Myers v. Hart

• Decision Date: 09 January 1968
• Docket Number: No. 33,33
• Citation: 248 Md. 443,237 A.2d 41
• Parties: Sally MYERS et al. v. Edmund Jerome HART et al.
• Court: Maryland Court of Appeals

Page 443

248 Md. 443

237 A.2d 41

Sally MYERS et al. v. Edmund Jerome HART et al.

No. 33.

Court of Appeals of Maryland.

Jan. 9, 1968.

F. Murray Callahan, Washington, D.C., and R. Edwin Brown, Rockville., for appellants.

E. Tillman Stirling, Washington, D.C. (Reasoner & Davis, Washington, D.C., on the brief) for appellees.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS and SINGLEY, JJ.

SINGLEY, Judge.

Dorothy Hart Foster died domiciled in Montgomery County, Maryland, on 4 February 1965, survived by four children who were her only next of kin and heirs at law: a daughter, Sally Foster Myers, and a son, John Arthur Hart Foster, the appellants here and caveators below, and two daughters, Dorothy Hart Foster and Marcia Hart Foster, two of the appellees here and caveatees below.

Mrs. Foster had apparently drawn her own will, dated 16 August 1963. The will, which was admitted to probate on 12 March 1965 by the Orphans' Court for Montgomery County is set out in full:

'I, Mrs. Dorothy Hart Foster of the city of Chevy Chase 15, State of Maryland do hereby make, publish and declare this to be my last will and testament.

'First: I desire that my just debts, including the expenses of my last illness and funeral, be paid as soon as may be practicable after my death.

'Second: All of the residue of my estate, whether real, personal or mixed, wheresoever situate, and whether now owned or hereafter acquired (unless otherwise specified on a list attached hereto) I give, devise and bequeath with equal distribution unto my two daughters Dorothy Hart Foster, Jr. and Marcia Hart Foster with the request that as practicable the principle (sic) be held intact and only interest be spent.

'Third: I appoint as executor of my will, my brother, Edmond Jerome Hart of Madison, Wisconsin; I request that he be permitted to serve without sureties on his bond and that, without application to or order of courts, he have full power and authority to sell, transfer, grant, convey, exchange, lease, mortgage, pledge, or otherwise encumber or dispose of, any or all of the real and personal property of my estate.' (Testimonium and attestation clauses omitted).

The record discloses that Mrs. Foster's gross real and personal estate approximated $94,000 and that the daughters named in the will were the only unmarried children of the testatrix.

Notice of caveat was filed on 10 September 1965 by Mrs. Myers and Mr. Foster, the daughter and son of the testatrix who were not named in the will. On 7 October 1965, a petition and caveat was filed; on 14 October 1965, the executor and the named beneficiaries answered; and thereafter, issues were framed by counsel for the parties and transmitted to the Circuit Court for Montgomery County for submission to a jury.

From a ruling of the circuit court that the issues presented no questions of fact for submission to a jury, this appeal was taken.

The issues framed by the Orphans' Court were:

'1. Does the Decedent's failure to expressly exclude her unnamed children indicate that decedent intended such unnamed children to share in the estate?

'2. Does the language in decedent's will 'unless otherwise specified on a list attached hereto', together with a lack of express words excluding her unnamed children, indicate that decedent intended such unnamed children to share in the estate?

'3. Does the failure of decedent to expressly exclude her unnamed children and the language in the will 'unless otherwise specified on a list attached hereto' render it incomplete, ambiguous and therefore void?

'4. Was the paper writing dated August 16, 1963, intended by decedent to dispose of her entire estate?'

Statutory authority for the conduct of plenary proceedings in the Orphans' Court and the transmission of issues to a court of law for trial is found in Maryland Code (1957) Art. 93 §§ 278 and 280.

'The practice of framing and directing issues to be tried by a jury was borrowed from Chancery and the ecclesiastical courts of England. It was in vogue in this state prior to the passage of the act of 1798, which codified the testamentary system. Issues are not proper in any case before the orphans' court except as ancillary to some relief in a matter over which it has jurisdiction to decide. They are sent to a court of law for trial in order that the questions of fact in dispute may be determined by a jury.' Sykes, Contest of Wills in Maryland (1941) § 21 at 29.

The procedure was summarized by Judge Delaplaine in the opinion which he filed for the Court in Fidelity Trust Company v. Barrett, 186 Md. 483, 487, 47 A.2d 72, 74 (1946):

'The statute now provides that the Orphans' Court, upon application of either party in any case of controversy therein, may direct a plenary proceeding by bill or petition, to which there shall be an answer under oath; and in such a proceeding the Court, upon request of either party, shall direct an issue or issues to be made up and shall send the same to any court of law convenient for trial; and upon the bill and answer and the finding of the jury the Orphans' Court shall enter its judgment or decree. Code, 1939, Art. 93, §§ 264, 265; Sumwalt v. Sumwalt, 52 Md. 338, 346; Schmidt v. Johnston, 154 Md. 125, 133, 140 A. 87. An issue is a single, definite, and material question framed from the allegations of a petition and the answers thereto. Ward v. Poor, 94 Md. 133, 50 A. 572. Before a proposed issue is acted upon, the Orphans' Court must determine (1) whether it has jurisdiction of the subject, (2) whether the question raised by the issue is properly before the Court, and (3) whether the issue is relevant and material to the question before the Court. If the Court has no jurisdiction of the subject, or the question is not properly before the Court, or the issue is irrelevant or immaterial, then it is the duty of the Court to refuse to send it to a court of law for trial.'

Although the transmission of issues to a law court for trial is most frequently used in caveat cases, it is a procedure available in all cases in controversy within...