Warford v. Colvin

• Decision Date: 13 August 1859
• Parties: ELISHA WARFORD and Others, Lessee v. RICHARD COLVIN.
• Court: Maryland Court of Appeals

14 Md. 532

ELISHA WARFORD and Others, Lessee v. RICHARD COLVIN.

Court of Appeals of Maryland.

August 13, 1859

Appeal from the Superior Court of Baltimore City.

Ejectment for various pieces or lots of ground in the city of Baltimore, brought on the 24th of April 1856. Plea, non cul. The lessors of the plaintiffs, (the appellants) claimed title as heirs at law of Rachel Colvin, deceased, and the defendant (the appellee) claimed as devisee under her will, executed on the 6th of April 1848.

Exception.--It was admitted that Rachel Colvin died seized of the property in dispute, and the lessors of the plaintiff offered evidence tending to prove they were her heirs at law, and then rested. The defendant then offered in evidence a copy of the last will and testament of the said Rachel Colvin, bearing date the 6th of April 1848, and of the probate thereof duly certified under the official seal of the Register of Wills of Baltimore City. This will disposed both of real and personal property, and by it the testatrix appointed the defendant, Richard Colvin, her sole executor, and made him the sole residuary devisee and legatee of both her real and personal estate. The defendants also offered in evidence certain proceedings in the Orphans Court of Baltimore City, from which it appears that when this will was propounded for probate in that court by the executor, certain parties, including the lessors of the plaintiff, as next of kin and heirs at law of Rachel Colvin, filed petitions or caveats against admitting it to probate, which were answered by the executor and thereupon certain issues were framed and sent by that court to the Superior Court of Baltimore City for trial among which were the following:

" 1st. Whether the said instrument of writing, purporting to be a will of Rachel Colvin, dated the 6th day of April 1848, was executed and published by the said Rachel Colvin as her last will and testament, when she was of sound and disposing mind and capable of executing a valid deed or contract.

2nd. Whether the said instrument of writing, purporting to be a will of said Rachel Colvin, dated the 6th day of April 1848, was executed by the said Rachel Colvin under the influence of suggestions and importunities of some person or persons when her mind, from its diseased and enfeebled state, was unable to resist the same."

The Orphans Court directed that at the trial of these issues, the parties filing the petitions or caveats should be plaintiffs and Richard Colvin defendant. Upon suggestion that an impartial trial could not be had in the Superior Court, the record containing the proceedings was transmitted to the Circuit Court for Baltimore County, and, upon trial there, the jury found in favor of the caveatee upon all the issues. At this trial, exceptions were reserved by the caveators to several rulings of the court, and an appeal was taken by them, and these rulings were affirmed by the Court of Appeals. 7 Md. 582. The Orphans Court of Baltimore City then rendered a final decree, confirming the findings of the jury on all the issues, and ordered and directed this will to be admitted to probate as the last will and testament of the said Rachel Colvin.

The defendant further proved that after these proceedings were had in these several courts, he entered into possession of the property now in dispute, as devisee under said will, and has thenceforth remained, and now is in the possession of the same. It was admitted that the now lessors of the plaintiffs are all of them some of the same persons who were the caveators to the will mentioned in the above proceedings, and that the now defendant is the same person who was the caveatee named in said proceedings.

The defendant, by his counsel, then maintained and insisted and prayed the court to instruct the jury, that the proceedings so as aforesaid given in evidence are, as against the lessors of the plaintiff, not merely prima facie but conclusive evidence that the paper writing set out in said proceedings, purporting to be the will of said Rachel Colvin, dated the 6th of April 1848, was executed and published by the said Rachel Colvin as her last will and testament, and when she was of sound and disposing mind, and capable of executing a valid deed or contract, and that the same was not executed by the said Rachel Colvin under the influence of suggestions and importunities of some person or persons, when her mind, from its diseased or enfeebled condition, was unable to resist the same.

This instruction the court (Lee, J.) granted, and to this ruling the lessors of the plaintiff excepted, and the verdict and judgment being against them, appealed.

The cause was argued before LE GRAND, C. J., TUCK and BARTOL, JJ.

