Schmidt v. Johnston

• Decision Date: 10 January 1928
• Docket Number: 36.
• Citation: 140 A. 87,154 Md. 125
• Parties: SCHMIDT v. JOHNSTON.
• Court: Maryland Court of Appeals

140 A. 87

154 Md. 125

SCHMIDT v. JOHNSTON.

No. 36.

Court of Appeals of Maryland

January 10, 1928

Appeal from Orphans' Court of Baltimore City; Myer J. Block Harry C. Gaither, and William M. Dunn, Judges.

"To be officially reported."

Caveat by Alfred G. Schmidt to the will of Catherine Schmidt deceased, opposed by Marie Agnes Johnston, individually and as executrix. From an order dismissing the caveat, and caveator's petition for framing of issues, and an order refusing to entertain a petition to rescind the order dismissing, and to grant leave to amend, the caveat, caveator appeals. Second order affirmed, first order reversed, and cause remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and PARKE, JJ.

C. Arthur Eby, of Baltimore (C. Craig Fears, of Baltimore, on the brief), for appellant.

J. Cookman Boyd, of Baltimore (Emil Budnitz, of Baltimore, on the brief), for appellee.

PARKE J.

Catherine Schmidt died testate on February 5, 1924, and her will, bearing date January 30, 1924, was admitted to probate by the orphans' court of her domicile on February 11, 1924, when letters testamentary were granted to her executrix. After the usual provisions for the payment of debts and funeral expenses, the testatrix bequeathed to each of her three sons the sum of $500, and devised and bequeathed the residue of her property to her daughter, Marie Agnes Schmidt, now Marie Agnes Johnston, for life, "with full power and authority to the said Marie Agnes Schmidt to sell, mortgage, lease, convey or otherwise dispose of all or any portion of said property and estate, and appropriate the proceeds of such disposition to her own use and from and immediately after the death of my said daughter," over to her said three sons equally, with a provision that, if any of the said sons should die before the daughter, leaving issue then living, such issue should take the share of the ancestor, but, if he should so die without issue, the surviving brother or brothers would take.

Alfred G. Schmidt, the appellant, is one of the three sons of the testatrix, and he was paid, and executed a release for, his legacy of $500. The date of this payment and release is not found in the record, and, while it is ordinarily the duty of the executor to settle the estate and pay the legacies within 12 months after the grant of letters testamentary, the question whether it should be presumed that the payment of the legacy had been made within that period need not be here determined, since, while the date is not given, it does affirmatively appear that the legacy to the appellant had been paid at least a few months before the proceedings were instituted in the pending case. See Lark v. Linstead and Heath, 2 Md. 420, 427; Bagby's Executors and Administrators, § 111; Code, art. 93 §§ 1, 2, 3, 123; Handy v. Collins, 60 Md. 229, 235, 236, 45 Am. Rep. 725.

The first proceeding in the instant cause was a caveat to the will filed by the appellant on February 10, 1927, the last day within the statute of limitations. Code, art. 93, § 352. The grounds of attack were that the will had been procured by the undue influence of Marie Agnes Johnston, who was at once the daughter, executrix, devisee, and residuary legatee of the testatrix, and of others unnamed, and that the testatrix was at the time of signing the will, and had been for some time previous, and thereafter until her death, of unsound mind. The caveat contained an averment that the petitioner was "ready, willing, and able to refund and turn back to said estate the aforesaid sum of $500, in the event that said will is set aside." The caveat has this further explanatory and minifying paragraph:

"That while your petitioner accepted the sum of $500, which by said paper writing was provided as a legacy in his favor, and while he executed a release therefor to the executrix named in said alleged will, he did so without knowledge of facts respecting the issues in this case, which facts have, since the probate of said will and since the receipt of said alleged legacy and the execution of said release by him, and within the past few months, become known to him; that he received said alleged legacy in his favor without full knowledge of his rights, and of other important facts concerning said estate; and that he has since the probate of said will, and since the receipt of said alleged legacy, acquired knowledge of such facts that your petitioner believes that he has been deprived of certain rights which he would have as an heir at law of said Catherine Schmidt, and he finds that the only remedy he has for obtaining justice and his legal rights is by way of a proceeding to contest the validity of said will."

The caveat concluded with the prayer that the probate of the will be annulled and that the letters testamentary be revoked.

The answer of the executrix denied all the material allegations of the caveat, except that of the caveator's ability, readiness, and willingness to refund, and thereupon the caveator filed a petition, whose allegations were a repetition of the averments of the caveat, and which prayed that issues be framed and transmitted to a court of Baltimore City having common-law jurisdiction. The issues proposed were five in number, and were designed to present the question of the knowledge of the caveator, at the time of his receipt of, and release for, the legacy, of the facts and circumstances (1) attending the making and execution of the will; (2) material to the validity of the will; (3) relating to the mental capacity of the testatrix to execute a valid deed or contract; (4) relating to the question of undue influence that may have been exercised and practiced upon the testatrix in connection with the execution of her said will; or (5) showing the amount and character of the estate of the testatrix with the accompanying knowledge of the caveator of his legal rights in and to said estate.

The matter came on for hearing on the pleadings, and the orphans' court of Baltimore City declined to grant the issues on the preliminary questions of fact raised by the caveat and answer, and dismissed both the caveat and petition. A few days after this action, a second petition was filed by the caveator reciting the pleadings of the parties and the action of the orphans' court. There was, also, a statement that the court proceeded upon the ground that the petitioner "had not sufficiently explained in said caveat the apparent inconsistency of his conduct in attacking a will under which he had received a legacy." The petition asked the court to rescind that portion of its order dismissing the caveat, and to grant him leave to amend his caveat, "in order to meet the views of" the court, "by explaining more fully the apparent inconsistency of his conduct as aforesaid." The theory of this second petition was that the petitioner was either entitled to submit evidence to the orphans' court in support of the allegations of the caveat in explanation of his apparently inconsistent conduct or to amend the caveat in order to give a further explanation.

The orphans' court refused to entertain this second petition, and the appeal in this case is by the caveator from these two successive adverse orders, which will be considered in their inverse order.

1. The allegations of the second petition were in substance but a repetition of what had been submitted to the orphans' court when it passed its first order. The refusal of leave to amend the caveat in order to make the allegations more specific is not reviewable here, since the application was made after the orphans' court had passed a final order dismissing the caveat and refusing to grant issues to be sent to a common-law court for trial, and the rescission of its order and leave to amend the caveat had then become a matter for the sound judicial discretion of the orphans' court whose action when thus presented is generally not subject to review by this court, especially when the application does not set forth the proposed amendment, so that its materiality may be seen. Mead v. Tydings, 133 Md. 608, 611, 105 A. 863; Holloway v....