In Re Paca

Boyd, C. J., delivered the opinion of the Court. A petition was filed in the Circuit Court for Queen Anne's County by William P. Rasin in which he made the following allegations': 1. That he files the petition as the next friend of William W. Paca, lunatic, who is an uncle of the petitioner, and who was adjudicated an incompetent by that court in May, 1873, and, as such nephew, he and his brother and two sisters are the nearest relations and the prospective next of kin and heirs at law of said William W. Paca, who is now confined at Spring-Grove, Maryland, is of advanced age, being in about his eightieth year, is hopelessly insane, and petitioner is advised that it is not probable that said lunatic will ever recover his reason or be competent to administer his estate; that he has never executed a will, and at his death the petitioner and his brother and sisters will receive the entire estate of William W. Paca. 2. That on the 6th of February, 1921, William B. Paca, son of John P. Paca, deceased, and the nephew of said lunatic, died, and after his death a paper writing purporting to be his last will and testament was offered for probate in the Orphans’ Court of Queen Anne’s County, a duly certified copy of which is filed with the petition; that by said paper writing an estate amounting approximately to seventy-five thousand dollars is attempted to be devised and bequeathed to strangers of the blood of William B. Paca; that at the time of the execution of the paper writing the alleged testator was of unsound mind and incompetent to exe ⁴⁷ cuto a valid will or testament, as will appear by the certificates of two physicians filed therewith; that the said paper writing should be declared void and of no effect, the said William B. Paca having in fact died intestate, and his estate should be distributed to William W. Paca, lunatic, solely, he being the only surviving brother of the late John P. Paca, deceased, the father of William B. Paca, and as the uncle of said William B. Paca is his sole next of kin and heir at law. 3.

That by tbe alleged will one thousand dollars was bequeathed to Madison Brown, who is also named as one of the executors of said will; that said Madison Brown is likewise the committee of William W. Paca, lunatic, having qualified on or about the 25th of May, 1905; that he has been requested by the petitioner, through his solicitor, as the committee of William W. Paca, to proceed to file the caveat against the probate of the alleged paper writing, but has refused to do so, and advisos petitioner that he purposes to assist in having said paper writing declared the last will and testament of William B. Paca, and its provisions executed; that it is apparent that owing to the position and diverse representative characters of said Brown, and the conflicting interests he might represent, he, as the existing committee of William W. Paca, lunatic, is not a proper party to institute and conduct caveat-proceedings against the alleged last will and testament of William B. Paca. 4. That it is to the interest of the estate of William W. Paca, lunatic, that a caveat be filed in his behalf against tbe alleged will of Wiliam B. Paca, so ■that its validity vel non may be determined in behalf of William W. Paca, lunatic, upon an issue or issues sent to a jury, who should decide whether the said William B. Paca was of unsound mind and incompetent to execute a valid deed or contract, etc.; that your petitioner is advised that not only on account of bis interest in the estate of William W. Paca, ⁴⁸ lunatic, as one of Ms nearest relations, etc., but likewise because of Ms interest in the welfare of said lunatic, it is proper for Mm to apply to this court as Ms next friend for the appointment of an ancillary committee or guardian ad litem, of the estate of the said William W. Paca, lunatic, so that some proper person shall he given authority to institute caveat proceedings in the orphans’ court. •5. “Your petitioner, therefore, shows that it is proper to apply to this court to appoint a committee or guardian ad litem, of the person and estate of William W. Paca, lunatic, properly authorized, ancillary to and independent of the committee of the estate of said lunatic now in existence, and if necessary for the purpose of this proceeding, temporarily to remove the present committee, and that said committee or guardian ad litem so to be appointed shall have authority to caveat the alleged last will and testament of William B. Paca, deceased, in the Orphans’ Court of Queen Anne’s County, Maryland.” That petition, together with the exhibits, was filed in the lunacy case in Queen Anne’s County, in which a trustee was appointed in 1873 and in 1905 Madison Brown was appointed trustee of the estate and committee of the person of William W. Paca, lunatic, in the place of Joseph Basin, deceased. A decree was passed by the lower court dismissing the petition and amended petition, and denying the prayer for relief therein. The record only contains onq petition and there is no amended petition in it.

There is no formal prayer in the petition, unless paragraph 5, above quoted, may he so considered. There is no prayer for process against Madison Brown, trustee and committee, and there is nothing in the record to show that he had any notice of the proceeding. Whatever the powers of a court of equity, which has appointed a committee, may he over him, it certainly would be bad practice for the court to grant such relief as is impliedly asked for, without giving ⁴⁹ him notice of the proceedings and an opportunity to answer, if he desires to do so. We understand that the judges in the lower court were not satisfied that they had power to act, and we are requested to express our views as to what the correct practice is, under such circumstances as are shown by the petition and exhibits.

We are not aware of any direct decision in tbis State as to the proper method to pursue when it is alleged that the committee of a lunatic is interested in a bequest to Mm, and is also one of the executors, in a will made by one who is alleged to have been incompetent to make it, and that it is- to the interest of the lunatic to have its validity vel non determined. With the petition there were filed affidavits of two physicians, who swore that they knew the testator intimately for many years, and that he was not in their opinion of sound and disposing mind and capable of making a valid deed or contract. The facts alleged in the petition and exhibits are of a character which would seem to demand of a court having jurisdiction and control over a lunatic’s person and estate to take some action to have the facts, passed upon. If it be true that William W. Paca is the only heir and next of kin of William B.' Baca, no one else could caveat the will, and if the facts alleged are sustained in a caveat proceeding,, it will very materially add to the lunatic’s estate.

It may he that his heirs and next of kin in reality have more interest in the result than he has, for if he has ample means now for his comfort and support, and will never recover so as to will his estate, they are the parties who will actually profit if the will is set aside, but while they have no legal interest in hisi estate during his life, that ought not to prevent the court from taking such steps as are necessary to have the question determined. It is manifest that Art. Brown would not be the proper person to conduct a caveat, as without reflecting on his integrity in any way, the la,w would not permit him to be the sole representative of the lunatic in litigation which he was interested in defeating. ⁵⁰ The question is, then, what can be done? In Hamilton v. Traber, 18 Md. 26 , Judge McSherry referred in bis clear and interesting way to the powers of courts of chancery over the persons and estates, of lunatics.' There was then before the court the sale of real estate of a non