Ward v. Poor , 94 Md. 133 ( 1901 )

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 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.

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 13th, 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 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. 191. Of course it is not competent to deprive one caveatee of the right to submit a material issue raised by his pleading, because that issue is not raised by the pleading of any of the other caveatees, though it is not apparent how Upton Beall, who is neither one of the next of kin, nor of the heirs at law, is interested in any issue not affecting the paper of October 13th, 1899, as under that alone can he become a beneficiary.

But whether the issues are considered under either contention, none of them are proper issues to be transmitted for trial, because they all require the jury to pass upon all the papers proposed for probate, while as to the original will and codiclls one and two, there is no issue evolved from the pleadings of any of the parties. "It is not competent and proper to frame issues in a case where there is an entire agreement between the parties before the Court as to the facts alleged." Munnikhuysen v.Magraw, 57 Md. supra; Cain v. Warford, 3 Md. 462. But apart from this objection, the issues transmitted are faulty, because, even if confined to those papers as to which there is dispute, they are so framed, while ostensibly presenting a single question, as in reality to present numerous questions, since each issue relates to all the papers offered for probate.

In Richardson v. Smith, supra, this Court, considering an issue from the Orphans' Court, quoted LORD COKE's definition of an issue, which he declared to be "a single, certain and material point issuing out of the allegations of plaintiff and defendant;" and in Barth v. Rosenfeld, 36 Md. 617, treating of issues from a Court of equity the Court quoted the same definition as adopted by 1 Chitty on Pleading, 653. Under this rule and definition, each issue should be so framed as to enable the jury to give a single answer one way or the other to the entire question. Taylor v. Nuttle, 62 Md. 345. Whereas, there being ten separate papers inquired of in each of these five issues, as many varying answers to each issue might be required, and the result would be certain confusion in the minds of the jurors in separating these papers, and in reaching and declaring their conclusions in regard to each; or, an issue might be answered as to one or more of the matters embraced in each, and left unanswered as to others, so that the verdict as a whole might be utterly inconclusive. Moreover, the first and fifth issues, in assuming that some of these papers bear certain dates, and that others are without date, assume as facts what it appears as well from the printed record as from an inspection of the original will and codicils produced at the argument, and from the photographic copy thereof filed with the briefs, are contested matters of fact, and ought therefore to be left with the jury. The third issue submits, in the form it bears, a clear question of law. For these reasons there was error in transmitting the issues sent to the Court of Common Pleas.

The salutary rule against multiplying the issues unnecessarily, cannot be complied with by combining in one issue distinct material matters of inquiry, demanding for their proper solution separate consideration, and for their clear and intelligent declaration, separate and distinct answers. The photographic copies of the papers propounded as the will and codicils in this case abundantly show that these papers present unusual perplexities and difficulties both as to form and execution, and the numerous material points which we have seen do arise out of the pleadings, show that if the rule as to single issues is observed, the issues must be numerous, though scarcely so numerous as those here proposed by the caveators. We may properly say, without going into the consideration of the issues proposed by the caveators and caveatees, which we have said are not brought before us by those appeals, that we approve in a general way of the form and scope of the issues proposed by the caveatees, except Upton Beall, as well adapted to present clearly the several material points involved, and to secure single affirmative or negative answers to each.

Especially is it necessary to submit in some properly framed issues, such questions as will enable the jury to declare with accuracy what words are embraced in and constitute Codicil 5, after the manner attempted in the first, second and third issues proposed by the caveatees, though we are not to be understood as specifically approving any of those issues as proper to be transmitted, since we regard them as not before us.

The order of the Orphans' Court must be reversed, and the case remanded for further proceedings in conformity with this opinion.

Order reversed and case remanded.

(Decided December 5th, 1901.)