Greenhawk v. Quimby

Johnson, J., delivered the opinion of the Court. This is an appeal from two orders of the Orphans’ Court of Talbot County, passed on October 2nd, and October 30th, 1934, the first of which orders, upon the petition of Emma G. Quimby, beneficiary, and Edward T. Miller, executor, of the will of Reuben N. Greenhawk, deceased, directed the payment by appellants in this court, caveators below, (1) of the costs in the Circuit Court for Talbot County, to which issues had previously been sent and answered, and (2) costs incurred in this court, to which the case came upon appeal by the beneficiary and executor. See Quimby v. Greenhawk, 166 Md. 335 , 171 A. 59 . This order was passed upon petition of appellees and answer of appellants, which answer, however, challenged the right of the court to pass it.

Subse ³⁹⁸ quently appellants moved for a rescission of the order, but the court overruled this motion, and this gave rise to the second order appealed from. It is unnecessary to discuss in detail the first appeal between the parties, supra, other than to observe that the usual issues relating to testamentary capacity, etc., were first framed in the Orphans’ Court of Talbot County and, during October, 1932, sent to the Circuit Court for Talbot County for trial, which resulted in favor of caveators, but the rulings were reversed by this court by reason of errors in the admission of certain testimony. Quimby v. Greenhawk, supra. Since that decision, it appears from the record, and is admitted by the parties, that upon suggestion of removal the issues were sent by the Circuit Court for Talbot County to the Circuit Court for Anne Arundel County for trial, which will not be held until April, 1935.

Two important questions are suggested from a consideration of,the record: (1) Did the Orphans’ Court of Talbot County under the above circumstances have jurisdiction to pass the order in question? (2) If the court had such jurisdiction, was its passage a proper exercise of judicial discretion? So far as we are aware, this is the first time the first of these questions has ever been presented to this court for determination. In its consideration, it must be borne in mind that jurisdiction of orphans’ courts is special and limited, and their authority is only such as is conferred by statute.

Snook v. Munday, 90 Md. 701 , 45 A. 1004 ; Stanley v. Safe Deposit & Trust Co., 87 Md. 450 , 40 A. 53 ; Bowie v. Ghiselin, 30 Md. 553 ; Grant Coal Co. v. Clary, 59 Md. 441, 445 ; Code, art. 93, sec. 271; Fidelity & Deposit Co. v. Freud, 115 Md. 29, 30 , 80 A. 603 . Appellees contend that the court’s judisdiction to pass the order was acquired by virtue of section 264 of article 93 of the Code, but we find nothing in the language of this section to sustain such contention. On the contrary, the pertinent words of the section providing “and the orphans’ court shall give judgment or decree upon the ³⁹⁹ bill and answer and depositions or the finding of the jury, and may in all cases of contest award costs, in their