Berry v. Safe Deposit & Trust Co.

McSherry, C. J., delivered the opinion of the Court. This appeal is from the Orphans’ Court of Baltimore City. The facts with which we have to deal are as follows: After the will of George R. Berry had been admitted to probate in that Court a petition was filed assailing its validity on the usual grounds of mental incapacity and undue influence. Issues, were then framed and sent to the Superior Court for trial.

At ²⁴² the close of a protracted contest a verdict was rendered by the jury in favor of the caveators on two of the issues and thereupon a motion was made for a new trial. This motion was subsequently heard and was overruled on December the twenty-sixth, nineteen hundred. On the next day, the twenty-seventh, one of the counsel of the caveators took to the* Clerk of the Superior Court a copy of the docket entries and of the issues and a statement of the findings of the jury thereon—which copy had not been prepared by the clerk—and procured the clerk’s signature and attestation thereto and then carried the paper to the Orphans’ Court. Very shortly after the counsel had secured the clerk’s signature to this previously prepared ■document, and on the same day, an order was filed by the executor and caveatee in the Superior Court directing the record to be transmitted to this Court on appeal from rulings of the Superior Court.

On the twenty-eighth of December at the request of the caveators’ counsel, without notice to the counsel ■of the caveatee, and whilst the Orphans’ Court was uninformed that an appeal had been prayed from the rulings of the Superior Court, the Orphans’ Court passed an order revoking the. probate which had been previously granted. Thereupon, the same day, a petition was filed by the executor asking the Orphans’ Court to rescind its order of December the twenty-eighth, on the ground that it had been improvidently passed. The Orphans’ Court very promptly rescinded its previous order of December the twenty-eighth and from that rescinding order passed on January the ninth, nineteen hundred and one, this appeal was taken by the caveators. The single question for decision is: Was the Orphans’ Court right in rescinding the order of December the twenty-eighth which had undertaken to revoke the previous probate?

About the propriety of that action we entertain not the slightest doubt. When the issues were sent by the Orphans’ Court to the Superior Court for trial the case passed beyond the jurisdiction and out of the control of the Orphans’ Court, and until nothing remained for the law Court to do and until the latter had returned to the Orphans’ Court in a proper way the ²⁴³ result of its action on the issues, the Orphans’ Court continued to be wholly without authority to interfere with the probate in any manner whatever. Now, the Superior Court did not remand the record or certify the findings of the jury to the Orphans’ Court at all. Whilst no formal order by the Judge of the law Court directing the clerk of his Court to certify back