Brown v. Johns

Yellott, J., delivered the opinion of the Court. This record presents an appeal from an order or decree of the Orphans’ Court of Baltimore County, directing that the costs of the caveators and caveatees, incurred in the controversy relating to the wills and codicils of the late John Tolly Johns, be paid out of the estate of the decedent. The appellee in this appeal had, soon after the death of the said John Tolly Johns, in conformity with the legal obligations imposed upon him by the statute, deposited in the office of the Register of Wills a number ³³⁴ of wills and. codicils supposed to have been executed by the said Johns at various periods anterior to his decease. The validity of these supposed testamentary papers being contested, plenary proceedings were instituted, and the Orphans’ Court ordered issues to be framed and sent to a Court of law for determination.

In this proceeding the caveators were ordered to be made plaintiffs and the caveatee defendant. Under the operation of this order the controversy was carried into the Circuit Court for Baltimore County, and from that Court was removed to the Court of Common Pleas of Baltimore City, where, by the verdict of a jury, it was found that, the decedent, at the time of the execution of these supposed testamentary dispositions of his property, was not of sound and disposing mind and capable of executing a valid deed or contract. The cause was then brought into this Court by appeal and the judgment of the Court below was here affirmed. In rendering its decision this Court said that, “The awarding of costs in a trial of issues from the Orphans’ Court is for that Court exclusively.

The Court of law, in which the issues are tried, has no power to enter a judgment for costs on a verdict of a jury, and this Court is equally without authority in this respect.” Johns vs. Hodges, et al., 60 Md., 228 . The transcript from the Court of Common Pleas of Baltimore City having been filed in the office of the Register of Wills of Baltimore County, the Orphans’ Court passed an order or decree in conformity with the finding of the jury upon the issues, and in making a final disposition of the controversy, directed that all the costs which had been incurred by the caveators and caveatees should be paid out of the estate of the said John Tolly Johns. This.appeal was taken from that portion of the"order relating to the costs which involves the sole question presented for determination. It was decided in Browne vs. Browne, et al., 22 Md., 116 , that the Orphans’ Court is the only proper tribunal ³³⁵ to determine the question of costs in cases of this nature.

And in Levy & Barry vs. Levy, et al., 28 Md., 29 , it was held that, “by the 250th sec. of the 93rd Art. of the Code, the Orphans’ Court is vested with discretionary power to award costs and enforce their payment.” In 60 Md., it has been decided that the exercise of this power, “ is for that Court exclusively.” As the exercise of the power is not only discretionary hut exclusive, it is apparent that a remedy for any error of judgment supposed to have been committed, cannot be invoked by an appeal to this