Yingling v. Hesson

Tuck, J., delivered the opinion of this court. This record shows that Isaac Hesson, one of the executors of Peter Hesson, presented a claim against his testator, which was objected to by Joseph Hesson, his co-executor. The orphans court allowed it as a credit in Isaac Hesson’s account as executor, and on appeal this court reversed the order of the orphans court for want of proof of the claim. See 14 Md. Rep., 8 .

When the record was remanded the present appellants, being some of the legatees, filed their petition objecting to the claim, on the ground that it was not due and owing, that it was false, stale and spurious, and barred by ■ the Statute of Limitations, and praying that the claimant might be required to prove his demand and that issues might ¹¹⁹ be sent to a court of law to determine the validity ©f the claim. This petition was answered on the same day, the claimant denying the averments of the petition, and also the right of the petitioners to have issues framed in reference to the demand. The petitioners filed a replication and tendered four issues, the first three involving the justice and validity of the claim, and the fourth, “whether it was or was not barred by the Statute of limitations of this State, in point of fact?” The orphans court passed an order that the first three should be sent to the circuit court for trial, taking no notice of the other; and also directing that at the trial the claimant should be piaintifF and the petitioners defendants. On the same day that this petition was filed, 11th of July 1859, Joseph Hesson, as legatee and co-executor, exhibited a petition, referring to his former petition, which was before this court on the appeal referred to, and asking that issues might be framed to test the validity and existence of the claim.

The objections stated are of the same character with those relied on by the present appellants. To this petition there was an answer filed on the 22nd of July, in the recess of the court, but not verified by affidavit, and' on the 26th of July, the day the order was passed on the application for issues by Yingling and Everly, and without a tender of issues on the part of Joseph Hesson, the court directed that his petition and proceedings should be consolidated with those on the part of the present appellants, that the same issues should be sent for trial, and that Joseph Hesson be admitted as a defendant to be heard on that trial, so as to have one trial and verdict. Prom these orders the present appeal is taken, on the part of Yingling and Everly, but Joseph Hesson does not unite in the appeal. The first point of the appellants objects that the court did not dispose of the case in full; that is, that the order does not notice the fourth issue tendered.

If the court had expressly refused this issue there would have been no reason for this suggestion, and then we should have had another, based on the refusal. As we view the case the question is the same in effect and substance, whether presented in one way or the ¹²⁰ other. The order granting three issues was, in effect, a refusal of the fourth, and in this way the appellants will have the benefit of the objection, under their second point, which insists that they were entitled to have the question of limitations tried in a court of law. We think that this proposition cannot be maintained.

The object appears to have been to present lapse of time as a legal bar to the demand, as effectually as if pleaded in an action at law. But the law is well settled that this cannot be done in the orphans court, though “it may look to the fact of such bar, as evidence to be weighed with all other testimony in relation to any claim, in determining on its