Fisher v. Boyce

• Decision Date: 26 March 1895
• Citation: 31 A. 707,81 Md. 46
• Parties: FISHER ET AL. v. BOYCE ET AL.
• Court: Maryland Court of Appeals

31 A. 707

81 Md. 46

FISHER ET AL. v. BOYCE ET AL.

Court of Appeals of Maryland

March 26, 1895

Appeal from orphans' court, Baltimore county.

Petition of James Boyce, Jr., and others to the orphans' court alleging that part of the will of James Boyce is in some respects a true will and in some not. William A. Fisher and others, executors, appealed from an order of that court. Order reversed, and petition dismissed.

Argued before ROBINSON, C.J., and BRISCOE, McSHERRY, FOWLER, and ROBERTS, JJ.

John P Poe, Edgar H. Gans, and B. Howard Haman, for appellants.

Charles Marshall, T. W. Blakistone, and George Blakistone, for appellees.

ROBERTS J.

This appeal is taken from an order of the orphans' court of Baltimore county transmitting issues to a court of law caveating the will of James Boyce, late of said county. Two questions are presented by this appeal: First, had the orphans' court, under the circumstances of this case, any authority to order the transmission of the particular issues prayed for? and, second, were not the appellees, by their antecedent conduct, estopped from contesting the validity of the will in controversy? It is not contended by the appellants that the orphans' court had no authority to send to a court of law for trial issues which contest the validity, either of the will and codicil in their entirety or separate and distinct provisions thereof. But it is contended that there is no authority in law justifying the orphans' court in transmitting to a court of law an issue or issues which assail as fraudulent and void certain parts of a will and codicil which are not in themselves distinct and severable from the other parts. The particulars of this controversy are that James Boyce, late of Baltimore county deceased, departed this life, leaving a last will and testament in writing, dated the 9th of July, 1891, and also a codicil thereto, dated the 27th of July, 1891, both of which were on the 6th of September, 1891, duly admitted to probate in the orphans' court of Baltimore county, and letters testamentary thereon granted to the appellants, who duly qualified as such. On the 8th of January, 1892, the appellants filed in the circuit court for Baltimore city their bill of complaint against all the parties interested in the settlement of said estate under the provisions of said will and codicil, asking said court to construe the meaning and effect of all the provisions of said will and codicil and assume the administration and settlement of said entire estate, both real and personal. The bill was answered, and, among others, by James Boyce, a son, and Catharine Harrison, a daughter, of the testator, who are the appellees in this record. In their respective answers the appellees severally and unqualifiedly admit the due execution, publication, and probate of said will and codicil. On the 26th of March, 1892, the court, by its decree, assumed jurisdiction of the trust, and took charge of the administration and settlement of the same. On the 31st of March, 1892, the said Catharine Harrison, by her husband, as next friend, filed her petition in the same cause, claiming that she was entitled under said will to the income on the one-sixth of the residue of said estate after paying certain legacies in said will provided, and praying a monthly allowance, under the provisions of said will, for maintenance, pending the settlement of said estate. In the answer to said petition it was claimed that the petitioner had received a large sum of money from her father during his lifetime, amounting to not less than $38,000; that the debts, incumbrances, and legacies would consume the greater part of the estate; and that her income, if any, from said residue, was then incapable of ascertainment. The petition and answer were heard on the proofs offered, and the petition dismissed. On March 12, 1894, the appellees filed their petition in the orphans' court of Baltimore county, in which they allege that "the paper writing dated the 9th of July, 1891, is in some particulars the true last will and testament of the said James Boyce, and the paper writing dated the 27th of July, 1891, is in some respects a true codicil to said will," but that certain provisions of both said will and of said codicil were procured to be executed by said testator by undue influence and fraud. To a proper understanding of this controversy it will be necessary to quote here in its entirety the residuary clause of said testator's will, which mainly constitutes the contention in this case, and is as follows: "It is my will that all the rest, residue, and remainder of my estate, real and personal, situate in the state of Maryland and in other states, shall be divided by my executors into six parts [and all the sums which have been charged by me, or by my authority, on any of my books of account or memoranda, against any of my children, or which may appear on memoranda made by me, and not yet entered into my books of account, shall be...