Stuart v. Foutz

• Decision Date: 17 December 1945
• Docket Number: 35.
• Citation: 45 A.2d 98,185 Md. 401
• Parties: STUART et al. v. FOUTZ et al.
• Court: Maryland Court of Appeals

45 A.2d 98

185 Md. 401

STUART et al. v. FOUTZ et al.

No. 35.

Court of Appeals of Maryland

December 17, 1945

Appeal from Orphans' Court, Baltimore County; John W. Bishop William G. Lynch, and Carl H. Shelton, Judges.

In the matter of the will of Glen Stuart, deceased. From an order admitting to probate the first of two wills on the petition of Mary S. Foutz and another, Louise B. Stuart, as executrix and the Mercantile Trust Company, as trustee, under the will appeal.

Appeal dismissed.

B. Harris Henderson, of Baltimore (Venable, Baetjer & Howard and John M. Butler, all of Baltimore, on the brief) for appellants.

Charles F. Stein, Jr., of Baltimore (Hennighausen & Stein, of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, HENDERSON, and MARKELL, JJ.

MELVIN Judge.

The appellant is the executrix of the last will and testament of the late Glen Stuart, of Baltimore County, and her appeal is from an order admitting that instrument to probate. The record shows that the only question before the Orphans Court was one relating to the factum of the will and that that was decided favorably to the executrix. She is, therefore, not an aggrieved party in interest, and because of that fact is not entitled to appeal from the order in question. The law on this point has long been settled in Maryland. Johns v. Caldwell, 60 Md. 259, 262; Grabill v. Plummer,

95 Md. 56, 60, 51 A. 823; Smith v. Warrenfeltz, 116 Md. 116, 121, 81 A. 275; Warehime v. Graf, 83 Md. 98, 101, 34 A. 364; Cecil v. Cecil, 19 Md. 72, 81 Am.Dec. 626; Bagby Md.Law Execs. & Admrs., 307; Code (1939 Ed.), Art. 5, Sec. 65.

Although no motion has been made to dismiss the bill, we feel that this is one of those cases where the Court should do so, sua sponte, and we, accordingly, so rule. Powell v. Curtis, 78 Md. 499, 28 A. 390.

In this connection it is appropriate to add that, apart from the dismissability of the appeal, we find no error in the above-mentioned action taken by the Orphans Court. According to the record, all that the Court had before it were the simple facts that the executrix (appellant) produced two papers, each purporting to be the last will and testament of Glen Stuart, deceased; that one (dated April 15, 1938) was executed in all respects in conformity with the statute; that, however, it bore some interlineations in pencil which were admittedly placed there by the testator some time after this will had been executed, without being witnessed or authenticated in any way; that the other of these two papers was dated May 28, 1938, signed by the testator, but had only one subscribing witness. The facts and circumstances pertaining to these interlineations and to the purported will of May 28, 1938, were brought to the Orphans Court's attention by a petition of the testator's two daughters (the appellees) after a perfunctory order had been passed (March 9, 1945) admitting to probate the first will with the interlineations included as a part of it.

The executrix and the trustees under the will both answered this petition, neither admitting nor denying the allegations, and the Court thereupon heard testimony. This established the facts stated in the petition and caused the rescission of the Court's original order and the passage of another (May 4, 1945), which (1) rejected the second will because it was executed by only one subscribing witness instead of two--an obviously fatal defect, Code, Art. 93, Sec. 336; (2) declared that the 'pencil interlineations are not a part of the factum' of the will of April 15, 1938; and (3) admitted to probate this last mentioned will without the pencil interlineations.

It is to be noted that all of the aforegoing considerations related solely to the factum of the will, and therefore concerned its probate and...