Ward v. Poor

Pearce, J., delivered the opinion of the Court. Henry T. Ward and others filed a caveat in the Orphans’ Court of Baltimore City to the will of Elizabeth B. Hooff, and also filed a petition asking that thirty-nine issues should be ¹³⁹ sent to a Court of law for trial. Harry T. Poor and others being all the caveatees except one, Upton Beall, answered the caveat and proposed seventeen issues to be sent to a Court of law. Upton Beall filed a separate answer.

It does not appear from the record that he proposed any specific issues, though his counsel states in his brief that issues asked for by him were granted. What the record shows is that the Orphans’ Court ordered five issues, apparently framed by it, to be sent for trial to the Court of Common Pleas of Baltimore City, but there is no order refusing to transmit any of the issues asked for, either by the caveators or caveatees. Both the caveators and the caveatees, except Upton Beall, appealed from the order directing the five issues above mentioned to be sent to the Court of Common Pleas, and we shall request the Reporter to set out these issues at length. The only matter thus properly before this Court is whether these five issues actually ordered to be transmitted for trial present fairly and clearly the substantial questions between the parties proper for the consideration of a jury, in order to determine the validity of the will; and the numerous cases in which similar questions have been presented in this Court have resulted in clear and definite rules upon the subject.

Issues sent from an Orphans’ Court to a Court of law for trial, “ought to be framed concerning the persons named, and the matters set forth in the petition and the answer.” Richardson v. Smith, 80 Md. 92 ; Gross v. Burneston, 91 Md. 389 . “ An issue is formed by .affirming a matter on one side, and denying it on the other.” Little Sisters of the Poor v. Cushing, 62 Md. 420 . Resorting to the petition and answers in this case, it will be seen that the material averments of the petition are as follows : 1st. That the papers purporting to be the last will and testament of Elizabeth B. Hooff are not her complete and final last will and testament and codicils, and were not intended by her to operate as such. 2nd. That all said papers were revoked after their alleged making and execution. 3rd.

That said papers are not her last will and testament and codicils, but that she died intestate. ¹⁴⁰ 4th. That said papers are invalid as her last will and testament. 5th. That they were not executed in accordance with the laws of Virginia and Maryland, some having been executed while she resided in one State, and some while she resided in the other. 6th. That she was not of sound mind at the time of the execution of any of said papers. 7th.

That all said papers alleged to be codicils, beginning with the 5th codicil, were obtained by undue influence; and 8th. That all these last named papers were obtained by fraud. Upton Beall, answering the first, second and fourth averments of the petition admits that the original will and the two codicils immediately succeeding it were revoked, and avers that all the residue of these papers, in the form in which they are proposed, constitute, and were intended by her to operate as, her complete and final will. Answering the third averment, he denies that she died intestate.

Answering the fifth, he avers that the last six papers are not invalid as her last will and testament, and answering the sixth, he avers that these six papers are executed in accordance with the laws of Maryland and Virginia. In answer to the seventh, eighth, and ninth averments, he denies that she was at any time of unsound mind, or that any of said papers were obtained by undue influence or fraud. The amended answer of the other caveatees denies all the averments of the petition so far as relate to the papers, beginning with that called Codicil 5 and the following paper of October 13 th, 1899, and avers that these last named papers, together, constitute, and were intended by her to operate as, her final and complete will, and were executed in accordance with the laws of Virginia and Maryland, but admits that the original will and all codicils prior to the fifth were revoked, and avers that all the papers which precede the fifth codicil were insufficiently executed. It thus appears that under the contention between the caveators and Upton Beall, the original will and codicils one and two, are eliminated from the issues ¹⁴¹ raised by the petition, and that under the contention between the caveators and the other caveatees, all the papers which precede Codicil 5 are eliminated from the issues raised by the petition.

Munnikhuysen v. Magraw, 57 Md.