Meyer v. Henderson

• Decision Date: 01 February 1899
• Citation: 42 A. 241,88 Md. 591
• Parties: MEYER v. HENDERSON et al.
• Court: Maryland Court of Appeals

42 A. 241

88 Md. 591

MEYER v. HENDERSON et al.

Court of Appeals of Maryland

February 1, 1899

On rehearing. Denied.

For prior report, see 41 A. 1073.

BRISCOE J.

Since the filing of the opinion on the 20th of December, 1898, a motion has been submitted on behalf of the appellees for a reargument of this case. The reason for the motion is stated to be because "the decision was based upon an assumed fact, namely, that the issue as to the due execution of the will in question was passed upon before the preliminary issue of relationship of the appellee Henderson to the testator was decided." And it is now shown by affidavits and other evidence submitted to this court for the first time, and omitted from the original record, that the issue of relationship of the appellee to the testator was waived or conceded by the counsel for the appellant in the court below. Now, we need scarcely repeat at this late date, and what has been so often said, that this court is confined to the statement of facts as contained in the record, and we take the record as it is presented. It not only appeared from the original record, as sent to this court, that the issue of the relationship of the appellee remained undisposed of at the time of the trial below, but the point was distinctly made by the appellant's counsel in this court "that no order, save that of dismissal should have been passed upon Henderson's caveat until Henderson's right to file it had been affirmatively shown. His right to intervene in the estate depended upon his relationship to the deceased."

But even if the contention of the appellees be conceded, there is another reason why the conclusion heretofore announced by us should not be disturbed. Acts 1894, c. 405, provides that no will, testament, codicil, or other testamentary paper shall be subject to caveat or other objection to its validity after the expiration of three years from its probate. This act took effect on April 6, 1894. In Garrison v. Hill, 81 Md 551, 32 A. 191, it was held that proceedings against wills probated before the act was passed must be commenced within three years from the date of the passage of the act, and proceedings against wills thereafter probated must be commenced within three years from the date of the probate. In the present case the will of Meyer was probated on January 17, 1893; and it was therefore necessary, under this statute so construed, that a caveat should be filed before April 6 1897....