of the will and that that was decided favorably to the executrix. She is, therefore, not an aggrieved party in interest, and because of that fact is not entitled to appeal from the order in question.

The law on this point has long been settled in Maryland. Johns v. Caldwell, 60 Md. 259, 262 ; Grabill v. Plummer, 95 Md. 56, 60 , 51 A. 823 ; Smith v. Warrenfeltz, 116 Md. 116 , 121 81 A. 275 ; Warehime v. Graf, 83 Md. 98, 101 , 34 A. 364 ; Cecil v. Cecil, 19 Md. 72 , 81 Am. Dec. 626 ; Bagby, Md. Law Execs. & Admrs.,'307; Code (1939 Ed.), Art. 5, Sec. 65. Although no motion has been made to dismiss the bill, we feel that this is one of those cases where the Court should do so, sua sponte, and we, accordingly, so rule.

Powell v. Curtis, 78 Md. 499 , 28 A. 390 . In this connection it is appropriate to add that, apart from the dismissability of the appeal, we find no error in the above-mentioned action taken by the Orphans’ Court. According to the record, all that the Court had before it were the simple facts that the executrix (appellant) produced two papers, each purporting to be the last will and testament of Glen Stuart, deceased; that one (dated April 15, 1938) was executed in all respects in conformity with the statute; that, however, it bore some interlineations in pencil which were admittedly placed ⁴⁰³ there by the testator some time after this will had been executed, without being witnessed or authenticated in any way; that the other of these two papers was dated May 28, 1938, signed by the testator, but had only one subscribing witness. The facts and circumstances pertaining to these interlineations and to the purported will of May 28, 1938, were brought to the Orphans’ Court’s attention by a petition of the testator’s two daughters (the appellees) after a perfunctory order had been passed (March 9, 1945) admitting to probate the first will with the interlineations included as a part of it.

The executrix and «the trustees under the will both answered this petition, neither admitting nor