The Cecil Whig. [volume] (Elkton, Md.) 1841-current, 1882-10-07

| Court III tins case, III your paper ABOUT
the last of January, 1882, and il you will
now republish it, before that OF the
Cour: Of Appeals, it will show no ~ near
~ they agree. Yours truly, Nee.
OPINION BY JUDGE BARToL.
These eases were before this count at
the April term, 1881. At that time the
| Appeals were from an order OF the Or
phan's Court sustaining the exceptions
Of the jurisdiction OF the court, and dis
missing the petitions of appellants, For
the reasors which will be found stated
at length. il the opinion of this court OF
| the tonne appeals 90 Nd, l12), the or
| del Was reversed and the cases remanded
| with directions TO the Orphan's Court to
hear the testimony and determine the
cases upon the peadings and proof. In
obedience to that direction, the court be-
low heard the testimony and the argu-
ments presented 10y the respective couli-
sci, a4d on the ed day of January, loS2,
pass. q an order in each case, dismissing
the petition with costs; from these orders
the present appeals have been taken, and
by consent, have been argued together.
Tue decision ON the former appeals
rcn,.ers it unnecessary to refer to many
of the questions argued at the bar.
l. appears from the record that the
proceedings before the Orphans Court
upon the c;veat to the will of Mrs. Ma
graw. deceased, including the verde: of
the Jury III the Circuit Court, which re-
suited in the order of October 18th, 1875,
setting aside the will and rcvoking the
letters t"stamentary before granted to
Adam r. Magraw, were all had by the
consent If the caveators and OF Adam
+. Nagraw, executor, who was sole ca
veatee. What might be the legal effect
of tie proceedings upon the rights OF par
ties TO whom, by the will property and
estates were limited in remainder. and
who were not represented i'll court dar
ing the progress of the proceeding, it is
not necessary now to express my opin-
ion. Nor are we called on to construe
the will and to determine the validity of
the several limitations in trust after the
life estates devised by the will. The de-
cision of these appeals depends upon the
determination of other questions, which
| will be presently considered.
Before passing to them, however, il is
proper to say, that in original petitions
fled in the Orphans Court, upon tie al
legat ions Of which alone this court was
called npon to decide upon the former
charges ol fraud and collision were made
against counsel concerned, but upon the
proof produced, are shown to he entirely
without foundation in fact. Errors and
mistakes may have been committed, but
we find nothing in the evidence to Justify
the conclusion that there was, in fact,
any fraud and collision as charged.
The only question which it is neces-
sary for us to decide is whether these pc
| titioners (the appellants) are entitled to
impeach the validity of the order of the
| Orphans Court passed on the 18th day
Of October, 1873, which. b. their petit
tions. they seek to have set aside and an
| nulled.
And first. as to the petition of MIR.
Munnickhuysen. 1t appears from the
record that he claims to be creditor Of
Mrs. Magraw, deceased, upon a single
pending in the Circuit Court for Howard
county. On the former appeal it was de
cided that as creditor he has no such
interest in the question, whether the will
was good OF bad, as entities him to con-
trovert The action of the Orphans Court
about it. 8. Nd, 1872.
Has he any standing as a trustee un-
der the will F.? In his petition he alleges
THAT large property, real and personal,
was left to him in trust under the will.
Upon the former appeal, which came up
on a demurrer to the petition, this court
was OF course compelled to act only upon
the avertmeuts in the petition, without
reference to the answer, which alleged
that the petitioner had renowned and re-
signed his office of trustee, as we'll as
that of executor It appears from the evil
ticnce in the record that the statement
i'll the answer in this respect is true.
BY an amicable arrangement and SCI
tIement made ON the 9TH day of July.
1878, signed by Mr.. Poe as counsel for
the caveators and Mr.. Farnandis as coun-
sci for Mr.. Munnckhusen, the latte,
d, greed to rcuounce his executorship, and
also to rennunce his trusteeship under
the will. He was paid $4,000 as consid-
Grafton for this agreement. In pursuance
thereof he filed petition in the Orphans
and praying to be relieved therefrom, aud
an order was passed by the court on the
22d day of July. 1878, accepting his
resignation and discharaging him from
the office of executor.
He never, in fact. accepted the office
of trustee, except as such acceptance was
implied by his assuming the office of ex
ecutor, his resignation and surrender OF
the latter office left him. therefore. with.
ont the rights. duties and responsibilities
of trustee. But if this We're not so. it is
clear that he cannot now set up or claim
any rights under the will, as trustee, il
the face Of his express agreement to sur
render his office as trustee. and after
having received and retained a large con
sideration for entering into the agree
ment.
1t follows, that neither as a creditor o
the deceased. nor as a trustee, has the
petitioner any interest under the will en-
titling him to maintain this suit or to i'm
peach the Judgment of the Orphans
Court.
| has rights under the will, there are othe
fatal objections 20 the maintenance o
his petition. The proof shows that soo1
after his return from Europe in Novem
Der, 1878, he heard of the proceedings il
the Orphans Court, which had been in
stituted during his absence; and it furth
. er appears frcm the record Of the Circuit
Court for Howard county that he had il
September 1874, actual notice that the