Brewer v. Barrett
| Decision Date | 13 July 1882 |
| Citation | 58 Md. 587 |
| Parties | JULIA M. BREWER AND JAMES MCCOLGAN, Executors, and others v. LUKE Z. BARRETT, and others. |
| Court | Maryland Court of Appeals |
APPEAL from the Orphans' Court of Baltimore City.
On the 19th day of October, 1881, Luke Z. Barrett, John J. Barrett and Maria T. Vandaniker filed in the Orphans' Court of Baltimore city, a petition alleging that Joseph Victory died in February, 1881, unmarried, intestate, and without issue leaving Catherine Barrett, the mother of the petitioners, and Julia M. Brewer and Elizabeth M. Sullivan, his only heirs at law and next of kin; that Catherine Barrett died in June 1881, a widow, intestate, leaving said petitioners her only living issue, heirs at law and next of kin; and that letters of administration on her estate had been granted by the said Orphans' Court to Charles O'Connor and Samuel J Smith; also, that a paper writing, dated the 20th February 1881, purporting to be the last will and testament of said Joseph Victory, had been produced by Julia M. Brewer and James McColgan, claiming to be the executors named therein, and had been admitted to probate by said Orphans' Court, and letters testamentary had been issued to the said Julia M. Brewer and James McColgan; that said petitioners desired to file their caveat and objections to said paper writing, viz.,
1st. That it was not signed by Joseph Victory, or by some other person in his presence, and by his express direction, and attested and subscribed in his presence, by three or four credible witnesses.
2d. That it was not executed by Joseph Victory when he was of sound and disposing mind, and capable of executing a valid deed or contract.
3d. That its execution was procured by undue influence exercised and practiced upon said Joseph Victory, and constraining his will therein.
4th. That its execution was brought about by misrepresentation, prejudice and fraud, practiced upon said Joseph Victory by Elizabeth M. Sullivan, and Julia M. Brewer and her husband. The petitioners prayed that the order of probate be revoked and that the executors be required to answer, &c.
The executors under Victory's will answered, admitting the death of Joseph Victory, unmarried, and without issue, and that Catherine Barrett, Julia M. Brewer and Elizabeth M. Sullivan, were his next of kin, but not his heirs at law; but denying the intestacy of Victory, and all allegations against the will probated, and affirming its legality and validity. The executors further answered, that having no personal knowledge of the death of Catherine Barrett, they neither admitted nor denied the same, but demanded proof of it, if a fact; and also demanded proof of the rights and relationship of the petitioners to Catherine Barrett and her estate. Subsequently, the petitioners filed another petition, asking that certain issues proposed by them should be sent to a Court of law to be tried, which second petition the executors answered, denying the right of the petitioners to have issues sent, and alleging, in addition to the matters stated in their former answer, that Catherine Barrett had elected to take under the will of Joseph Victory. General replications were filed by the petitioners to the answers of the executors. No evidence was offered by the petitioners. The Court ordered the issues, which are set out in the opinion of this Court, to be sent to the Court of Common Pleas for trial. The executors thereupon appealed.
The cause was argued before BARTOL, C.J., STONE, MILLER, ALVEY and RITCHIE, J.
James McColgan, and Severn Teackle Wallis, for the appellants.
Stewart Brown, for the appellees.
One of the questions presented for our consideration upon this appeal, is the form of the issues sent from the Orphans' Court of Baltimore City to the Court of Common Pleas for trial. These issues are as follows:
1st. Whether said paper writing, dated the 20th day of February, 1881, purporting to be the last will and testament of Joseph Victory, was signed by the said Joseph Victory, or by some other person in his presence, and by his express direction, and attested and subscribed in his presence by three or four credible witnesses?
2d. Whether the said paper writing was executed by the said Joseph Victory when he was of sound and disposing mind, and capable of executing a valid deed or contract?
3d. Whether the execution of said paper writing was procured by undue influence, exercised and practised upon the said Joseph Victory, and constraining his will therein?
4th. Whether the said Joseph Victory was at any time subsequent to the execution of said pretended will, desirous of altering or destroying the same, and was prevented therefrom by management, fraud, undue influence or importunity?
All these issues have been excepted to and are all brought before us for review.
No valid objection has been, or can be, shown, to the first or second issues. They are responsive to the charges made in the caveat, are couched in plain and easily understood terms, and distinctly and clearly present the points upon which the caveators desire the jury to pass, and have been sanctioned by long practice in this State.
The first issue raises the question whether the will was executed in the manner prescribed by...
To continue reading
Request your trial
-
Fidelity Trust Co. v. Barrett
... ... appeal the trust company maintains that the will should be ... probated in its original form without any lines or ... interlineations. There is no question that after a will has ... been properly executed, nothing can render it inoperative ... except a revocation of it. Brewer v. Barrett, 58 Md ... 587, 592; Taylor v. Nuttle, 62 Md. 342, 346. It has ... been held that even the cancellation of the signature on a ... will does not amount to a revocation unless done animo ... revocandi. Home for the Aged v. Bantz, 106 Md. 147, ... 66 A. 701. It is true that the ... ...
-
Godfrey v. Smith
...well supported in authority, and, we think, cannot be successfully contravened. McDonald v. McDonald, 142 Ind. 55, 41 N.E. 336; Brewer v. Barrett, 58 Md. 587; Taff Hosmer, 14 Mich. 249; Jele v. Lemberger, 163 Ill. 338, 45 N.E. 279. This position is followed by invoking the rule, too well es......
-
Smith v. Smith
...N.W. 492; Safe Deposit Co. v. Devilbiss, 128 Md. 182, 97 A. 367; Meyer v. Henderson, 88 Md. 584; Reilly v. Dougherty, 60 Md. 276; Brewer v. Barrett, 58 Md. 587; Re Land, Cal. 538, 137 P. 246; Re Wickersham, 153 Cal. 603, 96 P. 311; Re Edelman, 148 Cal. 233, 82 P. 962; Flowers v. Flowers, 74......
-
Tatem v. Wright
...in her presence by two or more credible witnesses." See Code, art. 93, § 323; Stirling v. Stirling, 64 Md. 138, 21 A. 273; Brewer v. Barrett, 58 Md. 587. valid objection has been urged to the remaining issues presented by the caveatees and granted by the orphans' court. They appear to clear......