Linthicum v. Linthicum

Constable, J., delivered the opinion of the Court. The appellants, two of the three only sons of the late Charles G. Linthicum, filed their petition in the Orphans’ Court of Howard County, alleging that the will of the said .Charles G. Linthicum had been improvidently admitted to ¹⁵¹ probate; in that, it was so admitted without notice having been given to the petitioners as to the time it was to- be o ffered and without their attendance, and praying that the probate thereof and the letters testamentary granted thereon should be revoked. A. Howard Linthicum, the other son, to whom letters testamentary had been issued, he having been designated as executor in the will, tiled an answer; and testimony was taken at the hearing upon the petition and answer. From the testimony it appears, that one of the petitioners lived in Baltimore City and the other in Howard County, within a few miles of his father’s late home, and that the appellee made his home with his father.

That the petitioners had no knowledge of the existence of a will, and were not notified by anyone that one would be offered for probate; and that the first notice received, was in a letter from the solicitor1 of the executor to one of the petitioners the day after the probate. The will was prepared by Drs. Nichols and Cissell, and retained in the possession of Dr. Nichols until presented by him, to the1 Orphans’ Court for probate. Those present at the proof of the will were the witnesses to it and the son, A. Howard Linthicum.

The Court refused to revoke the probate and the letters testamentary granted thereon and dismissed the petition; and it is from that order this, appeal was taken. The sole contention of the appellants is, that, under the provisions, of the Code, it was the duly of the one propounding the will for probate to have; given reasonable notice to them of the time at which the will would be offered for probate, and, that, therefore; the Orphans’ Court, in the absence of such notice, did not acquire jurisdiction to admit the will to probate. The provisions of the Code, affecting this question, are found in Sections 343, 344 and 345 of Article 93 and are as follows: “343. If any will or codicil be exhibited for proof to the register of wills in the county wherein the same ¹⁵² may be proved, in tbe recess of tbe Court, and any of tbe next relations of the deceased shall attend and make no objection, or enter no caveat, or if it shall appear that reasonable notice of the time of exhibiting the same hath been given to such of the next relations as might conveniently be.therein served, and no person shall object or enter a caveat, the register shall proceed to take the probate thereof. “344.

If any such will be exhibited for probate to the Orphans’ Court of the county where the same may be proved, and any of the next relations of the deceased shall attend, or if notice shall appear to have been given as aforesaid, and no caveat shall have been made against the same, the said Court may forthwith proceed to take probate thereof. “345. If any will or codicil be exhibited to the Orphans’ Court, and none of, the near relations