Humes ex rel. Mills v. Shillington

Goldsborouuh, J., after having stated the case (ante pp. 34-7-349,) delivered the opinion of this Court, as follows: By section 251, of Article 93 of the Code, provision is made that in case of an appeal from the final decree of an Orphans’ Court, any motion or application to the Court, and the order or decree therein shall be filed as part of the proceedings, and shall be subject to the judgment and revision of the Appellate Court. In view of the authority thus conferred, we shall consider the ruling of the Orphans’ Court in rejecting the petition of the caveators, in which they pray that another individual may be substituted as their next friend in the place of Leonard J. Mills. This application was made by infant petitioners who are always regarded as under the especial protection of the Orphans’ Court. They allege a very sufficient reason for the interposition of the Court: that Mills was a material witness for them, and that the materiality of his evidence was discovered after the disclosure of the evidence of William H. Ward, the attorney who wrote the will in controversy.

We think the Court ought to have granted the application upon terms, if any costs had been incurred for which Mills as a party to the record would have been answerable. In the case of Helms vs. Franciscus, 2 Bl. Ch. Rep., 550, it is said: “It is clear that any one so long as he stands before the Court as next friend of an infant or feme covert plaintiff, being liable for costs, is therefore an interested and incompetent witness.

But where the object is not to favor the escape of such next friend from any liability, arising from the suits having been improperly instituted or conducted by him, he may be made a competent witness by being discharged, and ³⁵⁸ having another put in his place; and the Court will, on application, at any time before final- hearing, allow a change to be made for that purpose, on its being shown to be necessary, and on the costs then incurred being secured. The analogy between proceedings in Chancery and in the Orphans’ Court, in this particular, would have justified the Court in ordering the substitution, and we think it was error in the Court to refuse to do so. The Court also erred in dismissing the petition of the caveators in which they pray for a plenary proceeding, and that the parties applying for a probate of the will be required to answer under oath. This petition was designed to lay the foundation for a plenary proceeding,