G. L. Dulany and Wm. Price for the appellants.

1st. The rule rendering a former judgment conclusive requires four things: 1st. That it should be directly upon the point. 2nd. That the same point be involved in the second suit. 3rd. That the parties be the same. 4th. That the former judgment be not only direct, but also final and conclusive, in the court of which it is a judgment, upon the subject matter. 1 Starkie Ev. (Ed. 1826,) 190, 205. 3 Cow. & Hill's notes to Phill. Ev. (2nd Ed.) page 826, note 586. Wicke v Caulk, 5 H. & J. 42. Abat v. Songy, 7 Martin, (La.) 274. In the present case the third requisite is wanting, the parties not being the same, for in the former suit Richard Colvin was sued as executor by the appellants as distributees, while here he is sued as devisee by the appellants as heirs at law, and different capacities constitute different persons. Tilly v. Tilly, 2 Bland, 445. Binney's Case, Ib. 108. 1 Starkie Ev. 201. Coppin v. Coppin, Select Cases in Chan. 30, and same cases in 2 Peere Wms. 295. Meliorucchi v. Assurance Co., 1 Eq. Cases Abr. 8. Johnson v. Mills, 1 Ves. Sen. 283. Ward v. Northumberland, Anstr. 477. Rann v. Hughes, 7 Term. 350.

2nd. Nor is the judgment by the Orphans Court granting probate conclusive in the case of real estate. In England, during the Saxon supremacy, there was no distinction whatever between the lay and ecclesiastical jurisdiction. The County Court over which presided the Bishop of the Diocese, and the Aldermen, or in his absence the Sheriff of the county determined all causes, whether civil or spiritual. But after the Conquest, William the Norman, willing the gratify the monasteries and foreign clergy, who had warmly espoused his title, separated the two jurisdictions and ordered that all ecclesiastical questions should be thereafter tried before the Bishop alone. The old system was restored by Henry I. upon his accession to the throne. It continued however but a short time, having been overthrown by a synod convened at Westminster, in the third year of this king's reign, which ordained that no Bishop should attend the discussion of temporal causes. The separation being thus rendered final and complete, the clergy began to consider in what way they might increase the power of their courts. By that charter of the Conqueror, which introduced the new distribution of justice, it had been expressly declared that the spiritual courts should entertain jurisdiction over all bequests to pious uses. Afterwards when Henry I. was induced to direct in his coronation charter, that the goods of an intestate should be divided pro salute animæ , this immediately made all intestacies ecclesiastical causes as much as bequests to pious uses had been before. As the ecclesiastical courts had thus the disposition of intestates' effects, the probate of wills of course followed; for it was thought just and natural that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was superseded thereby. These encroachments upon their ancient jurisdiction were viewed with great jealousy by the ordinary tribunals of the realm, and where a will was of a mixed nature, concerning both real and personal property they absolutely prohibited the ecclesiastical courts from taking any probate. Afterwards prohibitions quoad the real estate were granted. But at length the spiritual courts were allowed to take probate of wills disposing of both real and personal property, but the probate, so far as lands were concerned, was rejected by the common law courts as being no evidence. 2 Bl. Com. 494. 3 Ib. 61-97, Bac. Abr. Tit. Ecclesiastical Courts. 2 Greenl. Ev. sec. 672. Smith v. Steele, 1 H. & McH. 419, 423. About the time the law was settled as above stated, the first testamentary Acts were passed in this State, and the same construction prevailed here, that the commissary under the Acts should proceed to take probate of the will although it contained a disposition of real estate. By the Act of 1715, ch. 39, sec. 29, the powers of the probate judge were carried a step further than in the mother country, for by it he was authorized to take probate or caused to be proved any last will or testament within the province, although the " same concerned title to lands." 1 H. & McH. 423. 2 Bland, 86. With respect, however, to the effect to be given to the probate of a will containing a disposition of real estate there is some difference between the law of England and that of Maryland. There, as we have seen, such a probate, so far as the realty is concerned, has no effect whatever, but in this State it has always been considered prima facie evidence, but it has never been held to be conclusive. Townshend v. Duncan, 2 Bland, 86. Smith v. Steele, 1 H. & McH. 419. Carroll v. Llewellin, Ib. 262. Massey v. Massey, 4 H. & J. 141. Cheney v. Watkins, 1 H. & J. 533. Randall v. Hodges, 3 Bland, 479, 481. These cases, with the exception of the last cited, were decided prior to the Act of 1831, ...