Glass v. Ramsey

Martin, J., delivered the opinion of this court. By the agreement of counsel in this case, it is stipulated, that . the depositions filed in the proceeding before the orphans court, shall be made a part of that proceeding, subject to all objections [459] on the ground of admissibility, and from the points filed by the counsel for the appellants, we find, that the only exception ■taken to the admissibility of these depositions is, that they cannot be introduced to establish or contradict the finding of the jury in the trial of the caveat, in which the verdict imputes to both the appellees the fraudulent procurement of the paper purporting to be the last will and testament of George Hutson, out of whoso estate compensation is new claimed by them for costs and expenses in employing counsel to resist the caveat. It is certainly true, that this finding of the jury is to be treated as conclusive, with respect to all questions touching the validity of the wilt. The case of Reed vs. Jackson, 1 East., 355, cited by the counsel for the appellants, sustains this proposition. But when upon a new and different issue, founded on a claim for costs and expenses incurred by the appellees in the discharge of the duties imposed upon them as executors by the letters testamentary, the finding of the jury upon the caveat is collaterally introduced, to affect the propriety or legality of such claims, it is like all other evidence of that character, open to explanation. And taking the depositions furnished by the counsel of the caveators, or the trial before the orphans court, into consideration, the conduct of Hugh Jenkins, one of the executors, is relieved from all imputation of fraud, so that the order of the orphans court, allowing to the appellees, counsel fees and costs, is covered by the opinion of this court in the case of Compton vs. Barnes, 4 Gill, 55. There is no ground for disputing the correctness of the order of the orphans court allowing to the appellees their commissions. These were allowed for services actually rendered to the’_estate, by the appellees, as executors, and the propriety of this order also, is fully vindicated by the case of McKim and Marriott, vs. Duncan, 4 Gill, 72. The order of the orphans court is therefore affirmed. ORDER AFFIRMED