5. Issues

Estates & Trusts Article §2-105 provides: “In a controversy in the [orphans’] court, an issue of fact may be determined by the court”, and, “At the request of an interested person made within the time determined by the court, the issue of fact may be determined by a court of law.   When the request is made before the court has determined the issue of fact, the court shall transmit the issue to a court of law.”   This has been held to apply only to questions of fact and not of law.   Nugent v. Wright, 277 Md. 615 (1976).   Indeed, there should be only one issue framed for each question of fact.   Id.

Maryland Rule 6-434 provides:

“In any proceeding, the orphans’ court, upon petition, may transmit contested issues of fact within its jurisdiction for trial to the circuit court of the county in which the orphans’ court is located.   The petition shall set forth separately each issue to be transmitted.   Each issue shall present a single, definite, and material question of fact.”

Although usually seen in caveat proceedings, transmittal of issues may be requested by petition in any matter.   It is necessary, however, that issues of fact and not issues of law are framed.   Nugent v. Wright, 277 Md. 615 (1976).   Issues related to law, of course, are the subject of appeals, not of shifting to another court.   Once there is an issue transmitted to the Circuit Court, a jury trial can be prayed – traditionally one of the reasons for the transmittal of issues.

After issues have been transmitted, the Orphans’ Court, upon petition, can modify the framed issues, but only with leave of the circuit court if within 15 days of the trial date.   The Orphans’ Court’s functions are suspended until the verdict from the trial court.   Hill v. Lewis, 21 Md. App. 121 (1974); Forsythe v. Baker, 180 Md. 144 (1941).   The fact that an issue is in the law court does not affect the jurisdiction of the Orphans’ Court. 62 Op. Atty Gen’l 900 (1977).   The transmittal of issues should not operate to stay any proceedings in the Orphans’ Court that could carry forward as long a litigant’s rights are not jeopardized, depending on the determination of fact by the Circuit Court.