Lewis v. Mason

Urner, J., delivered the opinion of the Court. The two appeals in this case question the propriety of orders passed by the Orphans’ Court of Washington County appointing an administrator ad litem and refusing one of several issues proposed for transmission to the circuit court for trial. The administrator ad litem was appointed to defend the will of Ellen Carpenter, deceased, against a caveat filed before probate. No reason for such an appointment is suggested by the record except the fact that none of the persons interested in sustaining the will appeared and answered the caveat in pursuance of the court’s order to that end, though all were duly notified.

This was not in itself a sufficient ground for the action of which the first appeal complains. The beneficiaries of the will were legally capable of defending it against the caveat, and, so far as the record shows, they were not entitled to have their defense made by an administrator ad litem at the charge of the estate. If the caveat had been filed after probate, it would have been ³⁴ the duty of the executor to defend the will, and his reasonable expenses incurred in the litigation would be payable out of the estate regardless of the result. Parker v. Leighton, 131 Md. 407 .

But when a caveat is filed before the probate of the will, it is beyond the authority of the orphans’ court to charge the estate with counsel fees for services to- the contesting parties. Koenig v. Ward, 104 Md. 564 . In this case the caveators have an interest in the residuary estate which would justify their concern for the application of the rule just stated, whether the caveat succeeds or fails. It is only for the purpose of providing, when reasonably necessary, for the defense of the will offered for probate that the appointment of an administrator ad litem is permissible.

Friedenwald v. Burke, 122 Md. 156 ; Fmmert v. Stouffer, 64 Md. 558 ; Hunter v. Baker, 154 Md. 307 . In the cases cited, action by the court to insure a fair investigation as to the validity of the wills in question was considered requisite. But in none of those cases is there any recognition of the theory that when competent parties, interested in sustaining a will, have been formally summoned and notified to make their defense, they may secure the benefit of an administration ad litem by merely disregarding the court’s process. The order of appointment here contested was passed on the day designated by the court for the appearance of the parties summoned.

The record does not disclose any inquiry or information as to the real cause of their failure to appear in response to the court’s order, or as to any circumstances by which the appointment of an administrator ad litem might be justified. .There is consequently no apparent and adequate basis upon which it can be sustained as an exercise of the court’s sound discretion. The appeal from the order appointing the administrator ad litem was not entered until he had filed his answer to the caveat and a replication had been filed by the caveators and issues had been proposed by them for transmission to the circuit court. It is contended that by thus proceeding the caveators conclusively acquiesced in the previous