Edelen v. Edelen , 6 Md. 288 ( 1854 )

Le Grand, C. J.,

delivered the opinion of this court.

This is an appeal from the circuit court of Prince George’s county. It appears from the record that the appellee filed his petition in the Orphans court, asking that letters of administration, which had been formerly granted to the appellant on the estate of Francis Edelen, should be revoked, and that a certain paper writing, referred to in the petition, as executed by the intestate of “the appellant, should be admitted to probate as and for the last will of the said Francis Edelen. The appellant answered the petition and insisted that her letters of ■administration should not be revoked, and that the said paper writing should not be admitted to probate. On her application the Orphans court framed three issues, and sent them to the circuit court for trial. These issues all relate to the paper propounded as a will. The Orphans court did not designate which of the partied was to be considered as plaintiff and which as defendant. The jury were sworn “to try the issues between Thomas H. Edelen, plaintiff, and Christiana Edelen, administratrix of Francis Edelen, defendant.”

After the jury were sworn, but before any testimony was given, the appellant prayed the court to change the status of the parties so as to make Christiana Edelen caveator, and Thomas Edelen caveatee. This the court refused, and it is this refusal which constitutes the first exception. The object and purpose of the appellant in making this application to the court was to secure the privilege to her counsel of opening and closing the case before the jury; a right to which we think she was clearly entitled under the decisions of the Court of Appeals. It was she who first denied the validity of the paper as a testamentary paper, and asked for issues to determine that question. The issues relate to the fact of the execution of the paper, the place where it was found deposited, and the intention, if executed by the deceased, in executing it.

So far as the question we are now considering is involved, we see no difference between this case and that of Brooke, et al., vs. Townshend, 7 Gill, 10. In that case the caveatees claimed, as matter of right, that they should open and conclude the argument before the jury. The county court was of a different opinion, and the Court of Appeals concurred with 'them. At page 25 of the report of the case, the court say: “It appears to us to be perfectly clear that in a case thus situated, the caveators are to be regarded as the assailants of •the will; as the actors who originated this proceeding, and who were therefore entitled to be placed upon the record in the attitude of plaintiffs.” In the case now before us, the appellant was undoubtedly the assailant of the paper as a will, •and the actor who originated this proceeding, namely, the framing of issues to try its validity as a testamentary paper. But it was argued by the counsel for the appellee that it was too late — the jury having been sworn — to make the motion which was made on behalf of the appellanl, and the case of Stockton vs. Frey, 4 Gill, 407, was relied upon to sustain this view'. The cases are not similar in their character; besides, that case was decided under the 20th rule of Baltimore county -court, which was made a part of the record, but w’hich can have no influence in this case. We think the circuit court ■erred, and therefore reverse it on this exception.

The second exception sets out three prayers offered on behalf of the appellant, and then states: “But the court refused to grant the said instructions as prayed by the defendant, and gave the following instructions to the jury: — That they must find that the paper was executed by the said Francis Edelen, as his last will and testament, and to carry out his wishes in reference to the same; to which refusal of the court to grant the said instructions as prayed, the defendant by her counsel excepted, and prayed the court to sign and seal this her bill of exceptions,” &c.

According to our view, the instruction which was given by the court is not now before us, no exception having been taken to it. In the case of Abell's adm’x vs. Harris, 11 Gill & Johns., 367, it was held, that when a party prays an instruction which the court refuses, but proceeds to give a direction of its own, the whole of which is incorporated in one exception, and by which it appears that objection was taken below only to the refused, instruction, the subject of the court’s direction is not open upon appeal. The only question to be considered under the second exception is, whether the court did right in rejecting the prayers presented on behalf of the appellant? Without noticing the first and second instructions asked, we think the court erred in refusing the third. It submits to the finding of the jury certain facts which are indispensable to the establishment of the paper as a will of Francis Edelen; and in looking to the instruction which was given by the court, it is difficult to discover why the instruction asked was denied, for the court, although the form of its direction is imperative upon the jury, yet seems to contemplate the necessity of the jury finding the paper was executed as his last will, and did, in fact, express fully his wishes. Had the instruction given by the court left it to the jury to find from the evidence the facts set out in it, we should have affirmed the judgment, because in that event the appellant would have suffered no wrong by the rejection of his prayer; but inasfeuch as the direction of the court was imperative, and left nothing to-the jury to find from the evidence, the appellant was damnified by the rejection of her third prayer. But it was said in argument, that conceding error in the court below in regard to the instructions asked and given, still the appellant was not injured, because the marriage contract with her husband deprived her of all interest in his estate, and she therefore had no right to interpose any objection to the probate of the paper propounded as his will. This court did decide on the particular language of the contract, in the case of Maurer vs. Naill and others, 5 Md. Rep., 324, that a widow, who, by an ante-nuptial agreement, had relinquished her rights to her husband’s estate, in virtue of the marriage, has no right to administer upon his estate, nor to object to the validity of the probate of his will. We see nothing erroneous in that decision; but the question is not before us on this appeal. If the appellant have no right to letters of administration, and if they have been improvidently granted to her, they can be revoked by a direct application to the Orphans court for that purpose. The propriety of the action of the Orphans court cannot be collaterally inquired into. Raborg vs. Hammond, 2 H. & G., 42, and Wilson vs. Ireland, 4 Md. Rep., 444.

Judgment reversed and procedendo awarded