Sumwalt v. Sumwalt

Bartol, C. J., delivered the opinion of the Court. This is an appeal from the Orphans’ Court of Baltimore County. It appears by tbe record that David S. Sumwalt died on the 4th day of November 1878, leaving a paper, purporting to be his last will bearing date the 16th day of October 1850. Before the alleged will was offered for probate, Samuel Sumwalt the brother of the deceased filed his petition in the Orphans’ Court, alleging that he has been advised that Elizabeth Sumwalt, widow of the deceased, who for the last eighteen years of his life, lived separate and apart from him under a deed or agreement for-separation, has threatened to exhibit and propound for probate, a certain paper-writing purporting to be a last will and testament of said David, and the petitioner being desirous of contesting the validity and sufficiency of the alleged testamentary paper, if the same should be offered, filed his caveat thereto, and prayed that it may be inquired and determined whether said paper-writing is in truth and fact the last will and testament of David S. Sumwalt, and (if the same should be found to have been executed by said deceased, which is not admitted,) whether or not the execution of the same was procured by fraud or undue ³⁴⁴ influence; and also whether or not the said writing was, subsequently to the making thereof, revoked by the said deceased and annulled; and whether or not the said Elizabeth Sumwalt, by fraud and concealment, prevented the said deceased from cancelling the same.

On the 27th day of November 1878, Mrs. Sumwalt, the widow filed in tire Orphans’ Court, the will of her late husband, devising to her all his estate and property and appointing her executrix. On the 4th day of December she filed her answer to the petition and caveat of Samuel Sumwalt—alleging that the will was duly executed, and denying that the execution of the same was procured by fraud or undue influence practiced upon the testator, or that the same had been revoked or annulled by him, or that he was in any manner prevented by any fraud or concealment of the respondent from cancelling the same. On the same day a petition and caveat was filed by Joshua B. Sumwalt and others, next of kin to the deceased, alleging that the said testamentary paper, if it had ever been executed by the deceased, (which the caveators do not admit) had been subsequently wholly revoked and annulled. A petition was then filed by all the caveators, praying that certain issues proposed by them, should be sent to a Court of law for trial.

These issues did not involve the question of the execution of the paper by the deceased. They were as follows: 1st. Was or not the execution of the said paper-writing, dated October 16th 1850, and purporting to be the last will and testament of the said David S. Sumwalt procured by undue influence practiced upon him ? 2nd. Was or not the execution of said paper-writing, dated October 16th 1850, obtained from the said David S. Sumwalt, by the exercise of a dominion or influence by some person or persons, which prevented the exercise of a sound discretion, on the part of said David S. Sumwalt ? ³⁴⁵ 3rd.

Was or not the said paper-writing, dated the 16th day of October 1850, and purporting to he the last will and testament of the said David S. Sumwalt, revoked after the making and execution thereof? 4th. Was or not the said paper-writing, dated October 16th 1850, and purporting to he the last will and testament of David S. Sumwalt, revoked'by an indenture dated the third day of October in the year eighteen hundred and sixty, made between the said David S. Sumwalt and Elizabeth Sumwalt, his wife, of the first part, George W. Davis, Trustee, of the second part, and George H. Brice and Charles W. Ridgely of the third part ? 5th. Was or not the said paper-writing, purporting to he the last will and testament of the said David S. Sumwalt, dated October 16th 1850, revoked by an indenture dated the fifth day of June, in the year eighteen hundred and fifty-one, made between the said David S. Sumwalt of the first part, and George W. Davis of the other part? 6th. Was or not the said David S. Sumwalt prevented, by the fraudulent concealment by any person or persons, of the said alleged will of him, the said David S. Sumwalt, dated October 16th 1850, from revoking the same, by burning, cancelling or otherwise ?

The caveatee objected to the second and sixth issues; and proposed five issues in lieu of those suggested by the caveators. Of these the first, second, third' and fourth were identical with the first, third, fourth and fifth offered by the caveators. The caveatee objected to the fifth issue proposed by the caveators as wholly irrelevant and improper ; but in the event of this objection not being sustained, she proposed in lieu thereof the following : 5th. Was or not the said David S. Sumwalt prevented from revoking said alleged will, by burning, cancelling, tearing or obliterating the same, by the fraudulent concealment of any person or persons, and if so, was such ³⁴⁶ fraudulent concealment sufficient in law to operate a revocation of said last will and testament ?

The Orphans’ Court by its order granted the six issues, as prayed by the caveators, and refused to grant the fifth issue as proposed by the caveatee, and from that order the present appeal was taken.